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To obtain a temporary restraining order (“TRO”), a party must show likelihood of success on the merits, lack of adequate remedy at law, and irreparable harm if the restraining order is not granted.  Additionally, they must show that immediate and irreparable injury, loss, or damage would occur before the opposing party can be heard.  If these requirements are met, the court must balance the potential harm to the parties and the public interest.  In a recent case, a university student sought a TRO to prohibit the school from removing him from student housing.

According to the district court’s memorandum opinion, a senior student, identified as “John Doe,” sued his university in a federal court in Illinois for Title IX, Fair Housing Act, and state law claims.  He moved for a temporary restraining order to prohibit the university from requiring him to move out of student housing and banning him from other residence and dining halls for the rest of the school year.

Likelihood of Success

In considering a temporary restraining order, the court must determine if, under the totality of the circumstances, the plaintiff has a likelihood of success on the merits for his Title IX claim. The court focused on the plaintiff’s Title IX claim.

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Washington second degree criminal trespass is a misdemeanor. To convict a person of second degree criminal trespass, the state must show that they knowingly entered or remained unlawfully on someone else’s property.  A juvenile recently challenged a guilty adjudication for second degree criminal trespass, arguing there was insufficient evidence that he had knowingly entered and unlawfully remained on Port property.

According to the appeals court’s opinion, the police received a complaint from a Port employee that the thirteen-year-old juvenile was skateboarding on Port property.  The property was posted with several signs prohibiting skateboarding.  The employee stated Port employees has contacted the juvenile and asked him to stop, but he had responded with profanity.

The officer issued the juvenile a no trespassing notice and told him he was trespassed from Port property for life.  The juvenile, the officer, and the employee all signed the notice.

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When a court finds a parent has engaged in a history of acts of domestic violence, a permanent Washington parent plan may not require mutual decision-making or a dispute resolution process other than court action if the court finds a parent has a history of acts of domestic violence.  RCW 26.09.191. A mother recently challenged a parenting plan that required joint decision making for health care and the court’s failure to enter a restraining order after she presented substantial evidence of a history of domestic violence.

According to the appeals court’s opinion, the parties got married in 2013 and had a child in 2014.  They divorced in August 2015.  The parenting plan acknowledged a “[h]istory of intimidation and verbal abuse. . . in the presence of [the] child,” but the trial court did not impose restrictions.

The father started a relationship with another woman in February 2015 and they had a child.

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A person posting a video of illegal activity on social media may find themselves facing Washington criminal charges.  In a recent case, a man challenged a firearm possession charge arising from a video he had posted on Snapchat.

According to the unpublished opinion by the appeals court, the defendant posted a 20-second video of himself on Snapchat.  The video, as described by the court, depicted the defendant smoking marijuana and listening to music.  At one point in the video, the defendant pointed a handgun at the camera and simulated firing it.

The defendant was in a relationship with a woman with two children.  The children’s father saw the video and called the police due to concerns for the safety of his children.

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When a student files suit against their school alleging a Title IX violation arising from a Title IX investigation and proceedings, the person who made the allegations is generally not a party to the lawsuit.  That person often has important information related to the allegations and the disciplinary process, however.  A Texas federal court recently ordered the person who made allegations of sexual assault to comply with a subpoena for a deposition in the accused student’s lawsuit against the university.

“John Doe” sued his university for breach of contract and violation of Title IX.  He alleged his ex-girlfriend falsely accused him of two separate incidents of sexual assault.  According to his complaint, the hearing panel suspended him and stated he would be eligible to reenroll in 2023. The hearing panel also directed him to go to therapy and counseling and complete online Title IX training before he reenrolled.  He would also remain on “conduct probation” while he was at the university.  He appealed the hearing panel’s decision, but it was upheld.

He filed suit against the university in April 2022.  As part of that case, he sought to depose “Jane Roe,” the woman who had made the sexual assault allegations against him.  She filed a motion to quash the subpoena.

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A non-parent may petition for Washington child visitation if they are a relative, have “an ongoing and substantial relationship with the child,” and show a likelihood the child will experience harm or a substantial risk of harm without visitation.  RCW 26.11.020.  In a recent case, a child’s grandparents appealed the trial court’s dismissal of their petition for visitation with their grandchild.

The father had residential time with the child under the parenting plan.  He lived with his parents for a period of time, such that the child stayed with his grandparents during his father’s residential time with him.

According to the appeals court’s opinion, the father had issues with drugs and mental illness.  He was arrested following an incident involving the mother, her brother, and the child. At some point thereafter, the father’s whereabouts became unknown to the parties.  The mother continued to allow the grandparents limited visitation with the child.  She attended the visits, sometimes with a relative.  The grandparents claimed they were supportive of the mother, but the mother and her family claimed the grandparents were rude, controlling, and aggressive.

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Washington civil protection orders have undergone significant changes recently, including changes to the duration of protection orders.  However, there are some cases filed before the new laws took effect that are still subject to the previous laws.  A husband recently challenged the duration of a Domestic Violence Protection Order (“DVPO”) under the former DVPO statutes.

According to the appeals court’s unpublished opinion, the petitioner and respondent were married for 25 years.  The wife filed a petition for a DVPO against the husband on September 20, 2021.  She alleged he had “assaulted [her] with his iPhone.” She also alleged he stood in the door to keep her from leaving.  The husband was not arrested, but police officers ordered him to leave the home.

The wife’s petition included information regarding past incidents of domestic violence by the husband, including  hitting her with a gallon of milk in 1998, kicking a coffee table at her injuring her legs in 2003, and throwing a bottle and hitting her shoulder in 2006.  The husband was arrested for the 2006 incident after the wife’s doctor reported it to the police. The husband was sentenced to probation and ordered to go to anger management classes.

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In certain non-violent, drug-related cases, offenders may be eligible for a “drug offender sentencing alternative,” frequently referred to as “DOSA.”  While serving the community custody portion of a Washington DOSAd, an offender must comply with the conditions imposed by the court.  A defendant recently challenged the revocation of his DOSA before the term of his DOSA community custody started.

According to the appeals court’s unpublished opinion, the defendant was convicted of unlawful possession of a controlled substance with intent to deliver and unlawful possession of ammonia with intent to manufacture methamphetamine in April 2017.  The trial court imposed a DOSA sentence of 55 months of confinement and an equal amount of time in community custody.  Conditions included participation in drug evaluation and treatment during community custody and prohibition of consumption or unlawful possession of controlled substances.  The defendant was also required to obey all laws.

Community custody for the DOSA was scheduled to begin in February 2021.  The defendant was serving community custody for other cases when he was first released from prison, so he was out of confinement for a period before his DOSA community custody began.

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The comment period has closed on the Department of Education’s (“Department”) proposed Title IX rule. The Department received more than 200,000 comments. The Department has not indicated an anticipated timeline for finalizing the rule.  The Title IX rule proposed and published under the previous administration reportedly received about half as many comments. That rule was proposed in November of 2018, received comments until February 2019, was published as final in May 2020, and took effect August 2020.  Given the number of comments to the new proposed rule and the number of issues being addressed in the comments, it could be quite a while before a new final rule takes effect.

The proposed rule would make significant changes to Title IX investigations and procedures, but it also includes other divisive changes.  One change that has drawn a lot of attention is the proposed rule’s clarification that Title IX’s protections against sex-based discrimination include discrimination based on sexual orientation and gender identity. The proposed rule would also provide protections for pregnancy and pregnancy-related conditions.

Individual schools, including the University of Washington submitted comments.  Education associations such as the American Association of University Professors  and the American Council on Education (“ACE”), whose comment was also on behalf of a number of other organizations, submitted comments.  The American Civil Liberties Union (“ACLU”) and The Leadership Conference on Civil and Human Rights, joined by a number of other organizations, also provided comments.

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A Washington appeals court recently reversed a conviction due to prosecutorial misconduct, despite finding there was sufficient evidence to support the conviction. The defendant was convicted of possession of a controlled substance with intent to deliver.  On appeal, he argued that the prosecutor had engaged in race-based misconduct by using the phrase “Mexican ounce” to describe the packaging of the heroin for which he had been charged.  He argued the prosecutor used this language to tie him to the drugs and to use “stereotypes of Mexican drug-dealing and dishonesty” against him.

Prosecutorial misconduct occurs when a prosecutor uses arguments to arouse the jury’s passions or prejudices. Raising race when it is not relevant can affect the jurors’ impartiality and appeal to their prejudice, resulting in a conviction that is not based on the evidence.

The defendant did not object to this language at trial.  Generally, when a defendant first raises prosecutorial misconduct on appeal, they must show improper conduct, prejudice, and that a jury instruction could not have cured the prejudice.  Washington treats race-based misconduct differently from other types of prosecutorial misconduct, however.  The court instead considers if the prosecutor “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence.” State v. Zamora (quoting State v. Monday).  The test is whether an objective observer could view the comments as an appeal to potential bias, prejudice, or stereotypes. The court should consider the context of the comments.  The conviction must be reversed if the appeals court finds the prosecutor flagrantly or apparently intentionally appealed to racial or ethnic prejudice.

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