Seattle Attorneys Blog

Court Concludes Absolute Immunity Not Available for Statements in Sexual Misconduct Hearing

July 31, 2023 | by Blair & Kim, PLLC

The Connecticut Supreme Court recently concluded a university disciplinary proceeding arising from a sexual assault allegation was not quasi-judicial and therefore did not afford the complainant with absolute immunity for the statements she made during the proceeding.

According to the court’s opinion, “Jane Doe” accused the plaintiff of sexual misconduct in disciplinary proceedings conducted by the Ivy League university they both attended. The plaintiff was expelled from the University. He filed suit in federal court against the university, several university employees, and Doe. His claims against Doe included defamation and tortious interference with business relationships.

The District Court concluded the disciplinary proceeding was quasi-judicial and Doe had absolute immunity for the statements she made during the proceeding under Connecticut law. It concluded extending immunity to the university’s disciplinary proceedings was warranted under Connecticut’s six-factor test to identify quasi-judicial proceedings and as a matter of public policy.

Washington Supreme Court Concludes Warrantless Search of Home Was Justified

July 30, 2023 | by Blair & Kim, PLLC

The U.S. Supreme Court held in Caniglia v. Strom that the “community caretaking” exception to the warrant requirement did not extend to a residence. The Washington Supreme Court has recently considered application of that holding in a Washington criminal case.

According to the opinion, a deputy went to a home after 911 received a call that a caregiver had not come to work that morning. The caller also reported the caregiver had been involved in a domestic incident with her husband the day before. The deputy knocked and announced himself, but there was no answer.

He called the caregiver’s husband and told him he needed to talk with her. The deputy asked where she was and the husband said she should be at work. The husband confirmed the minivan in the driveway was hers. He provided his wife’s phone number. The deputy did not tell the husband his wife was missing or ask him to come home or for consent to check the residence.

Washington Appeals Court Concludes Respondent Failed to Comply with Order to Surrender Firearms

July 25, 2023 | by Blair & Kim, PLLC

A court issuing a Washington domestic violence protection order (“DVPO”) must also order the surrender of firearms, dangerous weapons, and concealed pistol licenses. The restrained person must file a proof of surrender and receipt or a declaration of nonsurrender within five days. RCW 9.41.804. The restrained person must prove by a preponderance of the evidence that they have surrendered all dangerous weapons. A petitioner recently appealed a court’s finding the respondent was in compliance with the order to surrender.

According to the appeals court’s unpublished opinion, the petitioner testified the respondent became violent and controlling during their relationship. She said he had threatened to shoot up her friend’s house if she did not come out and then forced her into the car at gunpoint. She testified he took her to a deserted parking lot and ripped her shirt off, pulled her hair, and strangled her, while pointing a gun at her. She alleged he sent her photos of himself holding guns and photos of guns along with threatening text messages.

She petitioned for an order of protection. Although initially denied, she was granted a second hearing due to procedural issues. The petitioner testified and presented declarations from her mother and a witness. She presented evidence of threatening photographs of firearms the respondent sent her. The appeals court noted there were five firearms shown in the pictures, which were all taken either in the respondent’s room or his mother’s car.

Washington Dissipation of Community Funds

July 12, 2023 | by Blair & Kim, PLLC

Property in a Washington divorce is generally characterized as of the date was acquired, but the date of acquisition alone does not determine its character. The court must consider whether the property was acquired by community or separate funds. Additionally, spouses may agree to convert property that otherwise would have been separate property. A husband recently challenged a trial court’s characterization of certain assets and expenditures.

Marriage

The appeals court’s unpublished opinion states the parties got married in 2004 in Arizona. Several years later, they signed a family trust agreement stating any property put in the trust would be community property. They bought a home in Washington in the name of the trust and moved into it in 2009. They subsequently rented that home out when they purchased another home, using funds from the trust for the down payment. The husband placed $820,000 he received from an arbitration related to his shares in his former employer in the trust’s bank account. The parties funded a new business from the trust. The business was successful, but closed in 2020 when its supplier went out of business.

The wife and child moved out in 2017 and the husband filed for divorce.

Federal Court Dismisses Expelled Student’s Procedural Due Process and Title IX Claims

June 28, 2023 | by Blair & Kim, PLLC

A Title IX complaint can result in severe consequences, including loss of scholarships and dismissal from school. A former student recently sued his military college after he was expelled for alleged sexual misconduct.

The plaintiff, identified in the unpublished Fourth Circuit opinion as John Doe, was a student at a state-incorporated military college in South Carolina. A female student filed a complaint accusing him of sexual misconduct. The school’s Commandant’s Board heard the complaint and ultimately found the plaintiff committed a violation in one of the three alleged incidents of sexual misconduct. As a result, Doe lost his Marine scholarship and was dismissed from the school with leave to apply for readmission after a year. He appealed, but the appeal was denied.

He filed suit against the college and several officials, alleging violation of his right to procedural due process and sex-based discrimination. The district court granted the defendants’ motion to dismiss.

Washington Court Concludes No Committed Intimate Relationship after Approximately Six Years Cohabitation

June 27, 2023 | by Blair & Kim, PLLC

Washington law recognizes “committed intimate relationships,” (“CIRs”) and allows courts to equitably distribute property when people separate after living together in a marriage-like relationship and acquiring property that would have been considered community property if they were lawfully married. In determining if a CIR existed, courts consider a number of factors, including the parties’ intent, the length of the relationship, whether the parties cohabited continuously, whether they pooled their resources for joint projects, and the purpose of the relationship. In a recent case, a mother appealed a trial court’s judgment that she had not been in a CIR with her child’s father.

According to the appeals court’s opinion, the mother and her young child lived in a rental when the parties met. The father owned his home and several acres, as well as a rental home. The parties agreed to date exclusively in October or November of 2011. The mother told the father she was pregnant in April 2012. The mother claimed they had agreed to have a child, but the father denied discussing or wanting a child before the pregnancy.

The father claimed the mother wanted to live together because she was having difficulty paying her bills after changing jobs. He said he thought it was too soon, but felt pressured due to the pregnancy and the mother’s expenses. The trial court found they started living together around June 2012. Continue reading

Washington Appeals Court Affirms New DVPO after Original DVPO Expired

June 22, 2023 | by Blair & Kim, PLLC

Washington domestic violence protection orders (“DVPOs”) protect abused spouses, romantic partners, and family and household members. The court may order the DVPO for a fixed period of time, in many cases, one year. The petitioner may seek a renewal of the DVPO and, under current RCW 7.105.405, the petitioner does not have a burden to prove they have “a current reasonable fear of harm. . .” Instead, the respondent has the burden to prove they will not resume acts of domestic violence. In some cases, however, a DVPO may be inadvertently allowed to expire. A former husband recently challenged a DVPO protecting his former wife and their children after the previous DVPO was allowed to expire.

The parties shared custody of their two children following their divorce in 2019. According to the appeals court’s opinion, the ex-husband tried to force his way into the ex-wife’s home and injured her. She sought a domestic violence protection order (“DVPO”). The court issued a DVPO protecting the ex-wife and the children for one year. The order also limited the ex-husband’s residential time with the children to a weekly four-hour supervised visit. The ex-wife sought renewal in June 2021. Thereafter, the DVPO was extended through agreed short-term orders and ultimately expired in January 2022.

The ex-wife sought another DVPO in February 2022, alleging she allowed the prior order to expire accidentally. She stated she was still afraid of the ex-husband and that she thought she and the children were only safe because of the protection order. She also stated she had moved to modify the parenting plan to limit the ex-husband to supervised visits, but that motion was still pending.

Washington Driver Can’t Consent to Search of Passenger’s Backpacks

June 13, 2023 | by Blair & Kim, PLLC

Evidence obtained through an unlawful search is generally inadmissible in a Washington criminal case. Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution offer protections against unlawful searches. The Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” Article I, Section 7. This section in some circumstances provides greater privacy protections than the Fourth Amendment.

A defendant recently challenged a search of his backpacks that were inside a vehicle. The appeals court’s opinion states the defendant was a passenger in a vehicle during a traffic stop for suspicion of suspended license. The officer recognized the defendant as having an outstanding warrant. The officer ordered him to remain seated, but the defendant got out of the car and subsequently fled. The officer caught him and searched his pockets. He found a pipe, cash, and a small amount of what he thought was heroin.

The driver told the officer the defendant asked her to stop at a gas station when the patrol car was following them. She said he moved some bags to the back seat. She pointed out two backpacks on the rear floorboard and another on the passenger side floorboard. She gave permission to search the car “without limitation.”

Department of Education Delays Final Title IX Rule

May 31, 2023 | by Blair & Kim, PLLC

In July 2022, the Department of Education (“Department”) proposed Title IX regulations that would undo a number of changes made during the Trump Administration. The final rule was expected to be released this month. The Department recently provided an update, however, stating that the new anticipated date for the final Title IX rule is October 2023.

According to the Department, more than 240,000 public comments were submitted in response to the proposed regulations. This is more than twice the number of comments the controversial 2018 proposed regulations received. Under the proposed rule, sex-based discrimination and harassment would include gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Much of the attention around the proposed rule has been focused on the protections based on gender identity and sexual orientation, but there are other significant changes.

Victim advocates and education organizations have raised concerns over the mandatory reporting requirements, which require certain employees to report conduct that may constitute sex discrimination to the Title IX Coordinator. The American Association of University Professors commented that such requirements negatively affect teaching and advising relationships. Other commenters noted that the mandatory reporting requirements as written could be confusing to students and would likely discourage victims from seeking help and support.

Washington Appeals Court Affirms Admission of 911 Call as Excited Utterance

May 28, 2023 | by Blair & Kim, PLLC

Generally, hearsay is not admissible in a Washington criminal case, unless it meets an exception. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Generally, hearsay is not admissible unless it meets a specific exception. One exception is an “excited utterance.” Statements made while the speaker is still under the stress of the exciting event are considered more likely to be true because they are thought to be spontaneous. The exception only applies if there has been “a startling event or condition,” the statement was made while the speaker was under the stress of the excitement from that event or condition, and the statement was related to the startling event or condition. ER 803(2). In determining if the excited utterance exception applies, the court may consider the speaker’s emotional state, the spontaneity of the statement, how long has passed, and if the speaker has had the opportunity to fabricate a story. A defendant recently challenged the admission of a 911 call when the alleged victim had not testified at trial.

According to the appeals court’s opinion, the defendant and his ex-girlfriend had recently broken up at the time of the incident. The defendant knocked on his ex-girlfriend’s door at about 10 and started crawling in her bedroom window when she did not answer. She woke up and told him not to come in. She then ran a neighbor’s apartment. The defendant followed and knocked on the neighbor’s door.

The neighbor called 911. The ex-girlfriend told the 911 operator the defendant jumped in her window while she was sleeping and was currently standing outside the door trying to open it. She said he wanted to hurt her.