Seattle Attorneys Blog

Federal Court Denies Student Athlete’s Motion for Injunctive Relief for Reinstatement on the Team

February 27, 2023 | by Blair & Kim, PLLC

Title IX allegations can have consequences even if the student is not found responsible of sexual misconduct. In a recent case, a student sued his college after being excluded from a sports team following an allegation of sexual assault that did not result in a formal Title IX complaint or investigation.

The plaintiff was a senior student and team captain of a sports team at a Pennsylvania college. According to the court’s opinion, co-captains of the team reported a rumor the plaintiff sexually assaulted a female student to the coach. The coach reported the allegations to the college’s Title IX office. He also recommended the plaintiff step away from the team during the investigation, and the plaintiff sent an email to the team that day.

The alleged victim informed the Title IX office she did not intend to make a formal complaint. The Title IX Office decided not move forward with a formal investigation and notified the plaintiff.

Washington Appeals Court Affirms Stalking Conviction Related to Violation of a CPO

February 26, 2023 | by Blair & Kim, PLLC

Violation of a Washington civil protection order can result in serious criminal charges. A woman recently challenged her conviction for stalking and sentence for convictions for violation of a protection order, stalking, and malicious mischief.

The defendant was in a romantic relationship with a man for several years. According to the appeals court’s opinion, she made a number of allegations against him and his ex-wife after the relationship soured. The ex-boyfriend sought a protection order shortly after they broke up in 2015.

He testified the protection order did not stop her from continuing to harass him and his children. He said she kept making false allegations related to pornography. He obtained another protection order in July 2017 and a third in August 2018.

Washington Spousal Maintenance Modification

February 19, 2023 | by Blair & Kim, PLLC

An award of spousal maintenance in Washington may generally only be modified if the party seeking modification can show a substantial change of circumstances. RCW 26.09.170(1). Under Washington case law, the change must not have been within the parties’ contemplation when the decree was entered. A former wife recently challenged a trial court’s denial of modification of her spousal maintenance.

According to the appeals court’s unpublished opinion, the parties entered into a separation agreement that required the husband to pay $4,000 per month and 40% of his annual bonus as spousal maintenance for seven years, starting February 1, 2014. The terms of the agreement were incorporated into a decree of legal separation, which was ultimately converted into a decree of dissolution.

By the terms of the agreement, the payments would end in January 2021. The ex-wife moved to modify the decree in December 2020. She alleged health issues had prevented her from working in her profession as an art teacher since spring of 2019. She also alleged the ex-husband’s salary had substantially increased since the separation.

Merger Doctrine in Washington DUI Case

February 8, 2023 | by Blair & Kim, PLLC

During a Washington criminal sentencing proceeding, an offender generally cannot challenge the constitutional validity of a previous conviction. If, however, a conviction that is “constitutionally invalid on its face,” the court cannot consider it during sentencing. A Washington appeals court recently considered whether a defendant’s prior conviction was facially invalid under the merger doctrine.

The merger doctrine applies when the state has to prove the occurrence of an act that is defined as a separate crime to prove a particular degree of the charged crime. In such circumstances, the crimes “merge.” The merger doctrine does not apply if the legislature intended to allow multiple punishments.

If the legislature did not clearly intend to allow multiple punishment for the same act under different laws, the court determines its intent through application of the same evidence test, merger, and the independent purpose test.

Court Dismisses Student’s Title IX Claims with Leave to Amend

January 30, 2023 | by Blair & Kim, PLLC

A California school district recently sought to have Title IX and related claims against it dismissed. The plaintiff was a high school student who filed suit through his guardian ad litem against the school district, several individually named administrators and athletics personnel, and unnamed “Doe” defendants. The defendants filed a 12(b)(6) motion to dismiss and asked the court to strike the plaintiff’s request for punitive damages.

In reviewing a 12(b)(6) motion, the court considers whether the plaintiff has stated a legally sufficient claim. The court’s review is therefore limited to the complaint.

According to the court’s order, a student recorded a Snapchat video of the plaintiff and his girlfriend in a classroom. The school administrators claimed this video showed the pair engaged in a sexual act, but the plaintiff denied that there had been any sexual activity. A vice principal interviewed other students who said there had been sexual activity and subsequently suspended the plaintiff for three days on December 19.

Proposed Changes to Washington DUI Laws

January 29, 2023 | by Blair & Kim, PLLC

Two bills in the Washington legislature propose significant changes to Washington’s impaired driving laws. SB 5002 proposes to lower the legal limit for a driver’s alcohol concentration. SB 5032 would extend the felony DUI lookback period and create a sentencing alternative for certain impaired driving convictions.

If passed, SB 5002 would lower the legal alcohol concentration from .08 to .05. The change would apply to the DUI statute at RCW 46.61.502 and to the physical control statute at RCW 46.61.504. According to SB 5002, there were 540 fatal crashes in Washington in 2021, killing more than 600 people. The bill states that there was a 31.3% increase in crashes resulting from an impaired driver between 2020 and 2021. The bill points to a Utah law that lowered the legal alcohol concentration limit from .08 to .05 and a subsequent 19.89% drop in fatal crashes and an 18.3% drop in the fatality rate. The bill estimates such a change in Washington would result in an 11.1% decrease in alcohol-related fatalities and between 538 and 1,790 lives saved annually.

If SB 5032 passes, a person could be convicted of felony DUI or felony physical control instead of a gross misdemeanor if they have three or more previous convictions within the past 10 years. The current law has a lookback period of 15 years. Similar bills proposing to expand the lookback period over the past few years have failed.

Washington Court Can’t Seal Juvenile Record Before Individual Restitution Is Paid

January 18, 2023 | by Blair & Kim, PLLC

A Washington juvenile record may be sealed if certain circumstances are met. The court schedules an administrative sealing hearing at the disposition hearing, if the juvenile is eligible. The hearing is to occur after the last of the following: the juvenile’s 18^th birthday, the anticipated end of the juvenile’s probation, and the juvenile’s anticipated release from confinement or completion of parole. Certain offenses, including “most serious offenses,” certain drug offenses, and certain sex offenses, are not eligible for a sealing hearing. The court is to seal the record if it finds at the time of the hearing that the juvenile is no longer on supervision for the case and has fully paid restitution to the person named in the order, excluding any restitution owed to an entity providing insurance or health care coverage. If the court finds the juvenile is still on supervision, then it is to continue the hearing within 30 days after the anticipated completion of the supervision. If the court finds the juvenile is not still on supervision for the case but has failed to fully pay restitution to the person named in the order, the court is to deny sealing the record and issue an order that specifies the restitution that is unpaid to the person and directs the juvenile on how to pursue sealing the record. RCW 13.50.260. The state recently appealed the sealing of a juvenile record, arguing the juvenile had failed to fully pay restitution.

According to the appeals court’s opinion, the juvenile pleaded guilty to second degree malicious mischief and agreed to pay restitution. The court ordered him to pay $1,233.17 in restitution and set a date for a hearing to seal the record.

The state argued at that hearing that the juvenile failed to fully pay restitution so the record could not be sealed pursuant to RCW 13.50.260(1)(d). The juvenile court still sealed the record, finding the juvenile was eligible for the record to be sealed because he had “paid in full the amount of restitution owing,” but also that “the remaining amount of restitution . . . is $613.17.”

Washington Court Denies Annulment

January 9, 2023 | by Blair & Kim, PLLC

A trial court must grant an annulment to parties married outside Washington if the court finds the marriage was void or voidable pursuant to the laws where the marriage was contracted, unless it was subsequently validated. RCW 26.09.040(4)(c). A wife recently appealed a court’s denial of her petition for a Washington annulment.

According to the appeals court’s unpublished opinion, the parties had a ceremonial marriage in India in 2009 and subsequently moved to the U.S and lived together as spouses for several years. They had a child together in 2014. The husband moved out in 2017 and the wife petitioned for legal separation. She subsequently amended to petition for annulment. She alleged the husband had fraudulently represented having registered their marriage in Indian, and that, because he had actually failed to register, the marriage was legally void. The husband asked the court to dissolve the marriage instead.

The primary issue at trial was whether the marriage certificate was signed and registered pursuant to Indian law. The wife offered evidence of irregularities in the certificate the husband used in his immigration. She presented an authenticated document from India stating there was no record of the marriage. The husband presented a partially-signed marriage certificate. The wife argued it was probably forged. The husband also submitted a fully-signed version of the marriage certificate with his supplemental briefing. The trial court denied the wife’s motion to strike it.

SAFER Act – A Bill to Amend Title IX

December 31, 2022 | by Blair & Kim, PLLC

In December 2022, identical bills were introduced in the Senate, S. 5158, and House of Representatives, H.R. 9387, to amend Title IX. The short title for the act is “Students’ Access to Freedom and Educational Rights Act of 2022,” also known as the SAFER Act. In addition to amending Title IX, the SAFER Act would also amend other federal laws relating to discrimination. This act would impose additional requirements on schools with regard to protecting individuals from discrimination and Title IX.

The SAFER Act would add a provision making schools liable for sex-based harassment committed by their agents, employees, or other authorized persons if the person’s authority enables or assists in the harassment or the school receives notice of the harassment. Schools would also be liable for sex-based harassment against a person participating in or receiving benefit, service, or opportunity from a school program or activity or is trying to do so, when the schools have notice of the harassment. A school would not liable for damages if it can show it exercised reasonable care to prevent sex-based harassment and promptly remedy the effects, including through certain specified actions.

It includes definitions for “gender identity,” “on the basis of sex,” “recipient,” “sex-based harassment,” and “sexual orientation.” The definition of “on the basis of sex” includes orientation and gender identity.

“Knowing” Element of Violation of a No-Contact Order

December 28, 2022 | by Blair & Kim, PLLC

To convict a person of a Washington crime, the state must prove each element of that crime. In a recent case, a defendant appealed a conviction for felony violation of a domestic violence no-contact order, arguing the state had not shown he had knowingly violated a no-contact order.

According to the appeals court’s opinion, the defendant went to his grandmother’s home on September 24, 2020. He asked to come in for a shower and some food. The grandmother let him in, but told him she would call the sheriff because he was “not supposed to be [t]here.” When officers arrived, they arrested the defendant.

A domestic violence no-contact order had been entered against him on June 14, 2019, prohibiting from contacting his grandmother or coming within 1,000 feet of her home. The order was still in effect in September 2020. The defendant had been convicted of violating a court order two previous times, so he was charged with felony violation of the no-contact order.