Seattle Attorneys Blog

Washington Residential Burglary Conviction Upheld Despite Necessity Defense

December 21, 2022 | by Blair & Kim, PLLC

Necessity may be available as a defense in a Washington criminal case when “physical forces of nature or the pressure of circumstances” cause a defendant to do something illegal to avoid a harm that is greater than the harm resulting from the unlawful act. A defendant recently challenged her conviction for residential burglary, arguing the jury had wrongly rejected her common law necessity defense.

According to the appeals court’s unpublished opinion, the defendant ran out of gas in an unfamiliar area. She walked to a museum. The defendant claimed she slipped in snow and injured her back. She claimed she called out, but no one responded and the museum was closed for the winter. She did not have a phone with her.

Witnesses testified about the bad weather that night. The defendant claimed it was “super windy” and “freezing.” There was evidence of six to eight inches of snow on the museum property. The defendant claimed she was lying in the snow for hours. She ultimately went to the doublewide manufactured home where the museum caretaker lived.

Washington Appeals Court Applies ADR Provision to Enforcement Action in Divorce

December 12, 2022 | by Blair & Kim, PLLC

Parties to a Washington divorce may reach an agreement to resolve the issues in their case. A CR 2A agreement, named after Washington Superior Court Civil Rule 2A, can resolve a number of issues, including property distribution and debt allocation. CR 2A agreements may also include an alternative dispute resolution requirement.

A husband recently appealed an enforcement order, arguing the matter should have been resolved through the alternative dispute process set forth in the CR 2A agreement. According to the appeals court’s opinion, the parties got married in 1991. They separated in 2017 and the husband filed for divorce at the end of 2018. The marital estate was worth about $194 million. The parties entered into a CR 2A Agreement and Separation Contract that allocated some property and made financial management arrangements in August of 2019.

The agreement allocated a development project to the husband and allowed him to borrow up to $3 million from the wife with 6% interest. She could choose to either invest the loan into the project or make the loan part of the equalizing payment. If she chose not to invest in the project, the agreement required the husband to pay the equalizing payment with 7.5% interest from the date she notified him of that decision. The payment would be due within 12 months of entry of the divorce decree. If the payment was not paid timely, it would accrue 12% per annum interest.

Court Grants TRO Preventing University from Removing Student from Housing

November 28, 2022 | by Blair & Kim, PLLC

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.

Washington Appeals Court Upholds Juvenile Criminal Trespass Adjudication

November 27, 2022 | by Blair & Kim, PLLC

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.

Washington Parenting Plan Restrictions Due to Domestic Violence

November 22, 2022 | by Blair & Kim, PLLC

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.

Washington Firearm Possession Conviction Based on Snapchat Video

November 13, 2022 | by Blair & Kim, PLLC

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.

Accused Student Plaintiff Allowed to Depose Accuser in Title IX Case Against University

October 30, 2022 | by Blair & Kim, PLLC

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.

Washington Nonparental Visitation

October 28, 2022 | by Blair & Kim, PLLC

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.

Duration of Washington DVPO

October 17, 2022 | by Blair & Kim, PLLC

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.

Court Can’t Revoke Washington DOSA for Violations Before Community Custody Begins

October 16, 2022 | by Blair & Kim, PLLC

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.