Seattle Attorneys Blog

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.

Proposed Title IX Rule Received More than 200,000 Comments

September 30, 2022 | by Blair & Kim, PLLC

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.

Washington Appeals Court Reverses Conviction Due to Race-Based Prosecutorial Misconduct

September 29, 2022 | by Blair & Kim, PLLC

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.

Washington Juvenile Deferred Disposition and Loss of Driving and Firearms Rights

September 25, 2022 | by Blair & Kim, PLLC

In a Washington deferred disposition in a juvenile case, the juvenile stipulates to the admissibility of the facts in the police report, acknowledges the report will be entered a used to support a finding of guilt and impose disposition if they do not comply with the terms of supervision, waive the rights to speedy disposition and to call and confront witnesses, and acknowledge the direct consequences of a finding of guilty and of a disposition, if entered. The court then defers entry of an order of disposition and places the juvenile on community supervision, with any conditions deemed appropriate by the court. At the end of the period of community supervision, the court determines if the juvenile is entitled to dismissal based on statutory requirements. If so, the conviction is vacated and the court dismisses the case with prejudice. If the court vacates the conviction, and the juvenile is at least 18 years old and has paid the full amount of restitution owed to the individual victim, the court also orders the case to be sealed. If the juvenile is not yet 18, the court will schedule an administrative sealing hearing within 30 days of the juvenile’s 18^th birthday. If the juvenile is not entitled to dismissal, the court revokes the deferred disposition and enters an order of disposition. RCW 13.40.127.

A juvenile who entered a deferred disposition for attempting to elude a pursuing police vehicle recently challenged the driver’s license suspension and firearms right revocation imposed upon him. Pursuant to RCW 46.20.285, the department of licensing revokes the license or permit of a person convicted of attempting to elude a police vehicle. A juvenile’s right to possess a firearm is revoked if they are adjudicated guilty of any felony under RCW 9.41.040, including attempting to elude. Case law has held that a juvenile is considered to be convicted when they enter into a deferred disposition. A juvenile in deferred disposition who meets the requirements will have their license suspended or firearms rights revoked until the adjudication is vacated.

Washington counties may create alternative therapeutic court programs pursuant to RCW 2.30.030. Therapeutic court programs allow juveniles to have their case dismissed after completing the program. The case is removed from prosecution and the juvenile is not adjudicated guilty. Because they are not adjudicated guilty, juveniles in therapeutic court programs do not face driver’s license suspension or firearms rights revocation.

Wife Denied Modification of Washington Spousal Maintenance

September 19, 2022 | by Blair & Kim, PLLC

A former spouse seeking modification of Washington spousal maintenance must generally show a substantial change in circumstances. A former wife recently challenged the denial of her request for modification.

According to the appeals court’s unpublished opinion, the parties married in 1991 and divorced in 2014. The wife was a stay-at-home parent. The husband co-owned two businesses with a partner and had an annual income averaging $598,244 in the three years before the divorce.

The wife sought spousal maintenance. According to a vocational evaluation, she had not worked in over 21 years and needed retraining. It described the effect her multiple chronic medical conditions had on her ability to work. She was qualified for low or unskilled positions, which were generally not appropriate due to her balance and lower back issues. Her medical issues limited the training and work she could do and could require time off beyond the norm. The evaluator also noted the importance of the wife working for an employer large enough to be subject to Family Medical Leave.

Accused Students Proceeding Under a Pseudonym in Title IX Litigation

August 31, 2022 | by Blair & Kim, PLLC

The use of pseudonyms has been a significant issue in Title IX litigation recently, with some courts denying accused students the ability to proceed in litigation against their school under a pseudonym. The First Circuit, however, has recently vacated an order denying an accused student the use of a pseudonym and provided a new standard for evaluating this issue.

According to the First Circuit’s opinion, the plaintiff was found responsible for nonconsensual sexual contact and intercourse and sexual harassment by a three-member panel following a Title IX investigation and hearing. He was notified he would be expelled. The university denied his appeal and expelled him shortly before he was to graduate.

The plaintiff sued the university, alleging breach of contract, promissory estoppel, and denial of basic fairness. He alleged the investigation’s “[r]adical feminist anti-male bias” led to a presumption the complainant’s allegations were true. He also moved to proceed by pseudonym because he would be significantly harmed by being required to reveal his identity. The district court denied the motion and the plaintiff ultimately appealed.

Use of Recording without All Parties’ Consent in Washington Criminal Case

August 25, 2022 | by Blair & Kim, PLLC

Washington’s privacy act generally prohibits recordings of communications obtained without consent of all parties from being admitted as evidence at trial. RCW 9.73.030. In some circumstances, however, they may be admissible. A law enforcement officer can intercept, record, or disclose a conversation with the consent of one party and authorization of a judge. The judge must approve the application for authorization if there is probable cause the other party committed, is committing, or is about to commit a felony. RCW 9.73.090(2). The requirements for the application are set forth in RCW 9.73.130, and if the application is not in compliance with those requirements, the order is unlawful and the recording cannot be admitted into evidence. A defendant recently challenged admission of a video of him and his brothers discussing the crime.

According to the appeals court’s unpublished opinion, five young men in masks and dark clothes killed two people and shot three others in an encampment for people without housing. One of the victims identified the person who shot her as a man called “Juice.”

A man called “Lucky” contacted the police the following day and said his 17-year-old nephew, the defendant, had admitted to the shooting. Lucky and a relative went to the police department for an interview. They told the detective the defendant and his brothers owned three guns. Lucky agreed to try to record a conversation with the defendant.