Seattle Attorneys Blog

Court Denies Preliminary Injunction for Student Suspended in Title IX Proceeding

May 31, 2022 | by Blair & Kim, PLLC

A preliminary injunction can prevent a university from implementing Title IX sanctions against a student while a lawsuit is pending. To obtain a preliminary injunction, the plaintiff must meet certain criteria, including showing a likelihood of success on the merits, a lack of adequate remedy at law, and a likelihood of irreparable harm without an injunction. A student, identified in the court’s order as John Doe, recently sought a preliminary injunction in a Title IX case in an Indiana federal court.

According to the court’s order, on the night of November 13, 2020, John hung out with another student, identified as Jane Roe, and some other friends in the common room of Jane’s suite. John claimed he went back to his own place, but Jane messaged him asking him to come back at 2:00 a.m.

Jane later alleged John got into her bed and touched her sexually without her consent. John agreed he had helped her into bed, but said he then went back to the common room with the others and denied getting into her bed or touching her. He said Jane later got up and came back to the common room.

Double Jeopardy and Washington Conspiracy Charges

May 30, 2022 | by Blair & Kim, PLLC

The Fifth Amendment of the U.S. Constitution protects individuals from being put in jeopardy more than once for the same offense. The Washington State Constitution also protects Washington criminal defendants from double jeopardy. Many people think of the double jeopardy doctrine as preventing a person from being charged with the same offense again after being acquitted, but it also provides protections in other circumstances. Double jeopardy protections prevent a defendant from being charged with the same offense again after being acquitted or convicted and from being punished for the same offense more than once. In a recent unpublished case, a defendant challenged her convictions on three counts of conspiracy to commit murder, arguing that the multiple conspiracy charges violated double jeopardy.

According to the appeals Court’s opinion, the defendant’s husband left her in 2019 after more than 25 years of marriage. He moved to his mother’s property and started dating another woman. A few months later that woman moved in with him.

According to the opinion, the defendant told a friend she wanted to kill her husband, his mother, and his new girlfriend. She told the friend she had been planning to do so. She said she would like for someone to make the murders appear to be a home invasion, but expressed that she would do it herself if necessary.

DNA Collection in Washington Juvenile Deferred Disposition Cases

May 23, 2022 | by Blair & Kim, PLLC

Pursuant to RCW 43.43.754, individuals convicted of certain crimes and juvenile offenses in Washington must give a DNA sample. Two juveniles recently challenged separate court orders requiring them to give DNA samples after they were granted deferred disposition. Each of the juveniles was charged with theft of a motor vehicle arising from separate incidents, with one of the juveniles having several additional charges. They each appealed and their cases were consolidated before the Washington Supreme Court.

In the lead opinion, the Washington Supreme Court noted that RCW 43.43.754 fails to define the meaning of “conviction.” The court also pointed out that the meaning of “conviction” is not clear in statutes involving juveniles. In such circumstances, the court must consider the context and purposes of the statute in interpreting what is meant by “conviction.”

The court first considered other relevant statutes. The court noted that juvenile adjudications finding guilt are considered convictions under the Sentencing Reform Act. RCW 9.94A.030(9). The court also concluded that standard and law dictionary definitions supported the definition in the Sentencing Reform Act.

Washington Court Finds Couple Not in Committed Intimate Relationship Prior to Marriage

May 11, 2022 | by Blair & Kim, PLLC

In Washington, the Committed Intimate Relationship (“CIR”) doctrine protects the interests of certain unmarried individuals when they end a committed relationship. This doctrine assists in the resolution of property distribution when certain unmarried couples separate. A CIR occurs when a couple has a marriage-like relationship but know that they are not lawfully married. Courts consider certain factors to determine if a couple had a CIR, including the relationship’s length, its purpose, continuous cohabitation, pooling of resources and services, and the parties’ intent. Connell v. Francisco. In a recent Washington divorce case, the husband challenged the court’s characterization of certain property as separate by alleging the parties were engaged in a CIR prior to their marriage.

According to the appeals court’s unpublished opinion, the parties started dating in 2006 and moved in together in early 2009. Each of them moved away for a while during the relationship.

The wife claimed their relationship was “rocky” because of infidelity, but both parties stated they never broke up while they were dating.

Factual Basis for a Washington Guilty Plea

April 30, 2022 | by Blair & Kim, PLLC

A guilty plea by a Washington criminal defendant must be knowing, intelligent, and voluntary. A plea can only be voluntary if the defendant understands both the nature of the charges against him or her and the consequences of pleading guilty. The trial court must be “satisfied that there is a factual basis for the plea.” CrR 4.2.

A defendant recently challenged his guilty plea, arguing there was not a sufficient factual basis for the sentencing enhancement. According to the appeals court’s unpublished opinion, the defendant pleaded guilty to first degree manslaughter with a deadly weapon sentencing enhancement. The defendant gave a brief statement of guilt stating he “acted recklessly and caused the death of [the victim],” with no mention of a deadly weapon. Although there was a box on the form to indicate the defendant did not make a statement and had agreed the court could review other documents for the factual basis, it was not checked.

The trial court accepted the plea. The defendant was sentenced to 158 months, increased to 182 months with the sentencing enhancement.

Court Denies Student Preliminary Injunction Against Title IX Expulsion

April 28, 2022 | by Blair & Kim, PLLC

Suspension or expulsion after a finding of sexual misconduct in a Title IX investigation can permanently affect a person’s professional opportunities and future. In some cases, students have been successful in enjoining the school from enforcing such disciplinary action pending a lawsuit, but a New Hampshire federal court recently denied a plaintiff’s motion for a preliminary injunction.

According to the court order, the plaintiff and his roommate were fourth-year medical students when the incident occurred. On July 11, 2020, they both fell asleep on the sofa watching a movie after eating and drinking together. According to both men, the plaintiff performed oral sex on the roommate, but the events leading up to that act were in dispute. The roommate alleged that he woke up with his underwear down and the plaintiff caressing him. The plaintiff alleged that he was “blacked out” and the roommate woke him up with his genitals exposed. Neither party filed a complaint immediately after the incident.

Soon after the incident, the plaintiff decided to take an unrelated leave of absence from school.

Washington Felony Protection Order Violation Convictions Reduced to Misdemeanors

April 15, 2022 | by Blair & Kim, PLLC

Pursuant to RCW 26.50.110(5), violation of certain Washington protection orders is a class C felony if the defendant has two or more prior convictions for violating specified types of protection orders. A defendant recently challenged his felony convictions, arguing the state failed to prove the validity of one of his prior convictions.

According to the appeals court’s unpublished opinion, the defendant entered a guilty plea to violating a protection order in 1992. The county clerk’s office destroyed most of the related records since then. In 2019, the only record left was a seven-page document titled “DOCKET.” This document contained clerk entries related to the prosecution of that case.

In 2019, the district court in another county entered a no-contact order prohibiting the defendant from contacting his girlfriend. He was later charged with three counts of felony violation of a no-contact order based on alleged calls he made to her from jail. He was charged with felonies based on the state’s allegations he had two previous convictions for violating an order. If he did not have prior convictions, the alleged violations would just be misdemeanors instead of felonies.

Joint Title Gift Presumption Not Applicable to Washington Property Characterization

April 8, 2022 | by Blair & Kim, PLLC

Inherited property is generally characterized as separate property in a Washington divorce, but what if the spouse signs a quitclaim deed adding the other spouse to the title? The Washington Supreme Court has clarified that the joint title gift presumption does not apply when a court divides property in a divorce. The court must instead determine whether the spouse intended to convert the property to community property.

According to the opinion, the wife’s mother died the year after the parties married and left half her estate to the wife, some of which would be through future distributions. The wife inherited a 50% interest in a property in Arlington and the parties moved there.

In 2003, the parties started a horse breeding and training business. They decided to purchase property in Ford in 2005 with a loan secured by the Arlington property. The lender required the husband to be added to the Arlington property title. The wife executed a quitclaim deed conveying her interest to her husband and herself “to establish community property.” She did not remember signing the deed and said she had only done so because it was required by the loan. She claimed they only intended to keep the loan until they could sell the Arlington property. She testified she did not intend to convert it to community property.

Coaches and School Officials Reportedly Criticize Title IX Due Process Rule

March 30, 2022 | by Blair & Kim, PLLC

In 2020, the Department of Education published a Final Rule revising the regulations implementing Title IX of the Education Amendments of 1972 .The 2020 Final Rule prohibits a school from imposing disciplinary actions or other actions other than supportive measures against a respondent to a Title IX complaint before following the grievance process. 34 CFR § 106.45(b)(1)(i).

Supportive measures are non-disciplinary and non-punitive services, designed to preserve or restore equal access to the school’s programs or activities without unreasonably burdening the other party. 34 CFR § 106.30. The preamble to the Final Rule states that determining whether a particular action is unreasonably burdensome is fact specific. The preamble clarifies that housing and schedule adjustments are not automatically unreasonable burdens on the respondent. Consideration of whether a burden is unreasonable is not limited to access to academic programs. Instead, schools must consider whether the respondent’s “access to the array of educational opportunities and benefits” the school offered is unreasonably burdened. The preamble specifically notes that a schedule adjustment may be considered a reasonable burden more often than a restriction on participating in sports or extracurricular activity.

A school’s grievance process must either list or describe the range of disciplinary actions that may be imposed on a respondent if he or she is found responsible. The preamble clarifies that in listing a particular action, the school is identifying it as disciplinary and it therefore cannot be a “supportive measure.” According to the preamble, if a school lists sports ineligibility as a potential disciplinary sanction in its grievance process, then it cannot implement sports ineligibility as a supportive measure before following the grievance process. If the school does not list it as a potential sanction, then it may use sports ineligibility as a supportive measure only if it is not used as a disciplinary or punitive action and does not unreasonably burden the respondent.

Washington Court Must Enter Written Findings with Contempt Order

March 23, 2022 | by Blair & Kim, PLLC

When a court enters certain types of Washington protection orders, it must also require the surrender of firearms and other weapons upon a proper showing that the respond used, displayed, or threatened to use a firearm or other dangerous weapon in a felony or that the respondent is not eligible to possess a firearm pursuant to RCW 9.41.040. RCW 9.41.800. An ex-husband recently challenged a court’s order of contempt for failure to surrender his weapons.

His ex-wife petitioned for a domestic violence protection order (“DVPO”) against him, alleging multiple instances of abuse. She stated he put a laser on his gun and pointed the laser at her forehead, telling her that was “where the bullet is going to land.” In another incident, she stated he told her he would kill her if she left while holding a gun to her head. She attached a photo of a firearm and another of the ex-husband with a firearm.

The court issued a temporary DVPO and an order to surrender weapons on November 20, 2020.