Seattle Attorneys Blog

Prohibition of Absentee Statements in Title IX Hearings Found to Be Arbitrary and Capricious

July 30, 2021 | by Blair & Kim, PLLC

On May 19, 2020, the Department of Education (“DOE”) published a Final Rule significantly amending the regulations that implement Title IX. The Final Rule changed the requirements for how schools handle Title IX complaints and investigations. Four victims’ advocacy groups and three individual plaintiffs filed suit in a federal court in Massachusetts to challenge the Final Rule. The plaintiffs argued in part that portions of the Final Rule were arbitrary and capricious.

In some circumstances, an agency is required to give a detailed explanation when it has a change in policy. An agency must provide a detailed justification for a change in policy that is based on factual findings that contradict the factual findings upon which the previous policy was based. Additionally, the agency must give a detailed justification if there were “serious reliance interests” on the prior policy. The agency then must weigh those reliance interests against the policy concerns.

The court noted that most of the plaintiffs’ arguments that the Final Rule was arbitrary and capricious were really policy arguments. The DOE had explained why the provisions supported its goal, why it wrote them the way it did, and why it rejected a number of alternatives. It also addressed commenters’ concerns.

Washington Conviction Reversed Due to Potential Unconscious Bias in Jury Selection

July 29, 2021 | by Blair & Kim, PLLC

A defendant in a Washington criminal case is entitled to a fair and impartial jury pursuant to both the state and federal constitutions. Washington court rules allow parties to strike some prospective jurors without a stated reason through peremptory challenges. A party may not, however, strike a prospective juror for a discriminatory reason. U.S. Supreme Court case law has developed a framework for analyzing whether there has been improper “purposeful discrimination” in the use of a peremptory challenge. This analysis, however, does not protect the defendant from the potential of unconscious bias in the selection of the jury.

Washington adopted a rule to address this issue. General Rule 37 permits a party or even the court itself to object to a peremptory challenge to raise the issue of improper bias. The party who made the challenge must then articulate their reasons for using the challenge. The court then must determine if an objective observer could see race or ethnicity as a factor, considering the totality of the circumstances. If so, the court should deny the peremptory challenge.

A defendant recently appealed his conviction after the trial court allowed the prosecution to strike a juror over the defendant’s objection. According to the appeals court’s opinion, the defendant was charged with first degree kidnapping and second degree assault of his long-term girlfriend, with four firearm enhancements.

Body Cam Footage and the Confrontation Clause in Washington Domestic Violence Case

July 26, 2021 | by Blair & Kim, PLLC

Washington criminal defendants have a right to confront the witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This means a defendant generally has the right to cross-examine witnesses who provide testimonial evidence against the defendant at trial. In cases involving charges related to domestic violence or violation of a no-contact order, victims may not want to testify. In a recent case, a defendant challenged his convictions after body camera footage and a 911 recording were presented at trial.

The mother of defendant’s children called 911 and asked for help, stating “He keeps following me!” There was also a male voice on the recording, saying “Give me the phone.” When police arrived, the children’s mother told them there was a no-contact order. She said the defendant had been pushed her, threatened to kill her, and stole her phone.

The police found the defendant a short distance away. He had a phone in his possession.

Washington Court Holds Mother in Contempt for Violating Parenting Plan

July 16, 2021 | by Blair & Kim, PLLC

A parent may be held in contempt if they fail to comply with a Washington parenting plan. A parent may move for contempt if the other parent prevents visitation, does not return the child from visitation, or fails to engage in joint decision-making.

In a recent case, a mother appealed a contempt order after a commissioner found she had failed to notify the father of dental and medical appointments. A parenting plan was entered when the parents divorced in 2014. Pursuant to the parenting plan, the children would live with their mother in another state and come to Washington to visit their father for winter and summer vacations. Each parent was allowed to make day-to-day decisions and emergency healthcare decisions while the children were with them, but nonemergency health care decisions were to be made through joint decision-making.

The father alleged the mother had taken the children to the dentist without notifying him. The mother said she probably had notified him, but that she could have forgotten to do so. The father wanted to engage in joint decision-making and participate in the appointments remotely.

DOJ Files Statement of Interest in Title IX Case

June 30, 2021 | by Blair & Kim, PLLC

The Department of Justice (“DOJ”) recently filed a statement of interest in a Title IX case, co-signed by attorneys for the Department of Education. The case was filed against a university by several female students and former students who alleged they had been the victims of sexual misconduct by other students. The plaintiffs alleged the misconduct had been reported to the university. Some alleged they were subject to peer retaliation or harassment after reporting, and some of those plaintiffs alleged the university failed to investigate the reported retaliation. The plaintiffs further claimed that the university’s deliberate indifference in its responses to the reports led to a hostile environment that deprived them of educational benefits.

In its motion to dismiss the plaintiff’s claims, the university cited Davis v. Monroe County Board of Education. According to the DOJ, the university misapplied the law of that case and others by confusing the standards for “post-assault” claims and “pre-assault claims.”

According to the statement of interest, the university argued that the plaintiffs’ claims did not meet the standards set forth in Davis and other Title IX cases. The DOJ argues that case law has distinguished post-assault claims from pre-assault claims and this case involved only post-assault claims. According to the government’s statement of interest, to pursue a post-assault claim, the plaintiff must allege the university had actual knowledge of sexual harassment that was “severe, pervasive, and objectively offensive” to the extent that it prevents the plaintiff from accessing an educational opportunity. Additionally, the plaintiff must allege the university responded with deliberate indifference. A response is deliberately indifferent if, as a result of the response, the plaintiff underwent additional harassment or became more vulnerable to additional harassment.

Washington Legal Standard for Self-Defense with the Use of Deadly Force

June 30, 2021 | by Blair & Kim, PLLC

A defendant in a Washington criminal case is entitled to a self-defense jury instruction if he shows some evidence of self-defense. The use of force by a person “about to be injured” is not unlawful if it is not greater than necessary. RCW 9A.16.020(3). Another statute provides that a homicide is justifiable if the person has “reasonable ground to apprehend” “great personal injury.” RCW 9A.16.050. Case law has held, however, that the “great personal injury” standard applies when the defendant used deadly force, even if no one was killed.

A defendant recently challenged his convictions for second degree assault with firearm enhancements, arguing court erroneously instructed the jury on the “about to be injured” standard instead of the “great personal injury” standard.

According to the appeals court’s opinion, the defendant lived in a mobile home park with a homeowners association. After the defendant informed the homeowner association’s president’s she could not be at another mobile home removing the previous resident’s belongings, the defendant and the association president had an altercation.

Washington Juvenile Court Cannot Issue No-Contact Order upon Conviction

June 30, 2021 | by Blair & Kim, PLLC

Washington juvenile courts may impose “local sanctions” for certain low level offenses committed by a juvenile offender. Local sanctions include up to 30 days confinement, up to 12 months community supervision, up to 150 hours community restitution, or up to a $500 fine. RCW 13.40.020(18). The juvenile court may impose conditions on a juvenile defendant sentenced to local sanctions pursuant to its authority to impose community supervision. If a juvenile defendant is sentenced to more than 30 days, however, he or she must be committed to DCYF. RCW 13.40.160. The juvenile offender may be subject to conditions as part of DCYF’s parole program after the sentence has been completed. Certain conditions are required under the parole program, while others are permitted. The statute specifically permits the secretary to prohibit the juvenile offender from having contact with specific people or classes of people. RCW 13.40.210(3)(b)(ix).

Recently, a juvenile defendant appealed a court’s order prohibiting him from contacting the victims of his offense. According to the appeals court’s opinion, the juvenile defendant fired a flare gun into a house resulting in a small fire. Three people were inside.

The defendant ultimately pleaded guilty to first degree arson in juvenile court. The court ordered him to 103 to 129 weeks in a Department of Children, Youth, and Families (“DCYF”) rehabilitation facility. The state requested a no-contact order for the people who had been inside the house. The court’s disposition order contained a provision prohibiting the defendant from contacting those three people for an unstated period of time. The court also imposed a 10-year no contact order.

Washington Court May Consider Post-Secondary Educational Support of Another Child

June 30, 2021 | by Blair & Kim, PLLC

A court may order support for postsecondary educational expenses in a Washington child support order. The court has discretion in determining if and for how long to order support. The court must base its determination on the consideration of certain factors, including the child’s age, the child’s needs, the parties’ expectations while they were together, the child’s abilities, what type of education the child is pursuing, and the parent’s education, standard of living and resources. The court should also consider how much support the parents’ would have provided if they stayed together. The court is not, however, limited to the stated factors. RCW 26.19.090.

A father recently challenged a court’s denial of his request for postsecondary educational expenses for his younger daughter. According to the appeals court’s unpublished opinion, the parties divorced in 2005. They have two children together, 21 and 19 years old. The child support order reserved the right to petition for postsecondary support as long as it was done before termination of support. Postsecondary educational support was not ordered for the older child, but the father petitioned for postsecondary educational support for the younger child before she graduated high school. The mother did not join in the petition, arguing she was providing postsecondary educational support for the older child without help from the father.

The commissioner denied the father’s petition, finding the mother had contributed most of the support while the daughters were children and continued to support the older daughter while she was in college. The father moved for revision.

Department of Education Is Reviewing and Seeking Comments on Title IX Regulations

May 27, 2021 | by Blair & Kim, PLLC

In Executive Order 14021, President Biden stated a policy of guaranteeing students “an educational environment free from discrimination on the basis of sex. . .” and instructed the Secretary of Education to review existing regulations and other policy documents within 100 days from the date of the order. The executive order specifically identified the amendments to the Title IX regulations that took effect in August of 2020.

The Department of Education’s Office for Civil Rights (“OCR”) has recently provided some information on how it plans to proceed with that review. In a letter addressed to students, educators, and other stakeholders, OCR stated that it will be conducting a comprehensive review of the Department of Education’s regulations, orders, guidance, policies and other agency actions. The letter also specifically identified the 2020 regulations as an item to be reviewed.

As part of the review, OCR will hold a virtual public hearing allowing both live and written comments. The hearing will be held from June 7, 2021 to June 11, 2021. In the hearing notice, OCR specifically requested comments related to the regulations related to sexual harassment and discrimination based on sexual orientation and gender identity. Due to the potential sensitive nature of the comments, there will not be a recording of the hearing, but a transcript will be posted on the OCR website. The hearing notice also states that OCR will not share the personally identifiable information of commenter’s without first obtaining their consent.

Tenancy in Common Disfavored in Washington Property Distribution

May 24, 2021 | by Blair & Kim, PLLC

A court hearing a Washington divorce case must distribute all of the parties’ property. The parties’ interest in the property must be “definitely and finally determined.” A wife recently challenged the property division in her divorce decree, arguing that the tenancy in common ownership of the property did not result in a timely distribution of the property.

The parties had been married about 14 years when the wife petitioned for divorce. The court awarded full custody of both children to the father. The court did not order child support, but the father received SSDI benefits for the children, both of whom have disabilities.

The wife testified that she was disabled at the time of the trial. She worked part-time as a substitute teacher and also received SSI benefits.