Seattle Attorneys Blog

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.

Washington Conviction Overturned Because Court Denied Second Degree Offense Instruction

May 14, 2021 | by Blair & Kim, PLLC

When a Washington criminal defendant is charged with an offense with different degrees, the jury may generally find him or her guilty of any inferior degree rather than the degree charged. RCW 10.61.003. A defendant recently successfully challenged his first degree conviction after the court denied his request for a jury instruction for the second degree offense.

According to the appeals court’s opinion, witnesses heard gunshots and saw the defendant leave a burning trailer. He was arrested that night.

The defendant does not speak English, so a lieutenant served as an interpreter during his interview. The defendant admitted to setting the fire and firing shots in the ground. He said he had gone to the location to kill someone he thought was threatening him. He said he had been to the trailer three times and it had always been empty, so he thought it was abandoned.

Washington Court Finds Anti-Harassment Order Petition Against Neighbor Was Frivolous

May 6, 2021 | by Blair & Kim, PLLC

Washington civil protection orders provide important protections for victims of harassment, stalking, and relationship violence. In some cases, however, a person may abuse the process and seek a protection order for another reason. In a recent case, a woman challenged a court’s finding her petition for an anti-harassment order was frivolous.

The petitioner and her husband built a fence that crossed onto their neighbor’s property in 2018. Following a letter from his attorney, the neighbor sued them. They failed to respond and a default judgment was entered. Even after being served with the judgment, the petitioner and her husband did not take down the fence.

The trial court ordered the sheriff’s office to help remove the fence in November 2019. A few days later, the neighbor died and his property passed to his brother and sister. The brother and his family went to the property to talk about the fence. The petitioner approached them and asked who they were and why they were there. The brother told her they now owned the property and were preparing to remove the fence the next week with the sheriff. He asked her to confine her horses so they would not get out. She offered to buy the property, but was rejected.

Court Dismisses Title IX Case Filed by Female Student Accused of Sexual Assault

April 28, 2021 | by Blair & Kim, PLLC

A federal court has dismissed a female plaintiff’s claims against a university in an unusual Title IX case. According to the court’s opinion, a male student, “John Doe,” first alleged the plaintiff, “Jane Doe,” committed sexual assault against him. The plaintiff subsequently alleged he had committed sexual assault against her. Following an investigation and hearing addressing both complaints, the university found the plaintiff sexually assaulted John Doe by having sexual intercourse with him when he was too intoxicated to consent. The university also found that John Doe committed sexual assault against the plaintiff when he choked her during the encounter and that he committed “Sexual Verbal Abuse.” Both students were suspended for a semester.

Jane Doe filed suit against the university, alleging in relevant part that the university’s disciplinary process violated Title IX and its decision was motivated by gender bias. She argued procedural flaws and evidentiary weaknesses led to an erroneous result. She further alleged that these procedural issues were motivated by her gender. The plaintiff also alleged several other claims, including breach of contract and negligence.

The court noted that, as a private university, the defendant did not have the same due process requirements as a public institution.

When a plaintiff alleges discrimination based on erroneous outcome, she must allege facts that raise an “articulable doubt” on the outcome’s accuracy as well “circumstances suggesting that gender bias was a motivating factor” in that outcome. Articulable doubt can be shown through procedural flaws, “inconsistencies or errors in the findings,” or insufficiency or unreliability of the evidence. To show gender bias, the plaintiff must show that she was wrongfully found guilty at least partly due to her gender.

Washington Child Support Modification

April 19, 2021 | by Blair & Kim, PLLC

A Washington child support order may be modified in certain circumstances. A court may order modification of child support if there has been a substantial change of circumstances since the current order was entered. A court may also order a modification at least one year after the current order was entered without a finding of a substantial change in circumstances if it finds the existing order results in an economic hardship on either parent or on the child. Additionally, after two years from entry of the existing order, adjustment, or modification, the court may adjust the order based on changes in the parents’ income without a finding of a substantial change in circumstances. RCW 26.09.170.

A father recently appealed a denial of his petition for modification of his child support obligation. The parents divorced in 2016. The court ordered the father to pay $1,167 in child support each month based on $10,000 per month in imputed income. The trial court found he had provided insufficient information regarding his income. At the time of the divorce, the father traveled internationally, lived in Dubai, and gave expensive gifts. The appeals court noted the child support order reflected a conclusion by the trial court that the father was hiding assets.

The father petitioned for modification after nearly three years. He claimed his income had decreased significantly and the child support was now a hardship.