Seattle Attorneys Blog

Washington Appeals Court Says Juveniles Subject to Deferred Disposition Must Give DNA

January 13, 2021 | by Blair & Kim, PLLC

Juvenile defendants may have the option of “deferred disposition.” In a deferred disposition, the defendant does not contest the state’s facts. If the court finds the statement of uncontested facts is sufficient, it finds the defendant guilty. Disposition, however, is deferred pending satisfaction of the conditions ordered by the court. If the defendant meets the conditions, the conviction is vacated.

An ongoing question has been whether juvenile defendants subject to deferred disposition are required to submit a DNA sample.

A juvenile defendant recently challenged an order that required him to submit a DNA sample. The juvenile was charged with two counts of theft of a motor vehicle, which is a felony. The trial court granted his motion for deferred disposition. He objected to submitting a DNA sample, but the court overruled the objection. The court entered guilty findings on both charges and deferred disposition. The court also stayed the requirement he submit a DNA sample pending his appeal.

New Jersey Court Grants Title IX Reconsideration Based on Changed Pleading Standard in Third Circuit

January 7, 2021 | by Blair & Kim, PLLC

Title IX law is currently in a state of flux. New regulations went into effect in 2020 significantly increasing due process protections for students accused of Title IX violations. The president-elect, however, has reportedly expressed an intention to change those regulations. Courts have also played a part in the changes occurring with Title IX. One issue that has recently been the focus of several cases is the pleading standard of Title IX discipline cases. Some courts have required allegations of Title IX violation in a disciplinary process to meet specific doctrinal tests. Several circuit courts have recently broken from this requirement and applied a broader pleading standard, resulting in a circuit split.

In a recent case, a plaintiff sought reconsideration of the dismissal of his Title IX claims following a Third Circuit opinion that he argued changed the law. A male student, identified as “John Doe,” filed suit against the university in the District of New Jersey, making both an “erroneous outcome” claim and a “selective enforcement” claim under Title IX, as well as several state law claims.

The District Court had previously dismissed his Title IX claims. The plaintiff moved for reconsideration based on a recent Third Circuit decision in similar case, Doe v. University of the Sciences. The plaintiff argued the Third Circuit decision constituted an “intervening change in the controlling law” that justified reconsideration.

Washington Court Must Consider Circumstances of Youth in Sentencing Juveniles

December 3, 2020 | by Blair & Kim, PLLC

After the U.S. Supreme Court determined that mandatory life sentences without the possibility of parole for juveniles was unconstitutional, the state of Washington enacted a statute requiring the re-sentencing of Washington criminal defendants who had been sentenced to life without the possibility of parole for crimes committed while they were juveniles. RCW 10.95.035.

A defendant who was re-sentenced after the change in the law recently challenged his new sentence. According to the appeals court’s opinion, the defendant killed two people during a robbery in 1997 at the age of 17. He was sentenced to the then-mandatory life sentence without the possibility of parole for each of two counts of aggravated first degree murder while armed with a deadly weapon, to be served consecutively, plus a deadly weapon enhancement of 24 months on each count.

Following a hearing in 2017, the defendant was re-sentenced to two concurrent terms of 42 years to life. The defendant appealed and the appeals court affirmed. The Washington Supreme Court remanded the case for reconsideration based on a recent decision.

Federal Court Enjoins University from Proceeding with Title IX Disciplinary Hearing

November 24, 2020 | by Blair & Kim, PLLC

Although the preamble to the new Title IX regulations states the regulations do not apply retroactively, a Temporary Restraining Order issued by a New York federal court recently raised questions about retroactive application. The court has recently rendered a much more detailed opinion on the issue of a preliminary injunction in the Title IX discrimination case.

According to the court’s opinion, the plaintiff had a consensual sexual relationship with a female student, identified as “Jane Roe.” She invited him to her dorm room to discuss an incident where she allegedly caught him recording her getting dressed. The plaintiff alleged he had to walk to her room because he was too drunk to drive. He continued to drink after he arrived. The two had consensual sex, and then each filed Title IX complaints against the other for the events that followed.

Roe alleged that they argued and the plaintiff put his hand around her neck and squeezed. She also alleged he engaged in sexual activity without her consent.

Modifying Washington State Spousal Maintenance

November 23, 2020 | by Blair & Kim, PLLC

Before awarding Washington spousal maintenance, a court must consider certain factors. Those factors include the financial resources of the spouse requesting maintenance; the time it would take that spouse to get the necessary education or training to find appropriate employment; that spouse’s age, physical and emotion conditions, and financial obligations; the established standard of living; the length of the marriage; and the ability of the other spouse to meet their own financial needs and obligations and those of the requesting spouse. RCW 26.09.090(1).

A wife recently challenged a modification of her spousal maintenance after the husband lost his job. The parties were married for nearly 31 years before they divorced in 2017. The husband had reached the level of senior vice president in his career and was earning a gross income of about $20,600 per month plus a discretionary annual bonus of up to half his salary. Their children were adults at the time of the divorce.

The parties agreed to an equal asset division. The wife received the home and some cash and retirement assets, and the husband kept most of the liquid assets. They agreed the husband would pay $6,000 per month in spousal maintenance for five years until he turned 60. He would then pay the wife $3,000 per month until he turned 67. The agreement was intended to give the parties equal financial circumstances until they both could access retirement funds without penalties.

Washington Court Finds Property Cannot Remain Separate after Being Conveyed to the Community

November 12, 2020 | by Blair & Kim, PLLC

The court must characterize property as community or separate when distributing property in a Washington divorce. Character is generally determined when the property is acquired. When a spouse acquires property before the marriage, that property is presumed to be separate property unless there is sufficient evidence of an intent to change it to community property. A wife recently challenged a court’s determination that property remained separate after a conveyance to the marital community.

Before the parties married, the husband moved into the home the wife owned with her previous partner.

The husband owned property on Aldergrove with two rental units. He also owned a property on Yew Street. After the marriage, the parties rented the Aldergrove units and the Yew Street property and deposited the proceeds into a marital community joint bank account.

Felony Violation of a Protection Order in Washington

November 4, 2020 | by Blair & Kim, PLLC

A person who repeatedly violates a Washington protection order may be charged with a felony. Violation of certain protection orders is a class C felony when the defendant has at least two previous convictions for violating a protection order. RCW 26.50.110(5). The defendant in a recent case appealed a felony violation of a no-contact order conviction arguing that the alleged action that constituted the violation was not itself a crime.

The defendant and his wife separated after 10 years of marriage. When they separated, they lived in a trailer on the wife’s parents’ property, and she remained there after the separation. A domestic violence no-contact order was issued against the defendant prohibiting him from keeping his wife under surveillance. The defendant was convicted of violating the no-contact order twice before the events that led to this case.

The defendant asked a deputy to perform a welfare check on the animals at his wife’s trailer. After learning a friend was caring for the animals, the deputy asked why the defendant was concerned about the animals. He told her a code enforcement officer told him he issued a letter prohibiting the wife from living in the trailer.

Supreme Court May Determine if Title IX Records Must Be Disclosed under State Public Records Act

October 30, 2020 | by Blair & Kim, PLLC

The Family Educational Rights and Privacy Act (“FERPA”) protects the privacy of “education records.” FERPA does, however, allow a college or university to disclose to the alleged victim the final results of a disciplinary proceeding related to a crime of violence or a nonforcible sex offense. FERPA further states that it does not prohibit the disclosure of the final results of such a disciplinary proceeding if the institution finds the student violated its rules or policies with respect to the crime or offense, but the disclosure may generally only include only the student’s name and violation. 20 U.S.C. § 1232g(b)(6). These provisions of FERPA generally apply to any postsecondary educational institution that receives federal funds, but when the institution is public, it must also comply with state public records laws.

In a recent case, news organizations sued certain officials of a North Carolina University (the “University”) for alleged violations of North Carolina’s Public Records Act. The plaintiffs requested copies of records related to “a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct. . .” The University denied the request on the grounds the records were protected by FERPA.

The plaintiffs changed the request to include only the names of students found responsible, the nature and date of the violations, and the imposed sanctions. The University again denied the request.

Washington Court Cannot Grant Sole Decision-Making Authority to Parent with History of Domestic Violence

October 23, 2020 | by Blair & Kim, PLLC

Domestic violence can affect all aspects of family life, including child custody. Pursuant to RCW 26.09.191(1)(c), a final parenting plan cannot require the parents to engage in mutual decision-making where the court finds a parent engaged in a history of domestic violence. A mother recently appealed a court order granting the father sole decision-making after the court found he had a history of domestic violence.

A few days after the father filed for divorce, the mother called 911 and reported a domestic assault. The father told police she had attacked him. The mother was arrested and a criminal no-contact order was issued to prevent her from contacting the father or going to the family home. The father also obtained a temporary restraining order preventing her from contacting him or their children.

Each party petitioned for a domestic violence protection order (DVPO) as part of the divorce proceeding. The court reissued the father’s temporary restraining order, but removed the children from it. It also reissued the mother’s temporary DVPO. The court granted the mother weekend residential time with the children and appointed a guardian ad litem.

Washington Appeals Court Reverses Conviction For Lack of Unanimous Jury Verdict

October 14, 2020 | by Blair & Kim, PLLC

For a Washington criminal defendant to be convicted, both the U.S. and Washington constitutions require a unanimous jury to find the charged criminal act has been committed. A unanimous jury can be an issue where the state charges only a single count but presents evidence of multiple criminal acts. If the state does not choose a single act, then the jurors should be instructed that they must unanimously find the same criminal act was proved beyond a reasonable doubt in order to convict. A defendant recently challenged his conviction on the grounds he was denied his right to a unanimous jury verdict after the trial court failed to provide a unanimity instruction.

The state charged the defendant with one count of felony harassment of “[alleged male victim] and/or [alleged female victim].” The appeals court noted that harassing each of the alleged victims would be two distinct crimes that could have been charged as separate counts. The jury was not given a unanimous verdict instruction.

To prove felony harassment under RCW 9A.46.020(2)(b)(ii), the state had to prove the defendant threatened the alleged victim by “threatening to kill the person threatened or any other person,” and that the threatened person reasonably feared the threat would be carried out. The Washington Supreme Court has held that the “person threatened” is the person who is the target of the coercion or intimidation. A person may be threatened by a threat against another person. To prove felony harassment, the state must show that the threatened person had a reasonable fear the threat would be carried out.