Teenage Sexting, Child Pornography & Harassment

The Washington State Supreme Court just issued a decision in a case that will be over-simplistically referred as to a teenage sexting case. The details of the case reveal the incredible complexity in addressing child pornography and teenage “selfies” and harassment.


State v. Gray; Docket No. 93609-9; Opinion Author – Owens; joined by Fairhurst, Johnson, Madsen, Stephens, and Wiggens; Dissent Author – McCloud; joined by Gonzalez and Yu; Attorney for Petitioners – Kathleen Shea & Washington Appellate Project; Attorney for Respondents Gretchen Eileen Verhoef 

Amicus Curaie: ACLU, Juvenile Law Center, Columbia Legal Services, and TeamChild

Basic Facts

When Eric Gray was 17 years old, he sent an unsolicited picture of his erect penis to an adult woman and invited her to share it with her daughter. (this is a little confusing as the recipient was 22 and it is unclear how old her daughter would have been) Mr. Gray had previously been convicted of a separate offense because at the time of this case, he was already a registered sex offender. Mr. Gray had allegedly been harassing the woman he sent the picture to for a year with unsolicited and repeated phone calls. To further complicate matters, Mr. Gray has an Asperger’s diagnosis, it was not discussed much in the opinion, but Asperger’s is a condition that can impair an individuals understanding of societal norms.

The State dismissed the telephone harassment charge and did not charge  “two counts of misdemeanor indecent exposure stemming from an unrelated incident.” (This is a short sentence that creates the impression there were more complaints regarding his behavior, likely in person).

The Law 

The law at issue is RCW 9.68A.050, which prohibits developing or disseminating sexually explicit images of minors.


Appellate Court Opinion

The major question and concern is whether child pornography laws can extend to minors taking sexual selfies. The majority took a textual approach and said the statute was clear and had no exceptions for juveniles. The Majority concluded it could not create the exception in an unambiguous statute.

As noted above, a “person” is any natural person and a “minor” is merely a person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is nothing to indicate the “minor” cannot also be the “person.” Contrary to Gray’s arguments, we find that had the legislature intended to exclude the depicted minor from the definition of “person,” it would have done so as it has in other sections in this chapter. …Because the legislature has not excluded minors from the definition of “person” here, Gray was properly charged under this statute.

The Majority acknowledged the concerns of amici about the possible consequences for teens engaging in consensual sexting, but stated that those facts were not before the court:

…our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray’s actions fall within the statute’s plain meaning. Because he was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation.

The Majority also address the Dissent argument about a law not being able to be used to prosecute those who are protected by the law, i.e., not charging a woman who has been trafficked with prostitution – basically arguing that is not what happened in this case, the minor engaged in unwanted behavior when the minor sent the text. The majority noted that this issue not involve the manufacturing of pornography, i.e., a child who was trafficked for pornography is not being charged with the manufacturing of pornography that the child had no choice in creating. The Majority makes a distinction with this case in that Mr. Gray acted alone, in fact, his attention was unwanted.

First Amendment Argument

The Majority rejected the First Amendment argument stating that child pornography does not enjoy First Amendment Protections. Gray attempted to argue that because the Supreme Court has struck down a law that prohibited computer generated child pornography, because it did not involve criminal activity that his selfie should have First Amendment protection.

The majority disagreed:

We find that RCW 9.68A.050 is not overbroad. It regulates only sexually explicit images of actual children, which is speech outside the protections of the First Amendment. Because Gray transmitted such an image, his actions do not fall under First Amendment protection.


The Dissent 

The main argument of the dissent is:

…when the legislature enacts a statute designed for the protection of one class—here, children depicted in sexually explicit conduct—it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct. … Since the legislature enacted RCW 9.68A.050 to protect those children, it necessarily follows that those children who are depicted and hence exploited are exempt from prosecution under RCW 9.68A.050 for such depictions of themselves.

The dissent goes on to say the majority’s interpretation

punishes children who text sexually explicit depictions of their own bodies to adults far more harshly that it punishes adults who do the same thing. It punishes children who text such depictions of their own bodies to adults even more harshly than adults who text such sexually explicit photos to children. It even punishes the child who is groomed and led into taking such photos and forwarding them to the grooming adult!

(superfluous exclamation point in the original).

The dissent discussed Mr. Gray’s Asperger’s diagnosis and notes that he is a “prime example of someone who would benefit more from treatment and specialized services regarding appropriate social behavior than from incarceration or the social isolation of registering as a sex offender.” (This neglects to acknowledge that regardless of what happened in this case, he was a registered sex offender due to a prior adjudication- the details of what led him to have the initial sex offender registry requirement are not discussed in this case. )

The other points of the dissent were discussed above through discussing the Majority’s response to their arguments.

Additional thoughts on the case

There is a idiom in the law that bad facts make made law. In some ways, that may be a bit of what happened here. This is a case where it is hard to be sympathetic to the minor. He engaged in unwanted sexual conduct. He arguably put the adult woman, who did not want his attention, in a bad position because she had child pornography on her phone. What would have happened if she had not told the police and it somehow came out that she had child pornography? Even if she tried to delete it?

The Dissent focused on the instances where “better facts” may have created opportunities to create exceptions in the law, like grooming and the claim that photos sent in connection with grooming would result in the prosecution of the child. But the ideal facts weren’t before the court, instead the instant case involved a minor who sent unwanted photos as a part of a yearlong harassment of the recipient. This is a crucial difference that would seem to create a situation that does not trigger protecting the child as a possible victim.

In our government that seeks to be a balance of powers, this case is perhaps an important trigger for our state legislature to address this issue and to do so in a more informed way than can be done through case law can do.

Here’s a link to some 2015 research on what states have done regarding sexting. Some of the things this chart included where whether the sexting law addressed issues of minors – sending or receiving, penalty diversion, penalty informal, penalty misdemeanor, penalty felony, and interestingly whether a state has a revenge porn law. It also provides the summary of information about the state’s laws and links to find the statutes. Some interesting examples are:

New York
The two persons involved in sending and receiving the message must both be under twenty and must be within five years of age from each other. They will have to participate in an education reform program that involves a maximum of eight hours of instruction that provides information regarding the legal consequences and non-legal consequences of sexting, and the problems associated with technology and bullying.


North Dakota
It is a misdemeanor to create or possess a sexually expressive image without written consent of the individual. It is a misdemeanor to send sexually expressive images with the intent to harm the individual in the image who has a reasonable expectation of privacy; or after being told by the individual, parent or guardian does not consent to distribute the image.

Interestingly most of the discussion on this chart seems to address a particular issue where something occurs in a nonconsenual manner, i.e., one child has in their possession a photo of another and forwards it on in some way.

The question facing legislatures would be whether to completely remove any criminal penalties when minors send photos to each other. This issue is complicated because consent can be a complicated issue. In 2015, there was sexting scandal in two Bothell junior high schools (Canyon Park and Skyview junior highs). Girls were pressured to send photos, and any who sent a photo were pressured to send more or their initial photo would be disseminated. There was a Degrassi story line that involved a cheer team raising money by sending photos that was incredibly plausible.

There are also pressures about what couples do. “Sexting” is common enough that it has its own Wikipedia entry, which says it was included in 2012 in the Merriam-Wesbster’s Collegiate Dictionary. This Wikipedia entry also says a 2009 study (which is ancient in our evolving world of technology) claims that 4% of teens ages 14-17 have sent sexually explicit photos of themselves. Apparently there’s even a thing called “joke sexting” which may be a form of nonconsensual sexually explicit photos.

Revenge porn is definitely an issue. “Revenge porn” is when you send a sext to one person, like a significant other, you break-up (or they’re just a creep) and they forward it on to friends or even to your friends, teachers, employers, etc. Basically the first photo was consensual, but the future uses are nonconsensual.

Bottom line, sexting isn’t a simple issue. To assume that sexting is primarily photos sent in consensual manner and therefore there should not be any consequences for minors engaging in sexting is short-sighted. That being said, I’m not a fan of criminalizing minors and some of the diversion-type programs that other states have seem far more appropriate than more severe felony or sexual offense charges that could put teens on sexual registries. Perhaps if the laws can come up with some rational and ethical guidelines, they will make enough sense to youth to help them act in responsible ways, taking into consideration that no law will likely stop youth from sending sexually explicit messages to each other.

Washington State Supreme Court on Gun & Ammunition Tax, Expert Testimony for Medical Conditions, and DOC Sanctions while in Criminal Custody

The Washington State Supreme Court hears a wide variety of issues, the opinions issued this week (August 10, 2017), demonstrate just how complex and diverse the issues facing our courts are.

The issue getting the most publicity is the case about taxing guns and ammunition in the City of Seattle. Aug. 10, 2017 – 93723-1 – Watson v. City of Seattle.

The decision was majority decision was written by Justice Debra Stephens, joined by Justices Johnson, Madsen, Ownes, Wiggins, and Yu. Justice González issued a concurring opinion joined by Fairhurst. Justice Sherly Gordon McCloud was the sole dissenter.

The law being challenged taxed the sale of firearms $25 and the rounds of ammunition at $0.02 cents to $0.05 cents. The tax was used to pay for gun safety programs and related public health research. The dispute was whether the tax was a regulation disguised as a tax, and if it was a tax, did it exceed Seattle’s taxing authority. The court found it was a tax and not a regulatory fee disguised as a tax. The stated reason for the tax of public research and gun safety programs are “desired public benefits which cost money.” The court also noted that there was no regulatory language in the text of the ordinance nor no evidence of a regulatory purpose.

González’s concurrence agrees that it is a tax, but writes to add a separate law nerd conversation about the scope of evidence that courts should consider in deciding whether a fee constitutes a tax or a regulation. He believes in addition to the factors outlined by the majority the “charge’s regulatory effect, separate from its purpose[]” is relevant. Thus, if a tax heavily influenced purchase, then it might not be a tax. He also thinks legislative history should be considered more than the majority (the majority basically said you turn to it when the law is vague but that it cannot overturn the plain language of the law). González argues that if there is legislative intent to circumvent a state preemption statute, that would be important (it is unclear what the distinction would be with this between being aware there is a possibility a law could implicate preemption and inquiring as to what would make it not implicate preemption and knowing your intent would be something that preemption would prevent and trying to figure a way around preemption.) The concurrence does note there is nothing wrong with knowing th elaw and acting within its bounds.

McCloud’s sole dissent – appears to be based on the concept of preemption and arguing that the preemption provision bars more than regulation but also local “laws and ordinances” of all kinds that relate to firearms and becomes of this is preempted (meaning that the city cannot regulate, only the state may regulate). She does the thing I think no justice should ever do, she uses an exclamation point in her writing (and not as a quote). She also quotes the statute, and italicizes the part just before the word “regulation” as if by italicizing only part of a sentence you somehow alter the fact that the key part of the sentence is regulation. Then later she quotes the statute removing the fact it says firearms regulation and then criticizes the majority for focusing on the “firearms regulation.” While McCloud may very well be right that the legislature may come back and further expand the state preemption law to make sure it encompasses this kind of tax, but until then, the Seattle tax stands.

The other cases, while recieving less media intention are worthy of some discussion.

Street v. Weyerhaeuser Co. – 93984-5 
This was a unanimous decision authored by Justice Stephens. It involved a question about whether an expert was required in a claim for industrial insurance benefits for a claimed occupational disease. Weyerhaeuser argued that expert medical testimony must be presented that the disease arises naturally out of employment. The court rejected this argument.

At the industrial appeals hearing, three medical experts did testify. The administrative process rejected his claim and only as it got to appeal point where he had a trial did a jury conclude his back condition was an occupational disease that arose “naturally and approximately” out of the distinctive conditions of his employment.

Weyerhaeuser appealed on issue that a medical expert must testify that the disease arises naturally out of employment. Street (injured worker) argued that no, it is a causation issue and as with most factual issues it does not require an expert opinion.

The court noted a couple of things, one that the occupational law is supposed to be liberally applied, that the leading case on the occupational disease is clear that preexisting conditions exacerbated by work comes within the definition of occupational disease. The court also points out that no Washington law or court case requires “arises naturally” to be proven through expert medical testimony. Instead the court noted:

A worker need only show “distinctive conditions” of employment to meet the “arises naturally” requirement.


State v. Bigsby – 93987-0
This was another unanimous decision. It was authored by Justice González. The question before the court was whether the trial court could sanction Bigsby for sentence violations committed while he was on community custody. The court said no. The statute required sanctions for violation of a sentence to be imposed by the Department of Corrections and not the court.

Much of this case hinged on changes in the laws and the times for the changes in the law. In approximately July 2000, the law changed from postrelease supervision program to community custody. there were also more changes in 2008. The crime was committed in 2014 and because of the changes, it was the DOC had the sole authority to impose sanctions. Thus the court could not impose the sanctions.


Washington State Supreme Court Cases – week of 6/30/17

The Sate Supreme Court had four decision this week. The topics ranged from meal breaks, domestic violence orders, forfeiture of property without a conviction, and an appeal of a second degree murder conviction (also domestic violence related).

Jun. 29, 2017 – 93564-5 – Brady v. Autozone Stores, Inc.

When a case is in federal court and there is a state law that is a part of the case that the federal courts feel has not been adequately resolved by the state courts, the federal court will turn to our court to get an answer (“certified questions”).

The first question was whether there could be strict liability for not providing a meal break. The court said no (and noted that neither party supported this position).

The second questions was about who carries the burden to prove that an employer did not permit an employee to take a break. The court held an employee can establish a prima facie case by providing they did not get a timely meal break and then the burden shifts to the employer to rebut.

Jun. 29, 2017 – 93645-5 – Rodriguez v. Zavala

The issue in this case was about whether a parent could petition for a protection order for their child. The Supreme Court found the lower courts read the statute unnecessarily narrowly when it read the statute to preclude a parent from obtaining a protection order for their child. The Supreme Court found that the child should have been included in the protection order.

The Supreme Court also held that exposure to domstic violence is harmful under the Domestic Violence Protection Act. Referencing a prior decision, the court stated, “a child is psychologically harmed or placed in fear by observing violence against a family member.”

“Ample evidence supports the view that direct and indirect exposure to domestic violence is harmful….It strains common sense to think that L.Z. was not somehow exposed to domestic violence given the facts of this case. ”

Based on this, the Supreme Court found that the trial court abused its discretion in failing to grant the protection order.


Zavala’s violent threats against L.Z. are “domestic violence” under the plain language ofRCW 26.50.010(3), and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him. Accordingly, we reverse the Court of Appeals. We also conclude that exposure to domestic violence constitutes harm under the DVP A and qualifies as domestic violence under chapter 26.50 RCW. Because the trial court failed to consider the harm to L.Z. based on an incorrect reading of .010(3), it abused its discretion.

Jun. 29, 2017 – 93907-1 – City of Sunnyside v. Gonzalez

Police are allowed to take property if it is connected to drug manufacturing or distribution (there is significant critique of this policy in discussion of criminal justice reform).For law nerd, RCW 69.50.505. The court noted the case is highly fact-specific. In discussing the law, “the court stated the statute generally does not contemplate forfeiture where the only violation is mere possession of a controlled substance; the violation usually must involve drug manufacturing or transactions.”

The “seizing law enforcement agency” (the City in this case) bears the burden “to establish, by a preponderance of the evidence, that the property is subject to forfeiture.” The court noted that there is a difference between the federal and state statutes.

Furthermore, the briefing from both parties appears to assume that forfeiture is allowed pursuant to RCW 69.50.505(1)(g) for personal property if the property is “traced as the proceeds of illegal drug activity.” Pet. for Review at 1 O; see also Answer in Opp ‘n to Pet. for Review at 6. While this assumption may be appropriate as applied to the federal forfeiture statute, 21 U.S.C. § 881(a)(6), it is inconsistent with the plain language of Washington’s statute, which allows forfeiture of personal property that was “acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter,” RCW 69.50.505(1)(g) (emphasis added).


Even where the question is limited to whether substantial evidence supports a finding by a mere preponderance of the evidence, appellate review must be sufficiently robust to ensure that an order of forfeiture is in fact supported by substantial evidence so as not to deprive people of significant property rights except as authorized by law. This is particularly important in the forfeiture context because an individual may lose valuable property even where no drug crime has actually been committed, and because the government has a strong financial incentive to seek forfeiture because the seizing law enforcement agency is entitled

to keep or sell most forfeited property. RCW 69.50.505(7).


Jun. 22, 2017 – 92816-9 – In re Pers. Restraint of Lui

Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancee, Elaina Boussiacos.  The Court of Appeals dismissed each claim as meritless and the Supreme Court affirmed.

The court rejected the claims of ineffective assistance of counsel and related prosecutorial misconduct claims. The court walked through the various claims and analyzed each one concluded there was no basis for the claim. The court rejected the Brady violation claim, the juror misconduct claim, and the newly discovered DNA evidence (there was blood the gearshift the jury new did not belong to the defendant and they later matched the blood).


We affirm the Court of Appeals’s denial of Lui’s claims and dismissal of his personal restraint petition. Lui is not entitled to a new trial due to ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence. Nor is he entitled to a reference hearing to determine whether counsel was sleeping at trial or whether the State withheld exculpatory or impeachment Brady evidence, or to prove his juror misconduct claim.

U.S. Supreme Court Affirms that Obergell Requires Placing Married Same-Sex Parents on Birth Certificates

Maintaining a tradition of issuing cases impacting the LGBTQ community on June 26th, the U.S. Supreme Court issued its decision in Pavan v. Smith, upholding the requirement outlined in Obergefell (the case that banned marriage discrimination based on sexual orientation/gender) that birth and death certificates reflect the same-sex spouse.

The decision was a per curiam opinion, which means it was a decision of the court. Per curiam opinions are rare, but this is the second time since Obergrefell that the court has issued a per curiam opinion with regard to marriage and families. (See U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption for a discussion of the other case).

The Paven case involved two lesbian couples in Arkansas. Both couples were married in another state and then had children in Arkansas, using anonymous sperm donations. Both parents filled out the paperwork to have their spouse listed as the other parent on the birth certificate. In both cases the Arkansas Department of Health issued certificates bearing only the birth mother’s name. The Arkansas Department of Health relied on the Arkansas law that stated that if the mother was married at the time of either conception or birth that the name of her husband shall be entered on the certificate as the father of the child.

The Arkansas Supreme Court upheld the gendered nature of the law as not violating Obergefell, asserting that the statute centered on the biological relationships, not on the marital relationships, and so it does not run afoul of Obergefell.  The U.S. Supreme Court disagreed finding that it denied marriage same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The per curiam decision goes on to say that Obergefell proscribes such disparate treatment and the Obergefell explicitly referenced birth and death certificates. The court also noted that the statute is not about biology as married men are required to be on birth certificates of the children born of the marriage when ART is used. The decision of the court also noted that the adoption statute allows for birth certificates to be amended to reflect the adoptive, nonbiological parents, to be put on the birth certificate.

Despite being a per curiam decision, Gorsuch, Thomas and Alito dissented. Gorsuch wrote, that he did not believe this case met the threshold of a per curiam decision because he did not think the issue was settled and stable, which are the types of case per curiam decisions are supposed to be reserved for.

This dissent repeated the state’s argument that the per curiam decision noted was false on its face – that biology was the reason for the gendered nature of the birth certificate law. The dissent comes up with the term, “biology based birth registration regime” perpetuating the facially false argument that the gendered nature of marriage and the birth certificate was related to biology. The per curiam opinion specifically discussed this, noting that when an opposite sex married couple uses ART to conceive the husband must be put on the birth certificate and that the adoption law places adopted parents on the birth certificate, so a birth certificate is clearly not about biological connections).

The dissent makes another argument that makes no sense when it stated,  the “State agrees, the female spouse of the birth mother must be listed on birth certificates too.” This whole case is based on the refusal to allow same-sex married spouses on the birth certificate, so it is unclear how the Gorsuch could make this claim. The only way that this claim would be accurate, would be if the state conceded the same-sex spouse should be on the birth certificate, which would make the biological argument pointless.

The dissent does what the conservative agenda often tries to do -create a path to achieving its desired goal to discriminate against the LGBTQ community. The dissent essentially invites states to create “biology based birth registration regimes.” This is clearly an anti-LGBTQ stance, but it is more than that it’s a push towards the idea of biological imparity connected with parenting. The impact of this approach would impact far more people than the LGBTQ community. Assisted reproduction is widely used in the U.S. by opposite-sex married couples, single women, and same-sex couples. According to a February 2014 CNN article, 61,740 babies born using some form of assisted reproduction technology in 2012. A 2015 Huffington Post article notes that there is a guestimate that is 15 years old that between 30,000 and 60,000 children are conceived using sperm or egg donors (the article also criticizes the lack of tracking of this information).

It is also important to connect this case to the other recent per curiam adoption case that said Alabama could not invalidate a Georgia adoption. One of the judges at the Alabama Supreme Court rallied on about the idea that adoption is merely an administrative tool and doesn’t create real parentage and the state can revoke parentage on a whim without meeting the constitutional requirements for biological (“real”) parents. This is perhaps one of the reasons, Chief Justice Roberts, who is an adoptive parent, did not join in the dissent. Adoptive parents understand biology is not the only way people become parents and biology does not somehow make more of a parent.

What does this decision mean for parents using Assisted Reproduction Technology, especially same-sex parents?

This decision makes it clear that if a state has provision that requires a married spouse to be placed on a birth certificate, any effort to restrict this to opposite sex couples will be deemed unconstitutional. The per curiam nature of the decision is an effort to send a strong message – states cannot rely on gendered laws to limit the benefits and responsibilities allocated through marriage. Arguably this would also apply to parentage statutes, statutes that typically say that a child born of a marriage is presumed the legal child of both parents in the marriage.

Nevertheless, the dissent, the long-term hostility to the LGBTQ community and families, and the backlash to marriage equality make it imperative for same-sex couples (and arguably any parent conceiving through ART where they may not be the biological parent to their child – including birth mothers who use an egg donor) to affirm their parentage through a court order. It is clear that there will be continued challenges to parentage and there are still courts and justices open to arguments that same-sex parents aren’t real parents, and more than that, that nonbiological parents are not real parents.

There are two types of court orders, the one that many advocates believe provide the strongest protection are second parent adoptions (more commonly referred to as stepparent adoptions). This is a process where the nonbiological parent would adopt their child. Adoptions are recognized nationally and internationally.

The other option is an order affirming parentage (these have various names). It is an court order that affirms that that the intended parents are the legal parents and would be entitled to enforcement under Full Faith and Credit. States that have adopted a version of the Uniform Parentage Act (UPA) may also have an ability to use the holding out provision for parents who were not married at the time of conception or birth and who have not done an adoption. Provided that the nonbiological parent has met the requirements of the state statute for the holding out provision, they could file a parentage action and affirm their parentage.

JELS has successfully done parentage confirmations in Washington. Every situation is unique and there may be some situations that a parentage confirmation would not be appropriate (i.e., if a child was conceived through intercourse, even if all parties intended the child to be the child of the married couple).  I like parentage confirmations because it does not required either parent to allege that they are not a parent and therefore must adopt their child to become a parent. It should also be less expensive to do a parentage confirmation than an adoption and it is relatively quick. You won’t get the same feel good ceremony many people experience when they do an adoption, it’s more like a somewhat administrative process to affirm your parentage.

Disappointing Parentage Case Out of Idaho

Queer Idahoans had their families narrowly defined, excluding a nonbiological parent from the definition in a recent case, Doe v. Doe, 44419; Supreme Court of Idaho; June 7, 2017.

The case involved a nonmarried couple. In the court’s recitation of facts, it alleged that they were not married because the biomom didn’t not want to formalize the relationship with the nonbiomom. The court concluded that because Idaho’s parentage statute (the statute that defines who is a parent and how you can affirm or rebut your parentage) was clear that the presumption of parentage only applied to married couples and since the couple was not married, the nonbiomom wasn’t a parent (despite the fact their appears to be little to no dispute nonbiomom was involved in ever part of the assisted reproduction decision, there at the birth, and involved in the child’s life as a parent up until the biomom excluded her from the child’s life.

Glaringly absent from the court’s analysis was the fact that the couple’s relationship ended in 2012, for those who have already forgotten our history, same-sex couples were prohibited from marrying in the vast majority of states in 2012. In fact, it was at the end of 2012 that several states, including Washington passed marriage equality (or in the case of Washington, we had a referendum affirming the law passed by our legislature in February 2012). Idaho was not one of those states.

It would take until the June 26, 2015 for the U.S. Supreme Court to uphold marriage equality in Obergefell v. Hodges, 576 U.S. ___ (2015) and outlaw all of the state laws discriminating against same-sex married couples.

The Idaho court refused to create a de facto parentage doctrine and limited an existing decision that perhaps opened the door for nonbiological parents who had acted as parents and formed strong parental bonds with the child from accessing legal rights to the care, custody, and control of  their children.

This means that same-sex couples in Idaho are particularly vulnerable if they have not adopted or confirmed parentage through a court proceeding.

It is worth noting, that the court did not address whether same-sex married couples would be prevented from being presumed to be the legal parents of their child. The court discussed Idaho’s parentage statute, which is gendered (i.e., references “mother’s husband”). The court seemed to indicate that its decision turned not on the gendered nature of the parentage act, but that the couple was not married, with the implication that had the couple been married, the nonbiomom may have been considered a legal parent in the eyes of the court. However, I wouldn’t hold on to this distinction as some sort of bright hope that married same-sex couples will be recognized as parents of their children. The fact that the court failed to address the fact that the parents could not legally marry in Idaho for the entirety of their relationship speaks loudly of a bias that they wanted to hide so as their decision would be less likely to be challenged as discriminatory.

As I have often comment in blogs or presentations – marriage equality does not equal parentage equality. Decisions like this make all too clear how precarious our legal rights to our children can be in the LGBTQI communities. Any parents who have children together who have not adopted or affirmed parentage should seek advice from an attorney in their state.

There are options available. Many states have parentage statutes that include a holding out provision, which means that if you have been living with the child since birth and taking on the role of a parent with the consent of the other party, you may be able to affirm parentage. If you are married, every state should have some law presuming that the child is a child of marriage, and even if the statute is gendered, you could pursue a parentage confirmation.

Second parent adoption (a/k/a stepparent adoption) is the option that many attorneys who practice primarily with LGBTQI clients recommend. While this option always sits badly with me, I do not think an intended parent should have to adopt their own child. However, adoptions have been tried, tested, and affirmed. If you have any concerns your spouse, or if your spouse were to predecease you, their parents, would fight to have you excluded from your child’s life, an adoption may well be the safest option.

Sadly, homophobia is alive and well and we know with the spate of laws passing trying to allow same-sex couples to be denied adoption and foster care placements that homophobia will defeat the best interest of the child for many people. As such, protecting your relationship to your child is crucial.

Arlene’s Flowers and Washington State’s Commitment to Nondiscrimination

State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. The Washington State Supreme Court unanimously held that the a business owner engaged in secular activities could not discriminate against their customers based on alleged religious beliefs (I use alleged, not the court. I use “alleged” for a number of reasons, but perhaps most important is the bizarre distinction Arlene’s Flowers attempts to draw between selling flowers to a gay couple for a wedding versus Valentine’s day, anniversaries, birthdays, or other occasions where one person in a couple is purchasing flowers for the other and attempting to claim that one violates their religion and the other doesn’t. It seems clear that applying to marriage is simply a wedge to being allowed to discriminate against LGBTQ people in any setting).

UPDATE: On July 17, 2017, Arlene’s Flowers petitioned the U.S. Supreme Court to review the case.  On June 26, 2017, The Supreme Court agreed to hear a case involving a Colorado Baker who wants to discriminate against same-sex couples when selling cakes for marriages (but again claims that he will sell cakes to same-sex couples for other reasons). 

Continued discussion of the Alrene’s Flowers Case:

  •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
    • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
    • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

    • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
      • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

    • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association’” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

What this means for the LGBTQ Community in Washington

We know our experience and the experiences of our friends, people continue to discriminate based on sexual orientation and gender identity despite the laws. The best way to get compliance is to complain to the people who can command enforcement. If you experience discrimination in a public accommodation, file a complaint. The Washington State Human Rights Commission is the agency where a complaint should be filed. The Office of the Attorney General also has a complaint process.


Bias Based on Sexual Orientation or Religion in a Parenting Plan is Unacceptable and Invalidates the Parenting Plan

Short Overview

The Washington State Supreme Court held that when a parenting plan includes restrictions in any part of the parenting plan based on sexual orientation the entire order is invalidated because

This bias casts doubt on the trial court’s entire ruling, and we are not confident the trial court ensured a fair proceeding by maintaining a neutral attitude regarding Rachelle’s sexual orientation.

In some ways, this was already the rule in Washington, but this decision makes it abundantly clear that it is improper to even try to bring up sexual orientation as a factor in a residential schedule, even if the family practiced a religion that viewed homosexuality as sinful.

Case Details

In re Marriage of Black, Docket No. 92994-7; Opinion Author – Justice Fairhurst, Unanimous Opinion with a concurrence authored by Justice Wiggins and joined by Justice Stephens; Attorney for Petitioners – Amanda J. Beane, Kelly F. Moser, Julie Wilson-McNerney all of Perkins Coie, and David Ward of Legal Voice; Attorneys for Respondent – Kenneth Wendell Masters and Shelby R. Frost Lemmel of Masters Law Group PLLC

Legal Voice was one of the leading advocacy groups in this case. Their discussion of this ruling can be found here.

Because of the issues involved in this case, there were numerous amicus (friend of the court) briefs. You can find the list of the attorneys for the organizations providing amicus briefing (ACLU-Wa and National, NCLR, Fred T. Korematsu Center for Law & Equality, SU Law Professor, QLaw, GLAD). Full disclosure, I provided some assistance on the ACLU Amicus brief.

Basic Facts

Couple marries young (wife 19, husband 21). They were religious and involved in the church. They had three children and the mother wrapped around her life around the children, giving up her work in her family’s business to be able to focus on her family. The father worked in her family’s business and provided the financial support. Like so many divorcing families, it is clear that both parents loved their children.

Like many people, later in life the mother realized that she was not straight. As much as she loved her family, she could no longer hide this important part of her identity. She told her husband. They continued to reside together, agreeing that the mother would explore her sexual orientation.

The mother was committed to making her children come first. Based on her upbringing and belief that having a stay-at-home parent was important for children, she stayed in the family home, with the father, attempting to disrupt the children’s lives as little as possible, only moving out when the trial court ordered the family home would go to the father and the mother had to move out. The court made the father the primary custodian and said he got to make all the decision about the children (something typically reserved for high conflict cases, particularly instances with domestic violence). In addition to providing limited residential time with the mother and allowing the father to make all major decisions, the trial court limited the mother’s ability to talk about her sexual orientation or introduce the children to her long-term partner. The court of appeals struck down the provisions that were explicitly homophobic, but allowed all the other provisions to remain in place (For more discussion of the basic facts and the court of appeals decision, check out my earlier blog).

Washington State Supreme Court Opinion

Sexual Orientation and Parenting 

The Court reaffirmed that a trial court may not consider a parent’s sexual orientation as a factor for custody decisions absent an express showing of harm to the children. This principal was first articulated by the Washington State Supreme Court in 1983, In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983) it was reiterated in In re Marriage of Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 (1996) (trial court abuses its discretion “if it restricts parental rights because the parent is gay or lesbian).

In this case, the GAL issued a homophobic report that was highly critical of the mother for “making choices” to divorce the father and for her “lifestyle choices” and essentially blamed Rachelle for the marriage ending the marriage, believing she should have waited until the children were grown before living an authentic life. The trial court relied heavily upon the GAL report. The Supreme Court stated:

We are not confident the trial court here approached the parenting plan with an attitude of neutrality regarding sexual orientation that fairness demands.

The question to tease out in the case was, when is a trial court basing its decision on sexual orientation? The father argued that the trial court did not base its residential schedule based on sexual orientation and that the numerous references to her sexual orientation were simply included for context. The mother argued that the because the GAL report, the trial, and the opinion where full of references and restrictions connected to her sexual orientation, the entire parenting plan was tainted with bias and needed to be reversed.

Previously, our state Supreme Court decisions allowed parenting plans to remain in effect even if there was a reference to sexual orientation. In the Wicklund decision, while the court held that parental rights couldn’t be restricted based on sexual orientation, the result of the case still ended up feeling like that was exactly what was allowed to happen. The trial court trial court focused on causing the least amount of change for the children, which inherently created a bias on the parent who was trying to live more authentically.

The Washington State Supreme Court noted that since Wicklund was decided in 1996 courts have recognized that members of the LGBTQ community are vulnerable to discrimination. The court referenced Obergefell v. Hodges, the decision that affirmed the dignity of same-sex relations and overturned marriage discrimination (as a side note, the court also noted that this decision abrogated its own decision in Andersen v. King County – the case where our state failed to properly apply constitutional rights, arguing that dignity of LGBTQ people should be subject to political whims and that gays were going to get there through the political process. This ultimately happened, but it took six more years and justice deferred is justice denied).

The court did not draw the connection that 1996, when Wicklund was decided, was also the height of the gay marriage panic when the Federal Government passed the Defense of Marriage Act and many other states passed “Baby DOMAs.” When Wicklund was decided, in many states it was still criminal to engage in same-sex sexual relations – those laws wouldn’t be held as unconstitutional for another seven years in Lawrence v. Texas.

I mention the timing because as President Obama noted when he finally supported ending marriage discrimination, attitudes around the LGBTQ community have evolved, not simply with respect to marriage, but with respect to our ability actually live a life without being criminalized.

In the Black case, the State Supreme Court found that the trial court abused its discretion for failing to remain neutral in determining the residential schedule. This is a good ruling, but I would have preferred a bit more bright line ruling: Sexual Orientation cannot be used in determining a residential plan and any plan that bases any part of a decision or restrictions on sexual orientation will be presumed to have abused discretion and will be void. This case does not appear to overrule the caveat that sexual orientation may influence a residential schedule if it harms the child. This is wrong. Would anyone argue that if a same-sex marriage ended because a partner realized s/he had a deep sexual attraction to someone of an opposite-sex that this could harm the child? No. Sexual orientation does not harm children. LGBTQ people are not inherently sexually deviant with a greater likelihood that their behavior could be harmful. In the same way that someone who has a heterosexual orientation may engage in harmful sexual behaviors, it is the actual harmful sexual behaviors that is a problem and has nothing to do with sexual orientation.

Nevertheless, the ruling effectively determined that sexual orientation cannot be used in any part of a parenting plan and if it a trial court makes unnecessary reference to sexual orientation and especially if a trial court includes any limitations based on sexual orientation, it will be presumed to bias the entire parenting plan (not simply the place that references sexual orientation).

Religion and Parenting 

In this case, the children were raised in a conservative Christian faith that was judgmental towards divorce and sexual orientation. The trial court also based parenting decisions on stability and maintaining the religious identity the children were raised in (without ever inquiring as to the children’s own religious beliefs). This clearly favored a particular religion. The mom still maintained a Christian identity, but she embraced Christian ideals that were more accepting. The court determined that the children must be raised in the more conservative Christian setting. This decision also violated the law with regard to parenting decision.

[Washington courts] require an analogous attitude of neutrality regarding conflicting religious beliefs. Although a trial court may consider the parents’ and the children’s religious beliefs when fashioning a parenting plan under RCW 26.09.184(3), it may not favor either parent’s religious beliefs without a clear showing of harm to the children[.]

(emphasis added).

The consideration of religion is intended to allow for an ability to figure out religious holidays and residential schedules and possibly other issues (i.e., coordinating taking children to religious services where there is a gender segregation, coordinating important religious milestones, like bar/bat mitzvahs).

In the Black case, religion and sexuality were intertwined. The argument was basically that because the children were raised in an ultra conservative religion they would be harmed by the mother’s sexual orientation because it contradicted the teachings of their religion. The trial court concluded that the father was better able to maintain the religious beliefs the children had thus far been raised. Thus, the court effectively favored the father’s religion.

The court didn’t do an analysis if either religious practice would harm the child. Arguably, if the court had done such an analysis, if any religious practice would have the possibility of harming the children, the father’s religion, which demands viewing their mother as a sinner, would be more likely to cause an actual detriment to the children.

Bias in a Parenting Plan Requires Dismissal of the Entire Parenting Plan

Parenting plans include numerous provision, there is the time each parent has with the the children, there are decision-making provisions, there are possible restrictions on visitation, and any parenting plan done with lawyers involved will include a vast array of “other” provisions that attempt to help guide parents on behaving respectfully with each other during the challenge of co-parenting. The Supreme Court decision essentially held that these other decisions must be reviewed when the trial court’s decision appears to have been tainted with bias.

What Happens Next? 

Sadly, this decision doesn’t mean an end for the family. Perhaps they will be able to go back to mediation in light of this decision and make agreements about their parenting, and increasing the mother’s time with her children. If they cannot reach agreements, they will have to go to trial. They will have to incur expense to hire a new GAL and likely another psychologist to interview the children. At the time this decision was issued, the court noted that one of the children is already 17, parenting plans do not apply to legal adults, so that means the oldest child will likely not be impacted, because with how slow the process is, he will likely be 18 before a final parenting plan is entered. The vast majority of his high school life had his mother radically diminished from his life because of the bias of the trial court and the bias of the ex-husband. If the ex-husband had not pushed for the restraints and limitations in the children’s life, the court never would have ordered it. The other two children are 14 and 9, so there is still a significant impact that a new parenting plan could have on their lives and their relationships with both parents.

Cases like this are heartbreaking. It seems clear that both parents love their children and that their children love both their parents. But in the way that break-ups can be toxic, this break-up got toxic and the father successfully leveraged the lingering homophobic attitudes to try to diminish the relationship between the children and their mother.

The reality is that as the children grow up, there is no way they will be anything other than resentful to the father for his efforts to marginalize their mother in their lives. Divorce does not inherently harm children, messy divorces where a parent is vindictive against another parent harm children. Children know more than we realize and eventually the father’s relationship with the children will likely suffer from his actions.

It didn’t have to be this way. In fact, our legislature has done everything it can and our courts have interpreted the statutes in ways to try to prevent exactly this kind of harm. The trial court missed an incredible opportunity to apply our state statutes to assist parents in doing what is best for their children. Instead of having a long court battle lasting years and years, had the court followed the statute and court law, the family could have been on a path towards healing and existing in their newly defined family.

Additional Side Note

Sexism, heterosexism, and homophobia are all leaves on the same branch of bias based on sexual stereotyping. In addition to religion and sexual orientation, this case seemed to be tinged with bias based on gender/against a parent who stays at home with children. The Supreme Court did not address this issue, but the decision by the trial court clearly punished the mother for being a stay-at-home parent. It argued that the father was more stable because he had a job. The court and GAL seemed to be critical of the mother for not making more of an effort to become employed outside the home. Despite questioning her ability to support herself, the court denied her alimony.

This case presents a particularly bizarre situation to assert the financial stability of the father because his financial stability is based on his employment with the mother’s parents. That seems like an inherently unstable relationship. What if the father starts dating someone else and the parents fire him? What if the parents evolve in their acceptance of their daughter and fire him for the trauma that he caused to their daughter?

Nevertheless stability referenced in our parenting statute is not financial stability or religious stability, it is the stability of the relationship between the parents. To use financial stability as a basis in a parenting plan deeply contradicts the legislative efforts to usurp that kind of decision through the creation of the child support schedule. It is dangerous to identify financial stability as a basis for a residential schedule because it will inevitably punish one parent. Studies show that regardless of sexual orientation, families almost universally tend to have one parent who makes financial sacrifices to support the family. Because of systemic sexism (i.e., that women still make significantly less for the same jobs as men, particularly if they are women of color), in opposite-sex relationships, it will often make the most economic sense for women to make the financial sacrifice, factoring in “financial stability” would result in systemic discrimination against (primarily) women in parenting decisions.




Summary of February 2017 Supreme Court Decisions

Appellate decisions within two weeks of 2/28/17:

Washington State Supreme Court Decisions:

  • In re Marriage of Zandi, 92296-9 (unanimous opinion)- Court held that out-of-network expenses are uninsured medical expenses and must be paid according to the parties’ child support order.
  • “The legislature defines ‘” [u]ninsured medical expenses”‘ as costs “not covered” by insurance. RCW 26.18.170(18)(d). WAC 388-14A-1020 clarifies that this includes costs “not paid” by insurance, even if those costs would be covered under other circumstances. Because the health care expenses in this case are unambiguously within the scope of RCW 26.18.170(18)(d), financial responsibility is allocated by the 2009 order and may not be modified absent evidence of changed circumstances or other evidence consistent with the requirements of RCW 26.09.170(6)-(7).”

    • In this case, it didn’t matter that the father had requested the mother get pre-approval from the insurance company, the mother thought that the issue was urgent enough to require immediate attention. Nothing in the record indicated that the mother acted in bad faith (she did request pre-approval and was assured by hospital staff it would be approved). The court said that to look at the fact that the father did not have a say in the incurrence of the out-of-network expense, “incorrectly introduces concepts of marital fault into the enforcement of a child support order.”
  •  Estate of Ackerley v. Dep’t of Revenue, 92791-0 , (5-4 opinion, Madison authored majority, Wiggins authored the dissent). This is a case concerning the Estate and Transfer Tax Act, chapter 83.100 RCW. There is something called the “gross-up rule” wherein the federal government assesses estate taxes on gift taxes paid within three years of death. The question was whether they also needed to be included as a part of the Washington taxable estate (this would result in more taxes being owed to the state). The majority said yes. The court held:
    • “Following the legislature’s clear mandate, we must also find that the gift tax paid is part of the Washington taxable estate and transferred upon death as part of the entire estate. Thus, the Washington State Department of Revenue (DOR) properly included the gift tax paid in its assessment of Barry Ackerley’s estate.”

    • The focus of the majority is on the concept of “transfer.”
    • The dissent argued that, “[w]here no transfer exists, Washington’s Constitution prohibits the imposition of an excise tax.” In this case, the federal gift taxes were fully and finally paid during life, so no transfer of gift occurred at death. This would mean exclusion of the gift tax from Washington’s estate tax. This focus of the dissent is on the concept of “direct tax:”
    • “Because the estate tax is imposed on a “transfer of property,” it is an excise tax, not a direct tax. And because the tax is not a direct tax, it is not subject to the uniformity requirement of the Washington Constitution.”


  • In re Disciplinary Proceeding Against Conteh, 201,448-8  (unanimous opinion – Madsen author). This case involves the suspension of an attorney and whether the Disciplinary Board should have reviewed the case on its own, even when the attorney did not appeal the suspension. The disciplined attorney appealed the decision of the Disciplinary Board not to review the suspension. The court noted that the attorney did not identify any specific assignments of error or any findings he disagreed with. Since unchallenged facts are assumed to be true on appeal, the attorney had no basis for his appeal.


  • Lundgren v. Upper Skagit Indian Tribe, 91622-5 (5-4 opinion – Johnson authored majority, Stephens authored dissent). This case involves a property dispute involving land that was purchased by a tribe and where there had been a long-term fence that was inconsistent with documented boundary lines.
    • Majority Opinion: There were issues of sovereign immunity because of the tribal ownership of the land. The issue involved In Rem jurisdiction and the right of Washington Courts to decide actions regarding property. The majority discussed CR 19 and whether the tribe was a necessary party and determined because the Lundgren’s obtained possession long before the Tribe acquired the disputed property, the Tribe was not a necessary party and therefore there was no concern regarding sovereign immunity. The majority also noted that there would be no other remedy without suit in Washington Superior Court.
    • Dissent: The dissent’s argument is captured succinctly with this quote:

      “While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe’s defense, the majority gives “insufficient weight” to the sovereign status of the Tribe and erroneously “reach[es] and discount[s] the merits of [the Tribe’s] claims.”


  • Peralta v. State, 92675-1  (Unanimous Opinion – Wiggins author). This case involved an admission during pretrial discovery (discovery is where both sides ask questions and provide documents relevant to the case). There is a part of discovery where you can be asked to admit or deny certain facts. This case involved an issue where a woman was hit while walking while intoxicated. She admitted in discovery that she was intoxicated and didn’t attempt to qualify it, like she had a drink, but didn’t think she was impaired. The trial court allowed the admission and required her to be bound by it, including it in a jury instruction. The jury found that Peralta’s intoxication was more than 50% of the reason why Peralta was hit. The Supreme Court upheld the trial court’s decision because the intoxication defense statute provides a complete defense to an action for personal injury when the person injured “was under the influence of intoxicating liquor” at the time of the injury.
  • State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. I hope to blog about this case in more detail soon, but in the meantime, here are the basics.
    •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
      • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
      • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

      • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
        • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

      • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association'” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

Bullying on the Bus: Bellevue School Discrimination Case

On August 29, 2016, the Washington State Court of Appeals (Division I) issued a published decision involving claims against the Bellevue School District regarding the bullying and retaliation the school bus. The case itself involves some legal technicalities, specifically around jury instructions. Specifically the question was essentially whether the trial court erred in using the statutory definition in the harassment, bullying, and intimidation statutory statute in a jury instruction and whether that created an improper higher standard for the family to meet in their negligence suit.


Allen & Jennifer Quynn, Appellants v. Bellevue School District, Respondent; Docket No. 73825-9; Opinion Author – Dwyer; joined by Becker and Trickey; Attorney for Appellants – Katherine George; Attorney for Respondents James Baker and Kenneth Masters. 

Basic Facts

Parents sued the Bellevue School District, claiming that the district had been negligent in failing to protect their daughter (while the child is referenced by her name in appeal, to increase her privacy, she will be referred to as “Daughter”) from harassment, intimidation, and bullying that she suffered while riding the school bus during her eighth grade year of middle school. A group of boys where allegedly targeting female students and Daughter reported an especially serious incident. She then became the focus of the boys’ aggression. There was name calling, groping, and having items thrown at her that resulted in welts.

She did not report the harassment, intimidation, and bullying that occurred against her after her report. The claim in the case is that the District knew or should have known that bullying was a likely result from the reporting and the school should have done more to ensure Daughter’s safety.

The Family challenged the decision with regard to a jury instruction regarding the duty of the school district and the definition of harassment, intimidation and bullying. They challenged based on (1) The district owed the child the highest duty of care, one applicable to common carriers, (2) inclusion of the definition of harassment, intimidation, and bullying unfairly limited the reach of their negligence claim, and (3) the instruction improperly articulated the duty and responsibility owed to Daughter by the district.

Appellate Court Opinion

The Court of Appeals agreed that school districts have a special relationship with students that gives rise to a duty of care to prevent a third party from causing physical injury to another.  This case cites McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953), which held that because a child is compelled to attend school and has an involuntary relationship with the school district, the district has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect pupils in its custody from such dangers.”

In this case, the  Court of Appeals disagreed with the family that School Districts are required to provide the highest level of care on school buses. Instead the court held that the standard of care on a school bus, regarding the behavior of children, versus how a bus is driven, is the same as it would be anywhere else at school – reasonable care, “as it supervises the pupils within its custody, the district is required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances…The basic idea is that a school district has the power to control the conduct of its students while they are in school or engaged in school activities and with that power goes the responsibility of reasonable supervision.”

The Court of Appeals distinguished the heightened duty of a common carrier, which they linked to activities related to driving a bus from a lower level of duty, which they believed was more appropriate for behaviors of students on the bus. Basically the heightened duty of car is for driving functions, including making sure you use the stop sign so children can cross safely; reasonable care must be used with regard to the behavior of the children.

The next question involved a jury instruction that used the statutory language of the state harassment, intimidation and bullying law (“HIB Law”). In discussing the use of the statutory language in the instruction regarding negligence, the Court of Appeals noted that the HIB Law does not create a private right of action (meaning the HIB Law doesn’t allow parents to sue, so it’s not appropriate to use that definition when the suit doesn’t arise out of that law). The Court of Appeals found that by imposing the administrative definition of “harassment, intimidation, and bullying” the trial court improperly restricted the scope of the tort claim, which had the impact of requiring enhanced elements of proof in order to prevail.

Translation: the suit was regarding the school’s negligence. Instead of focusing on the question of whether the school was negligent, the jury was instructed to look at the HIB Law definition and determine whether the behavior of the bullying students reached a a level of physical harm, “substantially interfering with a student’s education” or “substantially disrupting the orderly operation of the school.”

The law around negligence not require physical harm. The court stated, “Indeed, to suggest that a bullied student cannot recover for emotional or psychological harm in the absence of actual physical injury runs completely counter to the analysis in McLeod.”

On top of the fact that physical harm is not required, proving that behavior had a “substantial” impact on a student or the school is a much higher burden than proving a school was negligent. The depth of the harm in a tort/negligence action is typically dealt with in determining the amount of damages (if any) and not whether the school was actually negligent.

The Court of Appeals said the error in this case required a new trial. As is all to often the case in cases involving schools, the litigation goes on longer than children are even in school. The incidents in this case occurred around December 2010. Now, in September 2016, the case is being sent down for another trial (that’s if the school district doesn’t appeal this ruling, if this ruling gets appealed and goes to the State Supreme Court and is heard and affirmed by the Washington State Supreme Court, resolution through a litigation process is likely still years off. The child was in the 8th grade when this incident occurred. Hopefully she’s in college now.


Washington State Supreme Court Case Re: School Negligence

The Washington State Supreme Court just issued a decision regarding school liability in a case where a 14 year female junior high student was raped by an 18 year male high school student who was also a registered sex offender. Approximately two years before, the male student, in the same school district, sexually assaulted a different junior high student. He was charged with indecent liberties and suspended for the rest of the school year. He was required to register as a level one sex offender and was not allowed contact with people two or more years younger than himself.

It is unclear to me whether the same principal was at the school when the original incident happened, but the principal at the time of second incident was notified by the Pierce County sheriff that the male student was registered sex offender. The record indicates that the principal did not inform the male student’s teachers, coaches, or relevant staff of the male student’s sex offender status. The evidence suggested that the principal did nothing to establish a safety plan and to help the male student avoid students two or more years younger than him.

The male student was allowed to participate in track and ran varsity for the Bethel High School varsity team. The high school and the junior high shared the track field. The male student was described as acting like a coach and mentor to the younger students on both schools’ teams. During practice a mutual friend introduced the targeted student and the aggressor. The very next day he invited her to lunch after school and she skipped track practice with the intention of going to Burger King for lunch, instead the male student took her to his home, under the pretense he had forgotten something, and then he raped the female student.

The female student told a friend and the friend told the school and the girl’s parent. The police were called and the male student was charged with third degree rape and plead guilty to second degree assault.

The trial court dismissed the case on summary judgment and the Supreme Court was addressing the questions: (1) Whether the school district’s responsibility to protect the student ended, and therefore its liability ended, when she left campus? And (2) Whether the alleged negligence, as a matter of law, could be the proximate cause of her injury?

A side note about proximate cause

Since the concept of “proximate cause” is central to the court’s analysis I want to elaborate on the issue for clarity for nonlawyers (the majority also did provided a quality description). This is a legal concept that involves two concepts – cause in fact, and legal cause. Cause in fact means that “but for” the A, B would not have happened. Legal cause is a policy determination about how far the consequences of a defendant’s acts should extend. There can be more than one proximate cause of an injury, and something else by a third party does not necessarily break the causal chain from the original negligence to final injury.

A couple of overly simplistic examples:

Proximate cause does not exist: D is texting and inadvertently lets her foot of the gas and rear ends E at a stop sign. D has a hummer and E has smart car, so there’s some damage, but everyone seems fine. A couple days later, E decides to go to E’s doctor because E has a sore neck that doesn’t seem to be going away. While coming back from the doctor, E is robbed. There is no proximate cause for D for the loss of money E sustained in the robbery because it is not a foreseeable consequence that someone could get robbed on the way back from a medical appointment.

Proximate cause exists: A shoots B and B gets in a car and drive to the hospital, and en route to the hospital gets hit by C and is B delayed in getting to the hospital by 25 minutes. A is still responsible for any injuries related to the gunshot, even if the delay possibly exacerbated the injury, because it is reasonably foreseeable that if you shoot someone, they may have a hard time getting to help. Proximate Cause Stops Existing: B gets fixed at the hospital and two weeks later is at a routine follow-up appointment and slips and falls at the doctor’s office. B breaks their arm in the fall. While on some level it is foreseeable that B would have follow-up care and that some people have accidents, as a policy the slip and fall is disconnected enough from the initial gun shot that as a legal matter we are likely to say that the A is not liable for injury related to slip and fall, even though, but for the initial gun shot, B would likely not have been at the doctor’s office.

Back to the School Discrimination Case

The issues in the school negligence case before the Washington State Supreme Court was about whether or not the fact that the incident occurred in the male students home was enough of another factor as to interrupt the school’s potential liability. In the dissent’s view, the school’s responsibility ended because a school cannot control the behavior of students in their homes. Fortunately that was the dissent and their view, that as a matter of law the school cannot be liable for its negligent acts if the injury occurs of school grounds or not at school activities. Instead the majority held that it was reasonably foreseeable and the school district may be liable for a foreseeable injury that is likely a proximate cause for the injury.

This decision doesn’t mean that a jury will find the school district was negligent. The school district will still have an opportunity to try to demonstrate that it was not essentially their fault that the 14 year old student was raped by an 18 year old student. Although, given that the then Superintendent of Public Instruction (OSPI) said that “the haphazard nature of Bethel’s approach to keeping its students safe from registered sex predators frankly boggles the imagination” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known,'” I don’t think the school district’s chance of success is very high.

This decision does say that a school district’s liability does not end at the schoolhouse doors (to adopt an expression about student rights). I expect that it will be a high threshold for school district liability, but a situation like this, where a school district has two types of knowledge, their own disciplinary history of the aggressor student and the report by the Sheriff’s office of the aggressor student’s sex offender registry status and the requirement not to be around students who were two years younger and that the day after he met this student at track practice he raped her make this a particularly compelling case. Even with the compelling facts, it was a narrow (5:4) decision.

Additional Case Details: 

N.L. v. Bethel Sch. Dist., Docket No. 91775-2, Counsel for Petitioner: Francis Stanley Floyd and John Armen Safarli at Floyd Pflueger & Ringer PS; Counsel for Respondent: Julie Anne Kays and Robert Connelly Jr at Connelly Law Offices.

Amicus briefs were filed by Gerald Moberg for Jerry Morberg & Associates on behalf of the Washington State School Directors Association, Association of Washington School Principals, and Washington Association of School Administrators. 

Amicus brief on Behalf of the Washington State Association for Justice Foundation was filed by Bryan Harnetiaux, Valerie Davis Mcomie, and Daniel Edward Huntingon (the court Supreme Court Information Sheet references a brief, but the brief was not found on Court website with the links to the briefs in the case).

Briefs in the case can be found on the Washington State Courts website under Supreme Court Petitions for Review

Difficulties in Pursuing Bias Claims – Especially when Unrepresented

In April 2016, the Washington State Court of Appeals (Division II), issued an unpublished opinion of a case involving claims of discrimination based on race (African American family) and religion (Muslim family). An unpublished opinion is an opinion that the court believes does not contain facts/law that create a situation where the opinion can be useful in subsequent cases. Until recently, parties could not cite to unpublished decisions, this rule is changing and parties may be able to provide it to a court, but a Court of Appeals may not rely on the case in a subsequent case, meaning an unpublished case does not create case law that must be followed in future cases.

Ahsson And Kari Spry, Appellants V Peninsula School District, Respondent, Docket No. 46782-8; Opinion Author – Melnick; joined by Maxa and Sutton. Attorneys for Appellants – Pro se (no attorney representation). Attorneys for Respondent – Jessie Lee Harris and Marshall Ferguson -Williams Kastner & Gibbs PLLC

Washington Law Against Discrimination 

This case is noteworthy, even though it is not published, because it discusses use of the Washington Law Against Discrimination in filing a claim against a school district. There appears to be no dispute that the WLAD applies to schools as places of accommodation.

The court used the McDonnell Douglas burden shifting framework (McDonnell Douglas is a U.S. Supreme Court case that addressing employment discrimination). The court found that the Sprys carried the initial burden to prove a prima facie case and that they must do more than express an opinion or make conclusory statements. Do this this they must establish, “specific and material facts to support each element of his or her prima facie case.”

The plaintiff must show:

(1) the plaintiff is a member of a protected class;

(2) the defendant’s establishment is a place of public accommodation;

(3) the defendant discriminated against plaintiff by not treating him in a manner comparable to the treatment it provides to persons outside that class; and

(4) the protected class status was a substantial factor causing the discrimination.


The parties, represented themselves, and did not provide examples of how the schools treatment, particularly filing CPS reports and discipline measures against the children, compared to other students.

It was not argued, but as soon as the school new there was a complaint regarding racial discrimination, they had an affirmative duty to investigate and provide a report to the parents under the state nondiscrimation in education law. However, this law was not discussed in the case.

Negligence and Negligent Inflection of Emotional Distress

The Sprys argued that the school was also negligent and its actions resulted in negligent inflection of emotional distress. This also demonstrates a problem with the Sprys representing themselves because they did not brief this issue on appeal and at the trial level they did not respond to the school’s motion for summary judgment that the negligence claim should be dismissed.


This case is likely unpublished because the family did not argue their position in the same way as it could have been argued if they had the resources to hire an attorney to argue the case for them. The litigation system is overwhelming and when people represent themselves, they are required to follow the legal and procedural rules in the same way as attorneys. While courts will often provide pro ses with a little leniency when pro se individuals are clearly attempting to do their best to follow the rules, they have the discretion to decide that a side is not properly pursuing its claim and to continue to allow it to proceed is a waste of judicial resources.


Sexual Orientation and Parenting in Washington State

In Washington State, it has seemed like settled law that sexual orientation and gender identity are not supposed to play a role in parenting decisions. Homosexuality was held as not a valid factor in parenting plan in 1983 in a case called In re Marriage of Cabalquinto, 100 Wn.2d 325, 669 P.2d 886 (1983) and Transgender identity was held to not be a valid factor in parenting plans in In re Marriage of Magnuson, 141 Wash.App. 347, 170 P.3d 65 (2007).


However, any of us who have grown up in a society that is homophobic and transphobic understand that just because things are supposed to be a certain way, does not mean they are that way. A recent Washington State Court of Appeals decision showed us that a trial court will violate the rules and that an appellate court will reverse the most overtly homophobic aspects of a decision, but will leave the bulk of the decision in place, even though the whole case is infused with homophobia and religiously based discrimination against a parent.

In re Marriage of Black, Docket No. 45788-7-II; Opinion Author Sutton; joined by Worsick and Maxa. Attorneys for Appellant(s) Amanda Beane, Kelly Moser, Julie Wilson-McNerney, and Ward . Attorneys for  Respondent Levy, Masters, Lemmel. Amicus – NCLR – Rasnic; WA State Psychological Association -Clinton, Peterson Aand Nickel-Nguy; ACLU – Talner. – Update the Washington State Supreme Court has accepted review of this case.

Basics of Decision: The appellate court held the trial court erred when it restricted the Mom’s conduct and speech about religion and sexuality without making any specific findings of harm to the children, and erred when it allocated Father sole decision-making authority regarding religious upbringing and daycare. But the court found that the trial court did not err when it designated the father as the primary residential parent, allocated sole decision-making authority for education to Father, denied Mother spousal maintenance based on Father’s inability to pay, and required Mother to pay child support.

Basic Facts: Mother and Father married in 1994 and had three children together. They raised their children in a conservative Christian home and sent them to religious-based schools. For the majority of the marriage, Mom did not work outside the home.

Mom came out as a lesbian and began dating another woman in December 2011. In May 2013, Mom filed for divorce, and both parents sought designation as the primary residential parent and sole-decision making authority regarding the children’s education.

The GAL only spoke to two of the three children, and only spoke to those two children for an hour. The children’s therapist said while the divorce was difficult, they were adjusting. When Mom came out to the children, the therapist told mom to hide her relationship. The therapist also told the mom not to talk about sexual orientation or answer the children’s questions outside of therapy.

Mom’s new partner was supporting her financially and the trial court speculated that Mom’s search for full-time employment or enrollment in an educational program would affect her ability to parent full-time.

The trial court did state that Father was clearly the more stable parent in terms of ability to provide for the needs of the children financially, emotionally, and in maintaining their religious upbringing.

The trial court ordered the mother could not introduce the children to her partner until the therapist decided she could (and provided no requirement that the introduction be made by a certain time).

The Decision: The standard on appeal is “abuse of discretion,” meaning that a trial court decision is manifestly unreasonable or based on untenable grounds or untenable reasons. As long as there is substantial evidence to persuade a fair-minded individual of the truth of the matter asserted, the findings of fact are upheld on appeal.

In determining whether the trial court abused its discretion, the appellate court discussed the inability to use sexual orientation as a reason for restriction and noted that the trial court found there was no basis for .191 restrictions (restrictions that exists because a parent’s behavior harms the child(ren)). Without .191 restrictions, the limitations Mother’s parenting regarding introducing to her partner and discussing sexuality or religion constituted an abuse of discretion. Restrictions aren’t allowed to make the transition of divorce easier.

The court found that the restrictions violated Mother’s first amendment rights, especially because it was a blanket prohibition with no findings made by the court of any actual or perceived harm that the children would suffer from the prohibited speech.

The court noted that in prior cases regarding religion and parenting that parent’s have a right of free exercise of religion.

Despite the appellate court acknowledging that trial court had engaged in “blatantly content-based restrictions” regarding religion, homosexuality, or “alternative lifestyle concepts” the appellate court rejected the argument that the trial court improperly considered Mother’s sexual orientation and favored Father’s religion.

The appellate court focused significantly on the idea that there is no  presumption in favor of the primary care giver in determining a parenting plan (citing a case called Kovacs).  Instead the court focused on the emotional needs and development level of the child and the child’s relationship with siblings and with other significant adults, [and] the child’s involvement . . . [in] school, or other significant activates; finding that “because of [the children’s] sheltered upbringing and emotional development, [the father] was best suited to provide for the children financially and emotionally.”

The trial court also weighed the factor of employment schedule in the father’s favor because Mother’s future employment is unknown.

In the end, the appellate court concluded that there was substantial evidence support the trial court’s findings that (i) both parents had strong relationships and bonds with the children, (ii) they had no prior parenting agreements, (iii) both parents have good potential for future parenting functions, but that father had taken on many of the responsibilities since December 2011, (iv) father was the parent most able to provide stability, and emotional and financial support to the children, (v) father was most able to maintain the other strong relationships in the children’s lives, (vi) none of the children stated their preference to the court, and (vii) the father’s employment situation was best suited to provide him the flexibility to parent the children consistently.

Discussion of Judicial Bias

In response to the question of whether the court’s opinion demonstrated judicial bias, the appellate court found that there was no evidence in the record to support the argument that the trial court based its residential placement on the mother’s sexual orientation or preference for the father’s religion and that the judicial ruling alone is not valid evidence of bias. Somehow the court of appeals held that explicitly biased provisions are not evidence that when the trial court was likely making credibility determinations and other forms of fact-finding that it was likely making those determinations with bias.

Essentially, even though the court entered restrictions based solely on sexual orientation (or as the the trial court called it, “alternative lifestyle concepts”) and effectively limited Mother’s time with her children by not allowing her to exercise residential time with her  new partner, the appellate court found the trial court did not act in a biased manner.

This leads to the natural question: Exactly what must a court do to rise to the level of actual bias for the court of appeals? Would the court have to affirmatively say, “I hate gays”? Would it require a GAL report that wasn’t also biased and a court entering restrictions that a GAL report did not include? Would a requirement for supervised visitation without specific findings allow the court to conclude the trial court was biased?

Unfortunately, this case affirms what many LGBTQI people fear, that the court system will be unfair and limit their parenting in ways they would not if they weren’t LGBTQI. Maybe this court will wind it’s way up to our state Supreme Court. As for right now it is what is called an unpublished opinion, meaning that it is not allowed to used by other courts as authority.

The Problem with the Bias Argument 

There is no doubt in my mind, or likely any person who has had someone make comments about something like their stability in connection to their sexual orientation and their ability to parent, that bias plays a role in the decision. The problem is that in order to maintain the important fiction that judges are unbiased, requesting that a case turn on the issue of bias puts courts in the untenable position of saying that their colleagues are biased. The Supreme Court is unlikely to want to open the door for future cases to claim that there is bias by using this case to acknowledge that bias exists within the judiciary.

Beyond that, determining there is judicial bias isn’t required. In a case where the court enters provision based on sexual orientation, the whole order should be void. There was a case, Wicklund, that essentially held as long as the rest of the order had tenable underpinnings that this would not require the entire order to be vacated. But Wicklund occurred in 1996. 1996 was the year DOMA was signed into law. In 1996, Bowers v. Hardwick, was still good law, and that case said it was okay for states to criminalize sodomy. We have seen a sea change occur in our society with regard to homosexuality and as such, Wicklund, to the extent that it doesn’t vacate the entire parenting plan when the judges explicitly states decisions were based on sexual orientation can be upheld, should be overruled.

Requiring that sexual orientation cannot be a factor for any part of the parenting plan will make it so that parties will be discouraged from claiming sexual orientation inevitably harms children (or now that we have marriage equality that a heterosexual relationship post a same-sex relationship inevitably harms the children).

Then we will be pushed to the next issue – how to deal with covert judicial bias. Like the judge who claims a parents transgender identity or sexual orientation plays not role in the case but places restrictions that are similar to a pedophile even though there are no allegations of any physical harm against the child.

Hopefully our State Supreme Court will make it clear that if a parenting plan involves restrictions based on sexual orientation or religion that the parenting plan will be preemptively invalid and it will be sent back down for a new judge just for the sake of the appearance of fairness. If no judge is available (a possible problem in smaller counties), require a change of venue (i.e., require the case to be heard in another county).

U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption

Back in September 2015, I wrote a post about an Alabama Supreme Court invalidating an adoption of a lesbian couple that was issued in Georgia. Today I get to write a post that the U.S. Supreme Court has overturned the Alabama Supreme Court in V.L. v. E.L., 577 U.S. ____ (2016). The court affirmed that adoptions are judgments that must be respected from state to state.

Quick summary of the case. Moms were in a relationship from 1995 to 2011. Biomom gave birth in 2002 to one child and in 2004 to twins. Couple lived in Alabama, but the couldn’t do a second parent adoption in Alabama, so they set up temporary residence in Georgia and the nonbiomom adopted all three children in 2007.

Couple breaks up and biomom withholds the children from nonbiomom. Nonbiomom turns to the court to get visitation and Biomom seeks to dismiss the case. The case goes on for years (break up was in 2011, Alabama Supreme Court decision was issued on 9/18/15) with the court finally concluding that Georgia did not allow the court to enter an adoption order. The court was clear that this was because the couple was not married and that the statute did not allow adoption without invalidating the parent’s rights and since biomom’s rights were not invalidated, Georgia did not have the jurisdiction to enter the adoption order.

The Supreme Court disagreed with Alabama in a Per curiam (meaning a decision by the court as a whole) finding that the Alabama Supreme Court erred in refusing to grant the adoption judgment full faith and credit.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so are confused that parentage issues may now be covered by the Full Faith and Credit. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order. Adoptions are court orders, where all parties are represented and the court makes a judgment.

Other types of court orders are also judgments. For example, there was a recent issue in Texas (see blog post). This was a confirmation of parentage order from California that was upheld applying Full Faith and Credit.

I am an advocate that in Washington, and nationally, especially with states that have Uniform Parentage Acts that affirm that a child born of a marriage is presumed to be the child of the marriage, that same-sex couples should have access to a Confirmation of Parentage. Essentially a court order would make it clear that each parent is an intended parent and that as a parent is entitled to all of the rights and responsibilities of a parent, similar to an adoption without as much expense and invasion (i.e., no need for home studies).

The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive on parent should not be considered somehow more of a “real” parent. This should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple). In fact, I believe that this is something that can and should be able to be done through the Division of Child Support in the same way the state, through the Division of Child Support, establish parentage for opposite-sex couples based on paternity.

The Sad Reality

Even though the U.S. Supreme Court has made it’s decision, there is not necessarily immediate relief for the children and their nonbiomom. They now have to go back to the trial courts and try to work out a parenting plan. Five years passed and it will probably be close to six years before anything is finalized. The kids, born in 2002 and 2007 will be about 15 and ten years old. The twins (the younger children) will have spent more than half their lives with their parents fighting over them. While the U.S. Supreme Court decision is a win for future same-sex couples, and while a win for this family, it brings to mind an expression that “justice delayed is justice denied.” This whole family has lost too much of their lives in this fight.


Conflict of Law & Tribal Jurisdiction

On January 14, 2016, a Washington State Supreme Court decision came down regarding a “conflict of laws” issue. The case involved Washington residents who were in an accident in Idaho. The lawsuit was filed after Idaho’s statute of limitations would have run out, but within the window of time suit could be filed under Washington’s statute of limitations.

I had done a cursory review of the case and saw that the court had unanimously upheld the right to sue in Washington. Washington law is presumed to apply. If there is an a conflict of laws issue arises the court must first determine that there is an actual conflict between the interested states. Then if there is an actual conflict, the court decides which state’s law applies. The court concluded that difference in statute of limitations does not constitute a conflict of laws (i.e., it wasn’t a substantive issue meaning the conduct would not have been considered not to be negligent under Idaho’s laws).

A few hours later, I was driving to a meeting, listening to one of my favorite podcasts, “Amicus” by Slate’s Dahlia Lithwick. The topic was a question of the sovereignty of tribal nations. The question is essentially whether, when a company comes on to tribal land to operate a business and agrees to tribal jurisdiction, can the company then raise a question of the authority of tribal jurisdiction over the company because they are non-Indians? (Note: “Indian” is the technical term. In the legal context, when tribes are recognized by the federal government (another controversial issue), they have certain rights, one of which is the recognition of their sovereignty. This particular case involved the Mississippi Band of Choctaw Indians.)

In this case, there was an alleged sexual assault of a 13-year-old Choctaw boy on Choctaw land by the non-Indian manager of a Dollar General store located on tribal land. A negligent supervision case was filed against the Dollar General store in tribal court and the Dollar General is objecting to the tribal courts ability to exercise authority over it because it is not owned by Indians.

The details about Indian or non-Indian status of the actors within the dispute are important because of the U.S.’s complicated history with the nations we share the land within our political boundaries. Indian tribes are supposed to be sovereign, but there have been several cases that have limited Indian sovereignty. A particularity problematic one is that Indian tribal courts cannot pursue criminal chargers against non-Indians – this authority lies exclusively with the Federal government, which more often than not, does not exercise this authority. It’s unclear what role this does or does not play in the horrific amount of violence, specifically sexual violence, that occurs against Native peoples, but is hard not to believe that the lack of enforcement directly contributes to the staggering rate of sexual violence in Native communities. Check out this video for more info. 

In the case before the U.S. Supreme Court, the Dollar Store wants this same lack of jurisdiction to apply to civil tort cases as well. This would mean that whenever there is a dispute between a tribe or member of the tribe and a nontribal person that disputes would have to go to federal court and could not be handled by the tribe.

I will refer you to the Amicus podcast: Judging Tribal Courts for a much better discussion of the case than I could provide.

What struck me was how this case reminded me of the case I had just skimmed from Washington. We seem to have no problem understanding concepts of competing jurisdictions with regard to states. I simply do not understand why we do not conceptually view tribes a bit like another state, they are their own sovereign but the federal government has some authority (it’s just bizarre and complex in the case of tribes).

Just because you are not a resident of that state, and thus have no voice in their laws, policies, etc., you are still subject to all of their laws. States get to exercise jurisdiction over their own citizens and over actions that occur within their boundaries. As such, the Washington case involving two Washington residents could be heard in Washington. However, suit still could have been filed in Idaho (if filed timely) because the incident occurred in Washington. We have no problem understanding that multiple jurisdictions can have authority over the same incident and individuals. We might create a variety of tests within the concept of jurisdiction when one jurisdiction is a more appropriate jurisdiction (like it’s typically better to hear a case close to where the incident occurred because that’s where the witnesses are and often where at least one party is located). 

Sadly, from the sound of the podcast, it appears that many are predicting the court will rule in a way that will continue to interfer with a tribe’s ability to address the problems of sexual violence that occur on their lands, largely at the hand of U.S. citizens who are non-Indians.

Parentage Establishment and a pending Texas Supreme Court Case

Marriage equality is not parentage equality.

For years, prior to Obergefell, when presenting about issues of family law and LGBTQ identity, I advocated the creation of a process for the adjudication of parentage in Washington State as something married co-parents could do instead of adoption. An adjudication of parentage would be similar to what happens with opposite-sex couples when a state establishes paternity.

States must establish paternity when a mother is receiving a cash grant like TANF and states also provides paternity establishment services to any party that requests it, even if they are not on public benefits.  Typically in these cases, states rely on genetic testing, but they can also rely on the word of the parents.

In a confirmation of parentage action, instead of relying on genetic testing, the state would rely on the presumption of parentage statute. In the past, I have cautioned about the dangers of this approach for same-sex couples because of the concern that if an order stated that the sole source of right to parent was based on the presumption of parentage connected to marriage that other states may try to invalidate the parentage order by arguing that they don’t recognize the underlying marriage.

To back up briefly, in Washington and other states with the Uniform Parentage Act, a child born of a marriage is presumed to be the child of both parents. With Obergefell and the fact that every state must now recognize the marriages of same-sex couples, the concern about the presumption being over-turned because of anti-marriage views is lessened.

I still have some reservations. Not every state has a Uniform Parentage Act. The name is “uniform” is totally deceptive, because even states have UPAs do not necessarily adopt the Act in uniformly. For example, Washington has a gender neutral parentage act, making it clear it applies to same-sex couples.  Nevertheless, to receive federal funding connected to welfare, every state must have some sort of law to get co-parents on the hook for child support, which mean all states are familiar with parentage orders (often referred to as paternity orders).

However, that concern is lessened, especially as Texas has upheld a California Paternity Order between two fathers who used a surrogate. The case is discussed below.

In Berwick, v. Wagner, No. 01–12–00872–CV, Decided September 11, 2014, the appellate court upheld a Judgment of Paternity for the nonbiodad.

<<<UPDATE – On October 23, 2015, the Texas Supreme Court declined to hear the case. This means the decision of the court of appeals stands and the paternity judgment will be recognized by Texas>>>

The basic facts: Couple began dating in 1994; enter into a gestational surrogacy agreement with a married woman in California (Berwicks’ sperm + donated ova in the uterus of the surrogate). A California court entered a Judgment of Paternity before the child’s birth (1) declaring both Berwick and Wagner each to be a “legal parent” of C .B.W., (2) declaring the surrogate and her husband to not be C.B.W.’s legal parents, (3) ordering the hospital to list Berwick in the space provided for father on the original birth certificate, and (4) ordering the hospital to list Wagner in the space provided for mother on the original birth certificate.

Relationship ended in 2008. Nonbiodad filed a two suits, one to recognize the paternity judgment and one under Texas law called a “Suit Affecting the Parent Child Relationship.”  Biodad opposed both actions. He argues that it would be against Texas public policy to recognize the California judgment of paternity.

The basic argument is that biology is king and a child can only have one father. In more detail the argument is, biodad is the only one who has a genetic relationship to the child, that Texas would not ordinarily allow two men to be fathers, and that nonbiodad could not take advantage of the holding out provision because even though he lived in the home for the first two years of the child’s life, he could not “genuinely represent to others that [the child] was his own because of Berwick’s undisputed paternity and Wagner’s confessed knowledge thereof.”

Nonbiodad argues based on the Full Faith and Credit Clause – “it is irrelevant whether his and Berwick’s surrogacy contract would have been enforceable if entered in Texas in the first instance because “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it.”4 E.g., Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 664 (1998) (“[O]ur decisions support no roving ‘public policy exception’ to the full faith and credit due judgments ”).”

Appellate Court’s Decision

The trial court did not err in recognizing nonbiodad as a parent because (1) The trial court correctly recognized that both men had already been adjudicated as parents of the child by the California Judgment of Paternity. and (2) the trial court properly gave full faith and credit to the California judgment.

The court found that biodad’s arguments, “(1) improperly conflates the constitutional principles of full faith and credit with choice-of-law policy considerations, and (2) ignores settled Texas law holding that foreign judgments are entitled to full faith and credit without regard to public policy concerns.”

There was also an issue that is specific to Texas family law, about “managing conservators.” This is not a concept I’m familiar with, but the relevant part is that the court’s rejection of Biodad’s argument for “applying a presumption in favor of a biological “parent” over a parent acquiring “parent” status through other legal channels (be it adoption, presumption, or assisted reproduction.” A legal parent is a legal parent and they are on the same footing, regardless of biology.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so may wonder why this case is a Full Faith and Credit Issue. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order.

An adjudication of parentage or confirmation of parentage that I advocate establishing model forms to create would be a court order. It would have the parents and the child listed as parties. It would make it clear that each parent is an intended parent and entitled to all of the rights and responsibilities of a parent. The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive one parent should not be considered somehow more of a “real” parent. The process of affirming a parent’s legal status as a parent, particularly when they use assisted reproduction, should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple).

The Texas case provides further support that this approach is a viable alternative to adoption. Adoption has simply been the “go to” for so long that it will likely be hard to try something new, but especially in light of marriage equality, our same-sex parents are going to find the idea of having to adopt their child an even harder pill to swallow than it previously was. A order confirming parentage should provide the same protections and instead of requiring a parent to adopt their own child, it says that both parents are and always have been parents and this order is simply making sure that everyone understands that biology doesn’t determine their parentage, they are the full and legal parents.

Washington State Supreme Court – Estate Case

The Washington State Supreme Court released an opinion in an Estate case:

In re Estate of Jepsen, Docket No. 90874-5; Opinion Author – Yu; joined by Madsen, Fairhurse, Wiggns, Gonzalez; Dissent Author – Stephens, joined by Johnson, Owens, and McCloud. Attorney for Petitioners  –  Susan L. Caulkins and Ingrid Linnea Daun Mcleod of Davies Pearson, P.C.; Counsel for Respondent – Robert P. Dickson, Dickson Law Group, P.S.

Basics of Decision: While this case concerned an estate dispute the appellate issue was a procedural issue. The question was whether the there was timely personal service of the will contest petition on the estate’s personal representative. Person service was not served on the personal representative and the State Supreme Court majority found that the case was never fully commenced and should have been dismissed.

Basic Facts: Jespen wrote her will on 7/1/09 and died on 11/16/11. On 12/20/11 her will was admitted to probate and appointed Julie Miles as PR with nonintervention powers. On 3/22/12 Jespsen’s adult son Mack filed a petition to contest the validity of the will. Mack’s attorney e-mailed the petition to the PR’s attorney the same day it was filed. Nothing in the record showed that the PR affirmatively agreed to accept e-mail service on her attorney in lieu of personal service on the PR. On 4/27/12, the PR filed a response denying its substantive allegations but not raising any affirmative defenses (i.e., did not at this time raise the issue of lack of service).

On 10/31/12, the PR filed a motion to dismiss Mack’s petition because it was not personally served within 90 days of filing. The trial court initally granted but then reversed itself on reconsideration holding that service under 11.24.010 went solely to personal jurisdiction and that the objection had been waived. The PR appealed and the Court of Appeals affirmed the trial court and it was appealed to the State Supreme Court.

The Majority

The court identified two issues: (A) Did the Court of Appeals correctly hold that the PR waived any objection to Mack’s failure to comply with RCW 11.24.010? and (b) Is either party entitled to attorney fees and costs on appeal? The court’s simple answer was that RCW 11.24.010 is clear that personal service is required in order to commence a will contest, but to express its disapproval of PR’s delay in raising the issue, the court denied the parties’ request for attorney fees and costs on appeal.

The son’s argument around the plain language of the statute was to argue that personal service was only required to gain personal jurisdiction over the PR and that the PR waived any objection on that basis under CR 12(h)(1) (waiver of a defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service is waived if it is neither made by motion under the rule nor included in a responsive pleading).

The court’s response to this argument is there is a difference between notice of and the commencement of a will contest. Washington Courts have always strictly enforced the requirements for commencing a will contest action and their holding adhering to the language of the RCW requiring personal service in order to commence a will contest action is consistent with the history of strictly enforcing the requirements. The court also adds a footnote 7 that says that the PR’s response was superfluous and that an automatic waiver under CR 12(h)(i) is inconsistent with the plain language of RCW 11.24.010 and so would not have been applied anyway.

The son also made an argument that RCW 11.24.010 would conflict with CONST. art. IV, § 6 and divest the superior courts of their constitutional jurisdiction over “all matters probate.” The majority disagreed with this argument stating that the legislature may prescribe reasonable regulations without divesting the court of its jurisdiction and that RCW 11.24.010 does just that.

The Dissent

The dissent frames the case as a dispute concerning whether the statutory personal service requirement speaks to the superior court’s subject matter jurisdiction over will contest proceedings or to personal jurisdiction over the PR. For the dissent, this distinction is crucial as subject matter jurisdiction can be raised at any time, but personal jurisdiction  can be waived. The dissent feels that the case involves personal jurisdiction and the defense of lack of personal service was waived.

The dissent also acknowledged that there is a significant amount of confusion in the difference of personal jurisdiction and subject matter jurisdiction and that they disagree with the majority in this case regarding what is at issue here (which speaks volumes about how profound this confusion is since it was a 5-4 decision, so the confusion still abounds).


Alabama Invalidated a Georgia Second Parent Adoption

Updates on this case:

On March 7, 2016, the U.S. Supreme Court reversed the Alabama Court holding that Alabama cannot invalidate the Georgia adoption under the Full Faith and Credit Clause. See blog post here for more discussion. 

On 11/16/15 this case was appealed to the U.S. Supreme Court. More about the appeal is available at the NCLR website – link

One thing we know is that marriage equality does not equal parentage equality. We also know that while the world has seen a significant amount of change in hostile treatment of same-sex couples towards more acceptance, same-sex families still face a much greater threat to their security than their opposite-sex peers. This is particularly true when one parent in a same-sex relationship decides to use homophobia as a tool to deny another parent their rights as a parent. A recent case demonstrates how that can be done with a possible harmful impact that may resonate well outside their individual custody battle.

A quick summary of the facts is important to understand how the case is not necessarily applicable in the way that it might seem at the outset of just hearing that an Alabama Court invalidated a Georgia adoption. In In re: E.L. v. V.L., Jefferson Family Court, CS-13-719; Court of Civil Appeals, 2130683, the couple lived in Alabama. They spent just enough time in Georgia to be able to technically establish residency (and possibly not even that much, appellate court decisions are not detailed in the facts and it appears they may not have spent a lot of time in the state, simply leased a space for the required amount of time).

The couple was together for approximately 16 years and E.L. gave birth to three kids (one set of twins) using assisted-reproductive technology in 2002 and 2004. It was undisputed that V.L. acted as a parent to the twins and they couple sought to legally formalize V.L. as a parent and in 2007 they did a second parent adoption in Georgia after doing research and believing it would be granted in Georgia.

Couple breaks up, biomom apparently doesn’t let nonbiomom see the children. Nonbiomom petitions the Jefferson Circuit Court (Alabama) to recognize her constitutional right to parent and register the Georgia adoption judgment and award her some custody or visitation with the children. Biomom moved to dismiss nonbiomom’s case. On April 3, 2014 (three years after the couple separated and the kids would be 10 and 12), nonbio mom was awarded scheduled visitation. A couple weeks later, the court issued an order that all other relief was denied and the case considered closed. Biomom promptly moved the court to alter, amend, or vacate its judgment (denied on procedural grounds). Biomom appealed the decision.

At the appellate level she argued that:

  1. the Jefferson Family Court lacked subject-matter jurisdiction to rule on V.L.’s petition;
  2. the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment;
  3. the Jefferson Family Court should have refused to recognize and to enforce the Georgia judgment for public policy reasons; and
  4. the Jefferson Family Court denied her due process inasmuch as it awarded V.L. visitation rights without holding an evidentiary hearing at which E.L. could be heard.

On February 27, 2015, the Court of Civil Appeals released its opinion rejecting the frist three of the arguments, but holding that the Jefferson Family Court had erred by awarding V.L. visitation without conducting an evidentiary hearing. The judgment was reversed and remanded for the Jefferson Family Court to conduct an evidentiary hearing before deciding the visitation issue.

The Alabama Supreme Court noted that implicit in the court of appeal’s opinion was an implicitly finding in the judgment of the Jefferson Family Court that the Georgia judgment was valid and subject to enforcement in Alabama.

On March 11, 2015, biomom appealed the decision to the extent of the Court of Civil Appeals’ affirmance of the judgment of the Jefferson Family Court to the extent that judgment recognized and enforced the Georgia judgment. The Alabama Supreme Court granted the petition. There were several briefs in the case, including that of GAL, the Academy of Adoption Attorneys, and the Georgia Council of Adoption Lawyers.

The court claimed that in its decision, it was not reviewing the legal merits of the Georgia judgment, because the court is prohibited from making any inquiry into the merits of the Georgia Judgment by the Full Faith and Credit Clause of the Constitution and that the validity of a foreign judgment is supposed to be determined by the state in which it was rendered.

Review is limited to whether the rendering court had jurisdiction to enter the judgment sought to be domesticated – essentially a subject matter jurisdiction issue, which is one of the few grounds upon which a judgment may be challenged after that judgment has become final and any available appellate remedies exhausted.

Biomom argued that the Georgia judgment was unenforceable in Alabama because the Georgia court lacked subject-matter jurisdiction because (1) Georgia does not provide for so-called “second parent adoptions” and (2) that V.L. was not a bona fide resident of Georgia at the time of the adoption. Biomom also argued that even if there was subject matter jurisdiction, the Alabama court should not recognize the order because it would be contrary to Alabama public policy.

The Alabama Supreme Court said the only way that they could not enforce the judgment was to find there was no subject matter jurisdiction. The court rejected the claim that Georgia law prohibits any judicial challenge to an adoption more than six months after the date of entry of the decree. The court discussed subject matter jurisidiction and wavier issues, noting that the equitable defenses of laches and estoppel may prevent a party from complaining of a lack of subject matter jurisdiction in Georgia and agreed that Georgia generally will not accept a subject matter jurisdiction challenge to its adoptions. Nonbio mom’s argument is that it doesn’t apply in second parent adoptions because the adoption statute requires termination of each parent and the Georgia court did not explicitly follow this requirement.

The Alabama Court sites the dissent in a refusal of the Georgia court to hear a motion to vacate a same-sex adoption in Georgia and finds that the Georgia court would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply with  § 19-8-18(b) (termination of the biomom’s rights as a parent).

The Alabama court then reviewed the Georgia law and found that the Georgia law does not allow for a non-spouse to adopt a child without first terminating the parental rights of the current parents. Since biomom’s rights were not terminated, the Georgia court erred in granting the adoption of nonbio mom. The Georgia adoption judgment is void and full faith and credit is not required.

One distinction that was made in this case is the difference between a second parent adoption and a stepparent adoption. A Georgia stepparent adoption would presumably would have been upheld in Alabama, but the court noted their was no question the parties were not married (omitting the reality that they couldn’t marry in most states) and the second parent adoption of a nonspouse was what the court rejected.

Concurrence  – One justice concurred to say that adoption is not a statutory right and there exists no “fundamental right to adopt a child.” Further, the state has a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother. (As far as I can tell, no one joined this justice in this concurrence).

Dissent – The dissent argues that the majority reached the merits of the decision and that is not allowed – that only Georgia could decide if it’s adoption was valid. (As far as I can tell, no one joined the dissent).

Impact of this decision 

This decision could impact any second-parent adoption in Alabama from another state where the non-Alabama statutory language is ambiguous enough as to allow Alabama to interpret it to require the termination of the biological parent’s parental rights. It’s a relatively small subset of people.

However, at the time that I am writing this, according to the National Center for Lesbian Rights, who keeps the best records I’ve found on these issues, only 14 states explicitly allow same-sex couples to second parent adopt. At least, thirteen states, including Georgia and Washington do not prohibit second parent adoptions and they have been performed in some counties. This means anyone from these 13 states, and any place where the statute is not unequivocal in it’s allowance of a second parent or stepparent adoption and the lack of a need to terminate at least one parent’s rights could be invalidated by Alabama (or another state who follows Alabama’s lead).

It is a troubling decision because adoptions have long been believed to be orders that were believed a court would not terminate. Sure there’s the full faith and credit clause and that’s a strong legal argument all by itself, but there is also the best interest of the child. It’s a fairly universal belief that excluding a parent from participating in the life a child is detrimental to the child. Even parents who have done awful things to their children are typically allowed supervised visits with their children.

The over-emphasis on biology makes the concurrence so troubling. The ability to adopt may not be a fundamental right, but once an adoption has occurred a parent is a parent. Adoptive parents are just as much of a parent as a biological parent in the eyes of the law. If the concurrence were to become the law of the land this view of adoption would destabilize all adoptive families, regardless of whether the parents are opposite-sex or same-sex.

Does this mean nonbiological parents shouldn’t adopt? 

No. It is possible this case (or a similar case down the road) could get appealed to the U.S. Supreme Court. Given that Chief Justice Roberts is an adoptive parent, I think he will find this decision repugnant and vote with the “liberal” arm of the court and overturn the decision. Even if this case does not go forward to the U.S. Supreme Court, hopefully it will be an anomaly. Adoptions are intentional acts by both parents. It speaks volumes about the intent of each parent and even if the adoptions isn’t allowed, a nonbioparent could argue in the alternative that they are a de facto or psychological parent (in states that have those doctrines) and the adoption decree could be evidence of the intent of the family to be a family.

This case also makes a distinction between stepparent and second parent adoptions. It is unpleasant to think that a parent who is there in the whole process of assisted reproduction and pregnancy or surrogacy and there in the child’s life is a “stepparent”, but if that is the hook that prevents a state like Alabama from invalidating a parent-child relationship, then so be it.

The Ugly Side of People

There are an unfortunate number of family law cases where one parent goes to great lengths to prevent the other parent from having access to the child(ren). Unfortunately the LGBTQ community is no exception. Even more unfortunate is that in the LGBTQ community biological parents also use homophobia or transphobia to assist in their battle to exclude the other parent. Chiefly the bioparent who now says they aren’t LGBTQ and doesn’t want their child to be around someone who is LGBTQ. (Side note in this case it isn’t clear that biomom made any statements that she was no longer LGBTQ, but given the public policy argument reference in the decision, it seems likely that is the case.)

This case will go down in my memory of one of the worst offenders along with Miller v. Jenkins (a 2006 case with proceedings in Vermont and Virginia where the bio mom used the court system to try and take her child a way from the other parent and when that failed she kdnapped the child and took the child to Central America), and In re L.B. (a 2005 case in Washington that created our de facto parentage doctrine – where a lesbian couple used a known sperm donor and when the couple split biomom married the sperm donor and tried to claim they were an in tact parent and nonbiomom should not be able to have residential time with the child).

This decision would not even exist but for a parent who was in a 16 year relationship with their co-parent trying to stop all legally-required contact with their three kids. While I believe the court should not have decided the case in the way it decided the case. I also believe that biomom should not have made these legal arguments. The trauma and damage that occurs in the lives of these children as a result of this huge legal battle to deny them one of the parents they’ve known their entire lives is tragic and completely unnecessary. This couple went to great lengths and expense to make sure that they were both parents of their children and now one parent is trying to undo all of that at great cost (monetary and emotional) to the whole family.

Obergefell -Same-Sex Marriage Equality Arrives- Short Discussion of Impact

There is so much to say about the Obergefell case. The beauty of Kennedy’s opinion is recognized by many who loved to hear his recognition of the discrimination of same-sex couples and the evolution from outlaws to outcasts, to now being able to participate fully in the institution of marriage.

The legal beauty of the decision requires some bright legal minds who are aware of what is happening in the federal courts of appeals. Kennedy’s opinion mentions “fundamental liberties” approximately 27 times. Also the combination of Windsor and Obergefell make it clear laws regarding at least lesbians and gays (and possibly bisexuals and trans* people) will not be presumed to be valid. This means that despite not discussing the level of scrutiny, it is clear that a heightened level of scrutiny must be applied and this is consistent with how the federal courts of appeal are handling cases.

The dissents are shamefully political and not based in solid legal theory. They set a new low on judicial writing, with Scalia writing “huh” in his opinion. They sound like toddlers throwing a tantrum in a sandbox (or a pundit without any valid credentials getting ready to speak on Fox news).

One of the most offensive aspects of the dissent is Roberts’ comparison to Dred Scott. Justice Roberts’ opinion states that ending the prohibition of marriage to same-sex couples in the states where it remained outlawed is as offensive as a decision stating that enslaved people are property.  It made this comparison in part because Justice Kennedy relied on a legal theory of Substantive Due Process and his sky is falling claim about the impact of the majority of a Supreme Court making decisions.

The dissent forgets that a core principal of constitutional protections is that discrete and insular minorities must be protected against the legislative power of the majority to infringe upon their rights.

Instead the dissent seems to have a focused solely on the post-decision politics of this decision and creating sound-bites and a road map for ways to continue to discriminate against LGBTQ people. I am intentionally not saying same-sex marriages and LGBTQ people, because I think it’s important to be clear that people who cite a religious objection to same-sex marriage have no basis to protesting same-sex marriage in their faith, there is no question that same-sex marriage is not in the bible, the questionable issue is whether the bible says anything about people who engage in same-sex sexual relations. Thus, the question would be whether a business or other entity can discriminate against LGBTQ individuals, which is perfectly legal in many states for business transactions, employment, and housing.

Obergefell Only Ended Marriage Discrimination 

This point on the dissent brings up a couple of things that should be clarified regarding the overall impact of Obergefell.

Marriage Equality does not Equal Parentage Equality

Biology creates a unique issue for many queer couples (note: I am using queer here because the issues are not simply unique to same-sex couples and may apply to couples where one or more partners is trans*). Many state laws recognize that married couples may use a alternative reproduction methods to have children and that when these methods are used the children born are the legal children of both people in the marriage. States very on their laws, even if they adopted a Uniform Parentage Act, the state may not have adopted it in its entirety. Many states do not have a statutory presumptions. This is why the advice of the experts is that same-sex couples should still do a second-parent adoption. 

Adoptions are a known regardless of where a couple may move or if the biological parent relocates with the intention of excluding the intended parent from the life of the child, an adoption will be recognized and enforced throughout the U.S.

California has recently passed a confirmatory adoption statute, which as I understand it, basically allows a presumed parent to easily be adjudicated as a legal parent. It also reduces the obstacles and costs of adoption to parents by eliminating the need to do a home study.

Concerns about Legal Protections for LGBTQ Parents  

Mississippi prohibits adoption of same-sex couples and a lawsuit has recently been filed to challenge this adoption ban. Some states do not have laws that allow for second parent adoption.

Parents that don’t do a second parent adoption may run into obstacles at divorce, especially if there is a biological or adoptive parent that does not want the parent without legal protections to have a relationship wit the child. In Washington, we have a statute that has protections based on the presumption of a child born of marriage being a legal child of both parents, we also have a holding out provision that is similar to the de facto parentage doctrine, both of which allow for a person who was an intended parent by both parents to be determined to be a legal parent. If a couple divorces in Washington, courts should recognize the right of both parents to be in the child’s life and not have their sexual orientation or gender identity held against them. That being said, recently a court in Washington denied a parent’s access to her children based on her sexual orientation (she was in a heterosexual marriage and came-out as a lesbian). That decision is being fought and that judge or commissioner should be sanctioned for acting in a discriminatory manner.

The moral of the story is that Marriage Equality does not equal Parentage Equality. LGBTQ parents still need to think about the protections available for both parents and use the family planning/protection tools to protect the child(ren)’s relationship with the intended parents.


Most States Do Not Have Laws Banning Discrimination Based on LGBTQ status

For many people in the U.S., they could get married on a Saturday and fired on Monday because there are not protections against discrimination in employment. There are also not protections in every state in housing or public services.

In Washington state we have those protections, but recently Arlene Flowers tried to challenge that and say that should be allowed to refuse to provide flowers for a same-sex couple who were getting married. This is a prime example of the poor logic involved because the florist provided flowers for this couple for holidays, birthdays, etc., so they were providing flowers that nurtured a same-sex relationship and a relationship outside of marriage, but suddenly when the couple wanted to get married they wanted to say that their religious beliefs would be violated for providing flowers for this event (it’s unclear if in the future they would have refused to provide flowers for anniversaries given that they had previously sold flowers for anniversaries).

The court rejected the florist’s claim. In Washington we have a nondiscrimination law (passed in 2006, only one year before our first domestic partnership law). This means that to do business in Washington a business must agree not to discriminate against the classes protected in the nondiscrimination law. Thus, the florist couldn’t discriminate. The ultra-conservative sky-is-falling crowd claim that religious institutions are threatened by marriage equality and priests, orthodox rabbis, etc. are going to be required to perform marriages. This is no more true than claiming that the state could require that they allow women to be allowed in religious leadership positions. Religions are allowed to continue to be as discriminatory as they want when they are engaging in religious activities.



Family Law Unpublished Decisions from Division 2 -June 16, 2015

In follow-up to yesterday’s post about Division I unpublished family law cases, here are some updates from Division 2 that came down today.


In Re The Marriage Of Carrasco, Docket No. 45767-9; Opinion Author Worswick; Concurring: Johanson and Melnick; Attorney for Apellant/Cross-Respondent Josephine C Townsend; Attorneys for Respondent/Cross-Appellant Carolyn Marie Drew and Patricia S. Novotny

Basics of decision: Husband appealed the trial court’s decision regarding maintenance (a/k/a spousal support/alimony) and division of property. He argued that the trial court failed to impute income to his ex-wife for purposes of calculating spousal maintenacne and child support, the decision to award “supplemental” maintenance; securing payments via life insurance policy, ordering Husband to pay all expenses for his adult daughter’s eating disorder treatment, and using the trial date to calculate Wife’s share of the Husband’s retirement account. The court rejected Husband’s claims, affirmed the trial court’s decision, and granted Wife Attorney’s fees.

Basic Facts: 19 year marriage, married while Husband was in school, by the time of divorce, Husband was employed earning roughly $16,210 in gross monthly income. Shortly after marriage, Wife quit her job to raise the couple’s first of three children. From 1994 to 2012 the couple lived off of Husband’s student loans, grants, stipends, and financial aid. Couple acquired few assets. Owned one home in Vancouver, Washington.

Court provided for spousal maintenance of $5,500 per month for a total of nine years, a five year base, plus an additional four years to allow Wife the time to Wife to seek higher education. Husband ordered to have life insurance in Wife’s name equivalent to amounts owed for maintenance. Property divided as follows: Half of Husband’s retirement account to each spouse as separate property; house to Husband with half of the equity to Tarantino. (Parenting plan and child support also entered, but do not appear to be in dispute, except for the imputation of income issue).

Husband had also stipulated in trial that he was going to pay for their adult daughters treatments connected to her eating disorder and then sought not to pay it.

On interesting point of the appeal is that Husband sought to assign error to findings of fact, but did not argue the findings lacked substantial evidence so they are considered verities on appeal.

Division II rejected the claim that income needs to be imputed for maintenance, noting that the only limitation on the amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just. Husband failed to carry his burden of showing that the trial court abused its discretion by ordering an unjust maintenance award.

Division II rejected the argument that, for child support purposes, Wife should have been found to be voluntarily unemployed and her income should have been imputed to minimum wage. The trial court made findings that Wife had attempted to rejoin the workforce, that she was volunteering to gain experience, and that she was attempting to learn a new skill (medical billing). Division II said this provided tenable grounds for the trial court’s ruling that Wife was not intentionally unemployed. Thus, the trial court did not err by not imputing income to Wife for purposes of calculating child support.

The trial court awarded Wife maintenance for nine years, compensating wife for the unrealized benefits of Husband’s education. Husband argued that there was no proof that Wife supported him through medical school, so she should not be compensated and that maintenance should be limited to the number or years Wife needs to get an education. Division II rejected this argument noting that where there are unrealized education benefits a trial court must consider four factors (1) the amount of community funds expended for educational costs, the income the community would have earned had the student spouse worked rather than gone to school, (3) the nonstudent spouse’s lost educational or career opportunities given up due to the student spouse’s education, and (4) each spouse’s future earnings prospects. The court noted that the law does not require reimbursement for past separate expenditures but to reimburse the supporting spouse for expected future benefits from the educated spouse’s increased earning potential that had not yet come to fruition at dissolution. Division II also reiterated that there is no rigid formula for awarding maintenance.

Division II also rejected the argument that the trial court abused its discretion in requiring Husband to maintain a life insurance policy to cover maintenance payments to Wife. Husband’s arguments were (1) if he died and wife got a lump sum, she could invest it the money and the resulting interest would create a windfall, and (2) wife wouldn’t owe taxes on life insurance policy but she owes taxes on her monthly spousal maintenance payments, creating a windfall due related to the lack of taxation. The court rejected this stating that there is no requirement that a property division be mathematically precise – it must be just and equitable. Husband failed to show the trial court manifestly abused its discretion or created an unjust and inequitable result.

Division II rejected Husband’s argument that he intended a cap of approximately $20,000 on his daughter’s medical treatment. Division II noted the stipulation was made on the record in open court and that a stipulation made in open court is a binding contract. The trial court found that the parties agreed to Husband paying all expenses related to daughter’s eating disorder. The transcript clearly says “all treatment” without a cap. Division II also notes that Husband’s argument against the agreement is that Wife may some day seek to enforce the agreement in an absurd manner and the court says this claim is not ripe because there is no allegation that she is currently seeking to enforce it in an absurd manner. In the future, the context rule of contracts will permit a court to interpret the stipulation in a reasonable manner consistent with Husbands intent.

Division II rejected the argument that Wife had no right to retirement benefits after the separation – noting again that the court may divide up all property, community or separate, as shall appear just and equitable. The court noted that the characterization of property as community or separate does not control its distribution and a court must consider all relevant factors and has the discretion to dispose of separate and community property so long as it is just and equitable. Husband failed to prove that the trial court manifestly abused its discretion by using the trial date instead of separation date and notes that Husband did not argue that the award was not just or equitable.

Wife filed an affidavit of financial need at least 10 days before oral argument and finding that Wife had a financial need, the court granted her attorney fees on appeal in amount to be determined by the court’s commissioner.

In the Marriage of Allen, Docket No. 31619-0; Opinion Author: Fearing; Concurrence: Brown and Siddoway; Attorney for Appellant: Jeffrey Ray Allen   (Appearing Pro Se); Attorney for Respondent: Catherine Marie Allen   (Appearing Pro Se) and Kacie L Maggard, Yakima County Prosecutor’s Office

Father appealed an order increasing his child support obligation based upon (1) Commissioner should have recused himself because the commissioner previously represented Jeffrey against his former wife; (2) Court erred in denying request for change of venue; and (3) Court denied Father due process when another commissioner changed his child support obligation because he never received information about Mother’s finances. All of the Father’s arguments were rejected and the order modifying Father’s child support order were affirmed.

The Mother was receiving public benefits and the State of Washington moved in Grant County Superior Court, where the order was originally entered for an increase to the Father’s obligation. After divorce, Mother moved to Everett, Snohomish County, and father moved to Tacoma, Pierce County. Father moved to change venue to Snohomish County. Wife requested it remain in Grant County alleging the father was seeking to avoid modification.

The Court ordered a change of venue unless the State objected and the state objected to a change of venue on the ground that transferring venue would delay the motion to increase child support. The Motion to change venue was denied and the hearing was rescheduled. Father sought reconsideration, but mislabeled his motion for reconsideration causing confusion. At this time Father aslo argued the Commissioner should have recused himself since he used to be Father’s attorney. Father’s request for reconsideration was rejected as untimely.

Division III noted that Father’s brief contained no citation to the record and egregiously violated RAP 10.3 and 10.4 and thus, Father’s assigned errors are treated without merit. Division III noted that since Father did not raise the issue of disqualification until after the commissioner denied Father’s motion to change venue and so the issue was waived for assignment of error.

Division III noted that RCW 26.09.280 allows for a child support modification to proceed in the court in which the final order, judgement, or decree was entered, and so it was proper to be filed in Grant County. The Commissioner’s reliance upon the objection of the state and to avoid further delay modifying child support order was a validly articulated reason for the decision not to change venue and thus did not abuse discretion.

Father also made the claim that the state had the responsibility to provide proof of personal service or certificate of mailing. Division III said the Civil Rules allow for proof to be provided by a declaration of service and so Due Process was not denied to Father.

Attorney Fees – a portion of an opening brief must be devoted to fees or expenses under RAP 18.1(b). Argument and citation to authority are required under the rule to advise the court of the appropriate grounds for an award of attorney fees as costs. Both parties failed to devote a section of their briefs to their requests for attorney’s fees, therefor both requests were denied, plus they were pro se so likely incurred no fees.


Family Law Unpublished Decisions from Division 1 -June 15, 2015

There have not been many published family law cases of late. I thought since there were a couple of unpublished decisions, I would mention them, even though they do not seem to offer much in terms of legal interpretations, but sometimes it’s interesting to see what’s happening in other family law cases.

In Re Marriage Of: Halligan,, App., Docket No. 71391-4; Opinion Author: Linda Lau; Concurring; Dwyer and Shindler; Counsel for Appellant John Halligan (Pro Se); Counsel for Respondent Micheal Schein

Brief Facts: Couple married 9/1995 and separated 6/2012. One child born in 2011. Husband gross income ~$13,000; W gross income ~$3,200. Total assets about $564k distributed 60% to Wife and 40% to Husband. For a seventeen year marriage, wife was awarded five years of maintenance at $3,500. There was also a child support award amount, but the amount was unclear (at one point it looked as if the $3,500 may have been maintenance and child support, but I think it was on top of the $3,500 in maintenance).

Issue 1: Retirement Benefits: The parties used Steven Kessler, whom the court described as “an experienced certified public accountant” to calculate the value of their retirement plans. Husband did not challenge the valuation of one of the retirement pensions during the expert’s testimony, but did on his direct testimony. The admission of the report without objection and the lack of questioning the expert on this point were significant factors and the court felt his opinion was largely unchallenged factored heavily into the court’s decisions as there was nothing in the record to indicate that the trial court’s decision to rely on Kessler’s opinion was unreasonable or an abuse of discretion.

Issue 2: Attorney’s Fees: Husband also challenge the award of attorney’s fees to Wife at the trial level. When a party seeks to challenge the attorney’s fees, they must establish that “the court used its discretion in an untenable or manifestly unreasonable manner.” Wife had incurred attorneys fees of $60,621 and the court awarded $18,000 in attorney’s fees. Division 1 declined to overturn the court’s award of attorney’s fees.

Issue 3: Exclusion of Expert Witness: Husband attempted to provide the testimony and report of Neil Bennett, a vocation counselor. He did not disclose it in a timely manner and the court sanctioned Husband by excluding the witness. Here Division I notes that in Husband’s appeal he made factual assertions not supported by the record in violation of RAP 10.3(a)(6). Division I noted that when a trial court imposes a severe sanction, such as witness exclusion, the record must clearly demonstrate that the court considered (1) whether the violation was willful or deliberate; (2) whether the violation substantially prejudiced the opponent’s ability to prepare for trial; and (3) whether a lesser sanction would probably suffice. Division I noted that the trial court considered all three factors on the record and there is no evidence of abuse of discretion in the exclusion of the testimony.

An notes is that the trial court rejected the claim that a continuance automatically extended all discovery deadlines without entry of a new case scheduling order or the court’s approval.

Issue 4: Post-Separation Payments to Fidelity 401(k): The post-separation payments to the 401(k) were connected to a loan from the 401(k) to buy the property. The trial court noted this and found no need to provide credit for payment to a debt assigned under temporary orders. Division I found no abuse of discretion and also noted that mischaracterization of property is not grounds for setting aside the trial court’s property distribution if the division of the property is fair and equitable and that this post-separation payment was not crucial to the court’s decision.

Issue 5: Federal Tax Exemption: Husband made an argument that there was a scrivener’s error in allocating the tax exemption to the Wife instead of alternating, but the record indicates that the tax exemptions were awarded in connection with the amount of child support payments.

issue 6: Verification of Work-Related Daycare Expenses: Husband wanted some sort of proof for work-related daycare expenses, but he failed to provide any meaningful legal argument or citation to relevant authority and the court declined to consider his argument.

Attorney’s Fees on Appeal: Despite an overall tone of the opinion that sounded like there were at least some points the court thought were without merit, the court did not award attorney’s fees on appeal.


In Re The Marriage Of: Robin Maelee Hitz, Res. And Eric James Hitz, App.; Docket No. 71413-9; Opinion Author: Spearman, Concurring: Applewick & Dwyer; Counsel for Appellant: T Reinhard G ‘ron’ Wolff;  Counsel for Respondent: Robin Maelee Hitz   (Appearing Pro Se). 

Husband appeals, claiming that the trial court “lost jurisdiction” (Division I’s quote) ove the case. Division I notes Husband misrepresents relevant facts and that no authority supports is claim that the dissolution became a new proceeding for purposes of the statutory entitlement to a change of a judge when the bankruptcy court lifted a stay and allowed the dissolution to proceed.

Brief Facts: Husband and Wife owned a business together. The judge disclosed a relationship owned by his family and the bank and the parties waived any potential conflict. There was a nine-day trial. The decree assigned Wife the responsibility of liquidating the community assets as paying debts owed. Husband didn’t cooperate and his parents filed a lawsuit against the parties in 2012 claiming an unsecured promissory note (the judge disqualified itself from this case, but noted he thought it had been unnecessary). In April 2012, funds were ordered to be divided between the bank, the parents pursuant to their lawsuit and the parties. Husband filed motions for recusal without noting his motions for hearing. At some point Husband also filed for bankruptcy. After a stay lifted pursuant to the bankruptcy filing, the court denied the motion for recusal, awarded Wife $18,000 in attorney fees and entered a restraining order against Husband. The court also denied Husband’s motion for reconsideration an imposed sanctions against Husband of $5,000 under CR 11.

Division I Discussion: Division I notes that appellant’s brief must contain an argument with legal authority and references to the relevant part of the orders and that Husband’s legal arguments are based on assertions of fact largely unsupported by any reference to the records and that some citations are inaccurate or contradicted by the record.

Recusal – Division I notes that Husband’s argument is factually incorrect as the judge recused himself in a different case and expressly declined to recuse himself in this case. The affidavit of prejudice was also untimely and Husband’s argument that the bankruptcy court granting relief from the automatic stay did not somehow create a new action. It was not a modification, but a continuation of the original issue.

Attorney’s Fees – Husband’s request for attorney’s fees was denied. The court did find that appeal was frivolous, but did not impose additional sanctions. The court did award attorney’s fees for wife.


Nathan Brown, Iii, Appellant V. Mi K. Brown, Respondent, Docket No. 71398-1, Opinion Author: Dwyer; Concurring: Spearmand and Appelwick; Attorney for Appellant: Nathan Brown III   (Appearing Pro Se); Attorney for Respondent: Joseph Orry-leroy Baker  

Father’s petition for a parenting plan modification was dismissed and sanctions were imposed for his failure to comply with the court’s scheduling order. Court affirmed and found his appeal frivolous and awarded fees to Mother.

Basic Facts: Original parenting plan provided three sons reside a majority of time with Mother. Father sought to modify. A superior court commissioner entered orders finding adequate cause for a trial and appointed a GAL. After the GAL filed her report Father filed a motion for a temporary order adopting his proposed parenting plan and “several provisions of the GAL report” and terminating child support based on the age of the oldest child and requesting a change of residence for the other two children. The commissioner denied the request for change in the residential schedule pending trial and stated that no child support adjustment was properly before the court. Over the next couple of months Father did not file pleadings required by the case schedule or the pretrial conference order, including no witness or exhibit list, no financial declaration, and no trial brief. Mother filed a motion to dismiss the petition with prejudice and terms based on Father’s file to comply with the case schedule. The court found there was “absolute noncompliance” with court orders and nothing would suggest mitigating circumstances and awarded terms in the amount of 75% of Mother’s attorney fees.

Division I Discussion: While dismissal is disfavored it is justified when a party willfully and deliberately disregards reasonable court orders, resulting in prejudice to the other party, and impairing the efficient administration of justice under CR 41(b). Disregard of a court order without reasonable excuse or justification is deemed willful.

Division I rejects the following claims by Father:

1 – Commissioner’s temporary order resolved issues making trial unnecessary (new issue on appeal). The temporary order was only temporary pending trial – argument rejected.

2 – The “or” was disjunctive and therefore terms and sanctions should not have been awarded. Plain language is clear that this is not what the statute intends- argument rejected.

3- The trial court erred in placing the sanctions on Father instead of Father’s attorney. Statute is clear sanctions can be on individual or attorney – argument rejected.

4- Mother was not prejudiced and that Mother failed to sufficiently mitigate her prejudice. Mother’s attorney had to prepare and also attempted to follow-up with Father’s attorney to make sure deadlines were met – argument rejected.

5- Father was not sufficiently warned about sanctions (new issues on appeal). Terms are clear under KCLCR 4(g)(4), plus Mother’s attorney had numerous calls, e-mails and letters to Father’s counsel regarding failure to comply with case schedule – argument rejected.

Division I granted Mother’s request for fees on appeal. The court stated that Father’s appeal presented no debatable issues and mother entitled to an award of fees and costs on appeal.

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