Department of Education and Sexual Assault/Harassment

On September 22, 2017, the Department of Education issued new guidance on Title IX. Given that the the person who received the majority of electoral college votes bragged about sexual assault, it is no surprise that the guidance appears to weaken interpretations of Title IX.

Before getting into the Dear Colleague Letter, it’s important to set the stage. When I hear people talk about Title IX and sexual assault in schools there seems to be a considerable amount of confusion about when Title IX comes into play.

Violating Codes of Conduct vs. Violations of Title IX

All schools, colleges, and universities have Codes of Conduct. These Codes of Conduct are supposed to have guidance for how to handle allegations of sexual harassment and sexual assault. They also include a variety of other components, they may include civility requirements, explicit prohibitions on plagiarism, dress codes, and attendance policies. The University of Washington Code of Conduct is captured in the WACs (Washington Administrative Code, the state version of the CFR). A sampling of the items included are: academic misconduct, acts of dishonest, alcohol violations, computer abuses, creating a public nuisance in neighboring communities, discriminatory harassment, harassment or bullying, hazing, indecent exposure, sexual assault, theft, and unauthorized recording. The Burden of Proof in “brief adjudicative proceedings” as well as “Full hearings” is the “Preponderance of evidence standard.”

As long as a school, university, or college has a (working) system where students can file complaints and those complaints are resolved in a timely fashion, Title IX likely will not come into play with regard to individual allegations of sexual assault.

Title IX is a ban on sex discrimination in education. This means that it is attempting to address the systemic issues. Title IX complaints are lodged when a educational institution appears to be failing to address the issues in a way that can lead to a situation where the educational institution knew or should have known that problems existed. (The ACLU-WA has a great guide that goes into more detail.) In an individual setting, a complaint is often filed when a person tries to pursue the educational institution’s complaint process and there are significant hurdles (the educational institution having unclear or contradictory methods of complaining, not providing a method of appeal, etc.) Title IX can also be implicated if there is a hostile environment that the school should have known existed. For example, if a significant number of complaints of sexual assault occur during football recruiting and the school does nothing to address student safety, the school could be liable for a Title IX violation. This means that in addition to many other claims students could file against the university, they could include an allegation of a Title IX violation, which allows for monetary damages. It also means, though in the history of Title IX it has never happened, that the Federal Government could rescind federal funding to the educational institution (the entire educational institution, not just the area where the discrimination occurred).

Understanding the Reason for the Recent Dear Colleague letter 

Sexual assault has long been an area where there is a misguided belief that people make false reports at substantially higher rates than other crimes and therefor anyone who claims a sexual assault happened must be looked at suspiciously. In addition, those accused of sexual assault (especially privileged white young men) should be given extra leniency so as to protect the harm that could befall them from a proper punishment. Proponents with this view point believe that anything involving sexual assault allegations should have to reach the highest burden of proof, the standard used in a criminal trial (beyond a reasonable doubt or as it’s labeled in a civil setting “clear and convincing”) even when not there is no deprivation of life or liberty at stake.

The new Q&A issued in connection with the Dear Colleague Letter rescinding the 2011 Dear Colleague letter is a nod towards heading in the direction of the heightened standard because it revokes the preponderance standard articulated in the 2011 Dear Colleague Letter.

Relevant Comparison of the Dear Colleague Letters 

The 2011 letter stated (Note the Department of Education appears to have removed it from the general summary, but it can be found on the archived site :

Title VII prohibits discrimination on the basis of sex.26 OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

(emphasis added)
Footnotes referenced:

26 See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (noting that under the “conventional rule of civil litigation,” the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex discrimination case) (plurality opinion); id. at 260 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment). The 2001 Guidance noted (on page vi) that “[w]hile Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.” See also Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.”).

 

27 OCR’s Case Processing Manual is available on the Department’s Web site, at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.

 

28 The Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act of 1964. See 34 C.F.R. § 106.71 (“The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference.”). The Title VI regulations apply the Administrative Procedure Act to administrative hearings required prior to termination of Federal financial assistance and require that termination decisions be “supported by and in accordance with the reliable, probative and substantial evidence.” 5 U.S.C. § 556(d). The Supreme Court has interpreted “reliable, probative and substantial evidence” as a direction to use the preponderance standard. See Steadman v. SEC, 450 U.S. 91, 98-102 (1981).

The new regulations state:

The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.19

(Emphasis added).

Referenced footnote:

19 The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases. In a recent decision, a court concluded that a school denied “basic fairness” to a responding party by, among other things, applying a lower standard of evidence only in cases of alleged sexual misconduct. Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (“[T]he lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove—and thus more difficult to defend, both for guilty and innocent students alike. It retained the higher standard for virtually all other forms of student misconduct. The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”). When a school applies special procedures in sexual misconduct cases, it suggests a discriminatory purpose and should be avoided. A postsecondary institution’s annual security report must describe the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking. 34 C.F.R. § 668.46(k)(1)(ii).

Impact of the Dear Colleague letter

This particular Dear Colleague letter will likely have minimal impact. It doesn’t require schools to use a clear and convincing standard. In fact, it requires a consistent standard and educational institutions are unlikely to want to have a “clear and convincing” standard for all the discipline proceedings that come before them.

The real damage with the change in administration of the Department of Education is a regular problem that occurs are the shift of values when there is a Republican president. The President appoints people and outlines priorities that shift away from enforcement of sex discrimination. They do not diligently pursue Title IX complaints, at least not to the same extent as those appointed by Democratic presidents. If they take a Title IX complaint, they are far more likely to pursue a complaint that alleges the educational institution’s practices were unfair to the accused than the vastly greater number of complaints of the unresponsiveness of educational institutions towards targeted students. Knowing that the Office of Civil Rights is likely not going to pursue Title IX complaints often means people are less willing to file them (this is also a trend with the EEOC and sex discrimination claims in the workforce).

It seems odd that ensuring that students are not sexually assaulted is a partisan issue, but for some inexplicable reason Republican administrations actively work to weaken protections against sexual assault, sexual harassment and efforts to overcome sex discrimination as this recent Dear Colleague Letter demonstrates.

More concerning than this particular Dear Colleague letter, which allows educational institutions to use a clear and convincing standard if that’s the standard for all other violations of their codes of conduct, is that the Department of Education is exploring changing the regulations. Nevertheless, the regulations cannot rescind the law, nor can regulations overturn court decisions. While federal enforcement can be weakened administratively and that can have a big impact, Title IX is not going anywhere any time soon.

 

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.

Case

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.
http://assembly.state.ny.us/leg/?default_fld=&bn=A08170&term=2011&Summary=Y&Text=Y

 

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.
http://www.legis.nd.gov/assembly/62-2011/documents/11-8225-02000.pdf

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.
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=935645MAJ

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
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=936455MAJ

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.

Conclusion:

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
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=939071MAJ

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).

 

CONCLUSION
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
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=928169MAJ

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).

Conclusion

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.

Tragic Consequences of Words – Bullying Words Led to Involuntary Manslaughter Conviction

Can mean words create allow a court to hold someone responsible in criminal court for the suicide of another person? According to a recent article by the New York Times on a case in Massachusetts, the answer is yes.

According the article, teenagers in an opposite-sex relationship were dating. The boyfriend had previously had suicidal ideation and friends and family had helped him overcome the feelings. Years later, when he had similar feelings and turned to his girlfriend, she told him to do it. When he got out of a truck he was filling with a lethal gas, she told him to get back in the truck. There were also many other texts, not discussed in detail in the article, but it sounds like they were not supportive.

This case was heard before a judge, not a jury. For the judge, the fact that he got out of the truck and she told him to get back in the truck was  a crucial turning point for her ability to be held criminally responsible.

This is a decision at a trial court level in Massachusetts, which means that it is a case that will require other courts to follow its lead. It does not establish case law (i.e., precedent that courts are required to follow similarly to a statute or written law).

Nevertheless, some cases, in the mere seriousness become part of a cultural identity (i.e., the McDonalds’ coffee burn case) and they influence us. This case could be one of those cases. Words, uttered through technology, miles away from where the suicide occurred were enough to be considered a major factor in why a young man committed suicide.

One of the significant components of this case, from the position of someone who thinks a lot about bullying in schools and how you find ways to address it, is that the girlfriend was struggling significantly with mental health issues. This is consistent with the date from bullying research. Bullies often have greater suicidal ideation than the people they bully.

The issues are rarely ever good guy versus bad guy.  But we use laws to help ensure that we have guidelines to do no harm and for consequences when there is a harm. Technology has altered our lives. Had the boyfriend been alone, without a phone, would he still be alive? Would he, with time to himself and his own thoughts have decided that he wasn’t ready to end his own life? He did get out of the truck.

It would be nice to think that people would not engage in certain behavior because it is harmful. That it wouldn’t matter whether you could “get in trouble” for the behavior, but that you would simply chose not to do things that harm other people. But the reality is, that is not the case. I agree with the parameters the judge applied. The young man got out of his car and she told him to get back in and complete the suicide.

The future is unknown for how we will manage the wild landscape of technology, bad behavior, criminal behavior, and civil liability, but this case and many other laws and pushes for legislation make it clear, that there will be rules that govern the cyber world.

13 Reasons Why is More About Bullying, Slut Shaming, and Rape Culture than Suicide

There is a Neflix show out there called 13 Reasons Why. Some people say this show is about suicide and feel that it is inappropriate (some schools are sending warning letters to parents about it). There are some great pieces about this and I encourage you to read them.

I come to show having survived the completed suicide of one of my best friends and I am publishing these thoughts on what would have been here 39th birthday. The night she killed herself she called me to see if I could hang out, but I was too worried about how I’d do in a law school class to go hang out – and I had no idea she was in so much pain. I would have skipped the bar exam itself if I had known that she was in so much pain. So it is not as if I come to 13 Reasons Why from a place of not knowing how devastating suicide is for those who survive.

The thing is, I don’t think 13 Reasons Why is about suicide. Yes, a girl does commit suicide and the tapes that she made explaining how she got to such a helpless point are the premise of the story, but her actual suicide is not the point of the show. What I think that this show gets so incredibly right, is how tough growing up can be, how kids so often do not talk about what’s impacting them, even to the best parents. I think this show talks honestly about those issues and does so better than anything I’ve seen before.

***Warning Spoiler Alerts***

In this series a young woman who is new to the school. A cute jock asks her out, and she has her first kiss. He takes a picture of her riding down a slide and there I think her skirt goes up and the guy’s “friend” sends the photo all around school, and a rumor starts that she is a slut.

Lesson One: There is a lot of slut shaming in our society and in our high schools. It can have an incredibly negative impact on girls. Also, it’s super scary to think moments that seem innocent or moments that you though were between the two of you can suddenly become wide spread. That’s why we know have laws about “Revenge Porn.”

She finds a few friends, but only a few. Her two closest friends basically ditch her (in part because they start dating each other, in part because they got more popular).

Lesson Two: High school can be achingly lonely. There’s even an app someone created now that is you can sit with us or something, but basically tries to tell people who feel lonely that there is a place where they may be welcome.

Then the geeky photographer at school stalks her, manages to get a picture of her and another friend (who happens to be female and very afraid she may be gay) experimenting with a kiss. This photo also gets widely circulated. While it isn’t completely clear who the girls are, a lot of people suspect she’s one of the girls. As an aside, the “good boy” who is the main narrator of this show flashes back to masturbating to this image – demonstrating a subtle and important point, even “good boys” get pulled into the hurtful drama and take advantage of it. Hannah (the girl who committed suicide) encourages everyone who reads the tape to throw a rock at the guy’s window. Instead the Clay (the “good boy”) takes a photo of this guy changing and shares it with the whole school. This kid, who was already widely unpopular, gets even more bullied and “pantsed” which the counselor at the school apparently doesn’t even understand the terminology, let alone acknowledge how harmful it is. Later, we also see that this kid is stockpiling weapons, with the implication being that he is planning on a school shooting.

Lesson Three: Vigilantism is not a good idea. I think we get some remorse from Clay about the impact that it had on this guy’s life, but I think he still feels perfectly justified in having done this because turnabout should be fair play right? Wrong. What the student did was absolutely wrong. But he’s also a student who is hurting and is widely unpopular and his only way to connect with people seems to be through photography. Vigilantism didn’t change what happened to Hannah and because actions have consequences, as the show is trying to show, what Clay did could end up being a large part of what tipped this kid over. Two wrongs, don’t make a right.

If there could be a true villain to the story, It is Bryce. Bryce is a super wealthy, super popular, super loved athlete. Basically a god at the school. And a serial rapist. He devalues women so much, he thinks of them as property and rapes his best friend’s girlfriend when she’s passed out drunk. Something Hannah witnesses and doesn’t do anything about, so she feels crappy about this. But then her boyfriend lies about what happens. Somehow she is was conscious enough to know something wrong happened, but not what happened and she starts drinking heavily – at school, skipping school, at home, always.

Then Bryce rapes Hannah in a hot tub. When Hannah tries to talk to her counselor about what happened he asks if she said no. As if the word “no” is the only way a person says “no.” Hannah tried to get away, tried to push him off, expressed a lack of consent and then went numb. He was much stronger and had her pinned down. This scene is powerful in that reminds me of how she committed suicide. While she is in the hot tub and he is raping her, we see her wrists being pinned down and scrapped against the side of the hot tub. This is the moment Hannah truly checks out and decides life isn’t worth living. So it’s interesting when she does the act, it is through cutting her wrists in a bathtub.

Lesson Four: Rape culture is a real thing. Jocks (and sometimes U.S. Presidents) think they should be immune from any kind of rape allegation because they are so popular any girl would want to have sex with them. When Clay is recording Bryce, trying to get a confession, there’s a line about how every girl at the high school wanted him. It’s pretty clear that he has likely raped far more than the two young women we know about.

Hannah makes one last ditch effort to try and get help before she kills herself – she turns to her high school guidance counselor. We see enough about his story to know he has a wife with young kids and his home life is likely distracting. While he’s meeting with Hannah his cell phone rings multiple times and this his direct phone line rings. I’m fairly certain if we got into the story there, something was happening at home that distracted him during the meeting with Hannah. But the reality is, Hannah was clearly feeling awful because of a rape he minimized and suggested was just behavior she now regretted. You couldn’t really get more warning signs than Hannah walked in there with and he didn’t do the basic things he should have done to plan for her safety.

Lesson Five: Schools perpetuate rape culture and would rather not rock the boat when a popular athlete is accused by a nobody girl. The school engages in a lot of idolized worship of their athletes and makes it clear they are the stars and the most important people at the school. There is a pretty widespread culture of sexual harassment at school and the school officials are oblivious to it. There’s a scene when Hannah’s mom goes into the bathroom and sees all sorts sexual messages that are also harassing, and the school had no idea. The school also appears to be oblivious to the sexual photos circulating during the school day. Schools are failing at keeping our students safe.

Perhaps one of the hardest things for parents watching 13 Reasons Why is understanding how little young adults confide in parents. Part of it is developmental hormones, lack of language to express what’s going on, being in a place where it seems like they are old enough to handle problems on their own. Not having any idea how their parents would react. But the parents depicted throughout much of this

Lesson Six: Our kids don’t talk about the things that are most upsetting to them. I believe part of the reason is not having the vocabulary. Emotional intelligence is hard. Part of it is also the normal development to adulthood and working on being your own person. Part of it is the fear of how what you say will be received. Will it be minimized? Will it be understood?

Conclusion

This is a show I’d watch with my 12 year old, and any child older than that. I’d use it as a tool to talk about the issues that happen in schools. I’d use it as an opening for difficult conversations. As for the issues of suicide, I’d use it for a reminder that she didn’t tell the people who cared about her most how much pain she was in. Her parents, her crush, they all would have supported her if they had known. We see how tortured the mom is by the fact she didn’t know about the pain her daughter was in and trying to learn and understand that pain. It’s important to turn to and be honest with those who we are closest with. Not to expect them to be able to take away the depression or the pain, but to help us access a network of resources and be a part of our mental health community.

For some great resources around suicide check out the American Foundation for Suicide Prevention: https://afsp.org/

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.

 

 

 

Washington State Rejects Discrimination in the Name of Religion

On February 16, 2016, the Washington State Supreme Court issued its unanimous opinion definitively declaring that Washington State’s nondiscrimination law does not violate religious freedom. The opinion walked through all of the claims by Arlene’s Flowers and eloquently refuted each claim/defense. The decision is best summarized by this paragraph:

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.

I’m going to do this blog a little differently than others, as I suspect this blog will be of greater interest to nonlawyers than many of my other blogs regarding court decisions. I’ll lead with an analysis of the importance of this case and then follow up with the more technical information that attorneys will likely find more interesting.

From the perspective of using the law as a tool for greater social justice, there are two major components of this case. The first is that this case unequivocally supported a state’s rights to provide protections for its residents in public accommodations. This case was seeking to invalidate public accommodations laws that could be argued to conflict with a person’s religion. The problem with that is that religion is often the basis for the most invidious forms of oppression and discrimination. Slavery was said to be god’s plan. Segregation, god’s plan. Women not voting or being allowed access to certain jobs, because of the special role as mothers that god out outlined for them. Criminalization of sexual relationships between nonmarried individuals – god’s law. Criminalization of same-sex sex – god’s law.

The attempt to create a loophole in anti-discrimination laws by arguing that it violated religious expression is incredibly dangerous, because there continue to be people who hold beliefs inconsistent with a society seeking to value all its members. It may start with flowers for a wedding between two men, but it isn’t long before it’s separate lunch counters all over again.

The second, equally important reason for the importance of this case is there is now affirmative case law that says that individuals, as well as the Attorney’s General Office, have standing to sue anyone who violates the Washington Law Against Discrimination, and since a violation of the WLAD is a per se violation of the Consumer Protection Act, it establishes a precedence for suing for violating the CPA. The CPA provision made it clear a person could be sued as a business and in an individual capacity. This ruling will make a letter from the Human Rights Commission or the Attorney’s General Office to a business demanding they cease engaging in discriminatory practices more powerful. It also has the power to make individual complaints more powerful, because individuals also have the right to sue and obtain attorney’s fees for their suits.

This case was also incredibly important because those whose oppose the existence of same-sex relationships use a case like this to create broader policy. Washington is one of about 19 states, including D.C., with protections for the LGBTQ community, and two more have protections for the people who are lesbian, gay, or bisexual. If the proponents of the Arlene’s Flowers case had been successful, they would have had a case that could establish a precedent to invalidate all of the laws protecting the LGBTQ community.

This issue could be appealed to the U.S. Supreme Court. It’s impossible to read the tea leaves of the Supreme Court (but if you’re interested in the best podcast I’m aware of about the Supreme Court, check out Amicus with Dahlia Lithwick produced by Slate and Panoply). Nevertheless, my prediction is that the Supreme Court will not take this case. In 1996, the Supreme Court decided Romer v. Evans, 517 U.S. 620 (1996). This case involved a state law denying local jurisdictions (cities and counties) from passing ordinances to protect LGBTQ individuals. The Supreme Court found that the blanket refusal to allow protections was not rational and violated the Equal Protection Clause. The attempt by anti-LGBTQ advocates to carve out exceptions to anti-discrimination laws is reminiscent of this case. In addition, as far as I know, every attempt to carve out these exemptions has failed, and there simply is no reason for the U.S. Supreme Court to take the case. While the intersection of the First Amendment, religion, conduct-versus-belief and status and conduct are interesting, the cases where people attempt to use religious ideology to allow them to discriminate in secular businesses falls into a category of “settled law.” That means that it has been argued and decisions have been made and society has moved forward, relying on the understandingthat  this issue is settled.

Now for the details that may not be of interest to nonlawyers.

Case

State v. Arlene’s Flowers Inc; Docket No. 91615-2;

Opinion Author – J. McCloud- unanimous decision;

Attorneys for Appellant Arlene’s Flowers – George Ahrend from Ahrend Law Firm, PLLC Kristen Waggoner and Jeremy Tedesco from Alliance Defending Freedom

Attorneys for Respondents (State/Couple): Michael Ramsey Scott, Amit Ranade, Michael Ewart from Hillis Clark Martin & Peterson PS; Margaret Chen and Elizabeth Gill from ACLU-WaA Bob Ferguson, Todd Bowers, Noah Purcell Alan Copsey, Rebecca Glasgow from the Washington State Attorney General’s Office, and Kimberlee Gunning from Columbia Legal Services.

There were a number of Amicus Curia briefs from a variety of different organizations.

 

Basic Facts

  • Robert Ingersoll and Curt Freed are gay men who have been in committed relationship since 2004.
  • Arlene’s Flowers is owned by Barronelle Stutzman.
  • Throughout their relationship, they (particularly Mr. Ingersoll) purchased flowers from Arlene’s Flowers and specifically Ms. Stutzman for birthdays and anniversaries.
  • Stutzman knew Mr. Ingersoll and Mr. Freed were gay and in a committed relationship.
  • After Washington ended marriage discrimination in December 2012, Mr. Ingersoll proposed and he and Mr. Freed began planning their marriage ceremony.
  • Ingersoll went to Arlene’s Flowers and Ms. Stutzman to order flowers for the ceremony.
  • Stutzman refused to sell flowers for their wedding because of her “relationship with Jesus Christ.” Ms. Stutzman formed a policy that because of her religious belief that marriage should be between a man and a woman, there would be a store-wide policy prohibiting the sale of flowers for same-sex marriage or commitment ceremonies.
  • Arlene’s Flowers is a for profit business with no religious purpose or affiliation.
  • Instead of a large wedding with over a hundred people, they ended up having a small wedding with only 11 people and one flower arrangement.

Procedural Facts

  • This case involves the consolidation of two cases: one filed by the State of Washington and one filed by Mr. Ingersoll and Mr. Freed. The claims in this case were that Arlene’s Flowers violated the Washington Law Against Discrimination and the Consumer Protection Act.
  • The trial court granted the injunctive relief and held that anything that Arlene’s Flowers sells must be sold equally, and she cannot deny services based on sexual orientation. The trial court rejected the attempt by Arlene’s Flowers to claim that providing flowers was an undue burden on her religious expression, as it essentially compelled her to provide support for same-sex marriages.
  • The case was appealed directly to the Washington State Supreme Court.
  • On November 15, 2016, the Washington State Supreme Court heard oral argument.

 

Relevant Statutes:

Washington Law Against Discrimination – prohibition on discrimination in the realm of public accommodations:

(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of … sexual orientation ….

RCW 49.60.215. The protected class status of “sexual orientation” was added to this provision in 2006. LAws OF 2006, ch. 4, § 13.

RCW 49.60.030(2) authorizes private plaintiffs to bring suit for violations of

the WLAD. To make out a prima facie case under the WLAD for discrimination in

the public accommodations context, the plaintiff must establish four elements: (1)

that the plaintiff is a member of a protected class, RCW 49.60.030(1); (2) that the

defendant is a place of public accommodation, RCW 49.60.215; (3) that the

defendant discriminated against the plaintiff, whether directly or indirectly, id.; and

( 4) that the discrimination occurred “because of’ the plaintiffs status or, in other

words, that the protected status was a substantial factor causing the discrimination,

RCW 49.60.030. 

 The WLAD provides that an act of public accommodation discrimination is an “unfair practice” and a per se violation of the CPA. RCW 49.60.030(3).

 Consumer Protection Act

Because an act public discrimination is a per se violation of the Consumer Protection Act, the question before the court was whether Ms. Stutzman could be personally liable under the CPA. As the Supreme Court noted, the CPA authorizes the attorney general to bring an action against “against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful,” RCW 19.86.080(1), and defines “person” to include “where applicable, natural persons,” as well as corporate entities, RCW 19.86.010(1).

 

Relevant Portions of the U.S. and Washington State Constitutions

First Amendment to the U.S. Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

Article I, section 11 of the Washington State Constitution (the part the Court described as relevant):

Absolute freedom of conscience in all matters of religious sentiment, belief, and worship shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.

 

The court discussed speech and conduct that is expressive enough to be protected as speech and determined that there was nothing inherently expressive in flower arrangements and that without significant further context, no one would understand the flowers to say anything.

 

The court also noted that the WLAD is a neutral, generally applicable law that was not created for the purpose of infringing upon or restricting practices because of their religious motivation. As such, it only had to meet a rational basis. Nevertheless, the court also concluded that assuming, without deciding, that even applying strict scrutiny to the WLAD, the WLAD satisfies the standard.

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.

LGBTQ Rights Going Forward – Possible Impact of a Trump Presidency

During this campaign cycle, we saw the backlash to broad spectrum of efforts to obtain full equality. While Obama was not perfect, under his administration, movements of the people flourished. Immigrant communities organized, raised awareness, and applied pressure achieving at least a few minor gains, like the DREAM Act. Black Lives Matter flourished. While the president was not as forceful as I would have liked, he did defend the movement and under his leadership investigations occurred into police accountability/abuse and reports were issued that have the power to create some systemic change. He raised awareness of about the abuse of our system of incarceration and took steps available on the federal level.

The LGBTQ movement was also able to thrive under Obama. He appointed several members of our LGBTQ community into key leadership positions. Questions about fair housing, included questions about whether LGBTQ people were discriminated against. He also took a position that the ban on marriage discrimination was wrong. When the Supreme Court finally remedied the long standing practice of denying marriage to same-sex couples, the Obama administration went to work on finding all of the places where the federal government was involved and removing any barriers to equality.

It is hard to believe sometimes that Lawrence v. Texas was decided in 2003. How on earth was it only about 13 years ago that some states still outlawed homosexual conduct (i.e., sodomy)?  When the barriers finally began to fall, full equality felt like it came at a rapid pace. This is why, despite all the growth we have had, in many ways the changing administration doesn’t change the longstanding advice for the LGBTQ community.

The people dedicated to these issues have issued FAQs and information. Lambda Legal has Post-Election Facts – Covering marriage (unlikely to see much change), trans youth, conversion therapy, hospital visitation, HIV and concerns about the repeal of Obamacare and hate crimes. NCLR has several blogs, Shannon Minter, their super smart legal director has this to say about the unlikely outcome of repealing marriage. The NCLR is also one of the best resources out there to understand state-by-state differences. The Transgender Law Center issued this Statement on the election.

In addition to these thoughts, I will add, no president, congress, or court has ever simply given the LGBTQ people rights. It has been a hard fought battle, that was based in some incredible activism changing hearts and minds.

It also doesn’t hurt our cause that LGBTQ people are everywhere. Race, religion, ethnicity, and many other identities find people still segregated, largely due to historic discrimination issues, but also because sometimes it is easier to live in communities where you see yourself, you know you are less likely to be targeted for harassment and violence, you know when you go to the store they will have beauty products for your hair, or a grocery store that will meet your kosher needs. This segregation doesn’t occur in the same way for the LGBTQ people, while as grown-ups we may seek out gayborhoods, we are raised Muslim, Evangelical, atheist, Jewish and every other religion. We are Black, Asian, Latinx, Native American/First Nations/Indigenous, White and every other race and combination of race and/or ethnicity. We come from conservative families to progressive to anarchistic families. It is simply impossible to shield yourself from loving someone, a son, daughter, auntie, uncle, parent, who may come out as LGBTQ and the more accepting world expanded the safety area for people to come out. It is impossible to exist in any identity without also having LGBTQ people as a part of that identity.

However, this change is recent. We have not lived in a post-Obergefell (Supreme Court case affirming the dignity of same-sex marriages and holding discriminating against same-sex people in marriage liscenses violated our constitution) world long enough to have let our guard down. Attorneys advising same-sex clients were still saying, get your documents and don’t delay.

What kind of documents should you get?

Transgender people should make sure their identity documents match their gender identity (to the extent possible as they predominately exist in the male/female binary). One place to turn for information on this available at the Transgender Law Center Identity Document Resources– it’s California focused, but it does have information about federal changes. Looking at the California info may also help you figure out how to look for the same in your own state.

Protect your relationship to your children. If you have read any other blogs I have written or seem me present, you have heard me say marriage equality does not equal parentage equalityGet a court order affirming parents are parents. This can be done a couple of ways. Many people are most comfortable with adoptions. There is case law to support that court orders adjudicating parentage will be given full faith and credit, this is essentially an order of parentage, similar to what has been historically called paternity. In Washington State, our law regarding determining parentage is gender neutral (Uniform Parentage Act / UPA, which despite its name is not uniform and many states haven’t adopted it, or they tweak it. Washington tweaked our UPA to be clear it included same-sex couples).

If you haven’t done this, and your family is splitting up, you can make sure that your parenting plan has a finding that you are the legal parents. Parenting plans have extra security under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA – and unlike the UPA it actually is uniform). There is also something called the Hague convention and signatory countries (countries who have agreed to follow the Hague rules) will also help with the enforcement of parenting plans). There are some concerns with something like this and possible rights and benefits that could flow to your child upon your death, so you should definitely explore other possibilities.

All LGBTQ couples should have estate planning documents – which a way of making you sound wealthy, but really means that you should have a power of attorney, medical directives, a will. These kind of documents are fairly easy to obtain. The reason for having them is mainly to have an additional weapon against discriminatory individuals at important times. These are also the kinds of documents people absolutely needed when there was no marriage. It was the only way that same-sex couples could link themselves in the eyes of the state.

Pay Attention – More Advice Will Come Out Once Trump is in Office with a Republican Congress

There is so much more we will learn in the coming months and years. The hateful rhetoric connected to this election has all of us justifiably nervous. The thing that helps keep me from panicking is remember that our government was set up to thwart major sweeping changes. It took a long time to get where we are and it will not be unwound easily.

Perhaps it means as states that are happy with having the marriage issue decided can try to clean up their statutes that banned marriage and explicitly say that same-sex marriage is allowed in their state (this would mean absent an amendment to our constitution marriages would still have state protection). While states are at it, they should make their laws regarding parentage and have two things clear (1) that families can affirm their parentage if they meet the terms of the UPA (which is basically that you consented to assisted reproduction while married or that you have lived with the child since birth for several years and held the child out as your own) and that the provision apply on a gender neutral basis, i.e., biology is not the only factor in determining parentage.

Also, be sure to reach out when you experience discrimination. The national organizations like Lambda Legal, NCLR, Transgender Law Center, and the Southern Poverty Law Center, need to know what’s happening in people’s lives to respond to it. Also, let your state organizations know. In Washington, groups like Legal Voice and the ACLU have been spearheading many efforts. Our Attorney General created a Civil Rights Division. The QLaw Foundation has a legal clinic that provides free legal advice on civil question (i.e., non-criminal).  Gender Justice League has resources on health insurance issues (among many other things). Ingersoll Gender Center has support groups, resources, and information about providers. There are also many other groups that focus on intersectionality: Entre Hermanos, Trikone NW, NQAPIA, and many more.

I’ll keep trying to update about what’s happening in Washington as several interesting cases concerning LGBTQ people are before our state Supreme Court this week.

Parting thought: Please take care of yourself, legally, socially, and emotionally.

U.S. Dept of Edu Fines Penn State re: Sexual Misconduct Incidents

The U.S. Department of Education issued a press release on November 3, 2016 that they have fined Penn State University $2.4 million for failure to comply with the Clery Act. As a point of reference,according to the report in 2014-2015, Penn State received $566,403,413 in federal dollars through the a variety of loan, grant, and work study programs, so the fine, while being an important statement, it is less than 1% of the entire federal funding for one school year (and the abuse occurred from 1998 to 2011).

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act is a federal consumer protection statute that provides students, parents, employees, prospective students and employees, and the public with important information about public safety issues on college campuses. Essentially it is an act that requires schools to report the most serious crimes against people or property so that students looking into attending a school and see how safe the school is.

The penalty covers 11 serious findings of Clery Act noncompliance related to the University’s handling of Sandusky’s crimes and the university’s longstanding failure to comply with federal requirements on campus safety and substance abuse.

The findings from the press release are:

Findings:

  • Finding #1:  Clery Act violations related to the Sandusky matter (proposed fine: $27,500).
  • Finding #2:  Lack of administrative capability as a result of the University’s substantial failures to comply with the Clery Act and the Drug-Free Schools and Communities Act throughout the review period, including insufficient training, support, and resources to ensure compliance (proposed fine: $27,500).
  • Finding #3:  Omitted and/or inadequate annual security report and annual fire safety report policy statements (proposed fine: $37,500).
  • Finding #4:  Failure to issue timely warnings in accordance with federal regulations.
  • Finding #5:  Failure to properly classify reported incidents and disclose crime statistics from 2008-2011 (proposed fine: $2,167,500).
  • Finding #6:  Failure to establish an adequate system for collecting crime statistics from all required sources (proposed fine: $27,500).
  • Finding #7:  Failure to maintain an accurate and complete daily crime log.
  • Finding #8:  Reporting discrepancies in crime statistics published in the annual security report and those reported to the department’s campus crime statistics database (proposed fine: $27,500).
  • Finding #9:   Failure to publish and distribute an annual security report in accordance with federal regulations (proposed fine: $27,500).
  • Finding #10: Failure to notify prospective students and employees of the availability of the annual security report and annual fire safety report (proposed fine: $27,500).
  • Finding #11: Failure to comply with the Drug-Free Schools and Communities Act (proposed fine: $27,500).

A complete report can be found here. According to the report, the charges against Sandusky included more than 50 felonies, including multiple counts of involuntary deviate sexual intercourse, aggravated indecent assault, and unlawful contact with minors as well as as charges for corruption of a minor and endangering the welfare of a minor. The report also noted, that two other people were charged, Timothy Curley and Gary Schultz for failing to to report allegations against Sandusky to law enforcement and CPS and perjury before the Grand Jury.

Another interesting pull-out from the report:

Data compiled by the University’s Office of Student Conduct showed that during the 2002 – 2003 academic year student-athletes represented 1.6% of the student body but were responsible for 5.16% of conduct code violations. The figures were similar in 20032004 where athletes were 1.5% of the student body but committed 3.05% of all violations. In 2004-2005, athletes were 1.82% of the student body and counted for 3.51% of all charges. Of particular concern, in 2003- 2004, student-athletes were charged with 9.38% of all physical assaults while only accounting for 1.5% of the student body and 17.78% of all such violations in 2004-2005 when they only represented 1.82% of all students. Athletes were also cited for sexual assault at a higher rate than the general population accounting for 50% of sexual assault charges in 2002-2003 and 20% of those offenses in 2004-2005. A similar pattern was observed for charges of disorderly conduct and alcohol-related offenses during this period. In most years through 2010-2011, the football team also had the most drug and alcohol citations of any Penn State sports program. 6

The report goes on and provides a detailed review of the culture and issues at Penn State and details on each Clery Act violation.

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.

Case

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.

Conclusion

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.

 

Title IX Covers Transgender Students and Access to Bathrooms

May 13, 2016 marked an important day for Title IX, as the U.S. Department of Justice Civil Rights Division issued a Dear Colleague Letter regarding the application of the ban on sex discrimination in schools and what schools need to do to ensure that they do not discriminate based on gender identity. The letter notes this is not a change to the law, but simply significant guidance to “inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.”

The Dear Colleague Letter states:

Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.

The letter is a great resources for schools struggling with how to respect transgender or gender queer students. It provides terminology definitions and advice on how to create a safe and nondiscriminatory environment.

It also addresses the biggest issue that schools have with understanding how to create a nondiscriminatory environment for transgender and gender queer students: sex-segregated facilities. Below is exactly what the Dear Colleague Letter says:

Sex-Segregated Activities and Facilities Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students. Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.18

Single-Sex Classes. Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances. When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity.

Single-Sex Schools. Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges.20 Those schools are therefore permitted under Title IX to set their own ex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses.

Social Fraternities and Sororities. Title IX does not apply to the membership practices of social fraternities and sororities. Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.

Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single occupancy accommodations if it so chooses.

Other Sex-Specific Activities and Rules. Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).

 

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.

 

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