United States v. 2008-09-23 | 06-35948 | MOORE VKING COUNTY FIRE PRO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KERRY MOORE; KELLIE MOORE, and No. 06-35948
the marital community thereof, D.C. No.
Plaintiffs-Appellants, CV-05-00442-JLR
v. Western District of
Washington, SeattleKING COUNTY FIRE PROTECTION
 DISTRICT NO. 26; JAMES D. ORDER
POLHAMUS; DAVID LAWRENCE; CERTIFYING
JERRY HARRIS; GARY BOLLINGER, QUESTION TO
Defendants-Appellees. THE
WASHINGTON
SUPREME COURT

Filed September 24, 2008
Before: Kim McLane Wardlaw, Richard R. Clifton and
N. Randy Smith, Circuit Judges.
COUNSEL
Gretchen Graham Salazar (argued), Bruce Winchell, Kasey D.
Huebner, Mills Meyers Swartling, Seattle, Washington, for
the appellants.
Michael A. Patterson (argued), Sarah S. Mack, Patterson
Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, Wash-
ington, for the appellees.
E. Christina Beusch (argued), Linda A. Dalton, Assistant
Attorneys General, Olympia, Washington, for the intervenor,
Washington State Human Rights Commission.
13565

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ORDER
This employment discrimination case presents a question of
Washington state constitutional law. Kerry Moore, a fire-
fighter in Washington State, was discharged for dereliction of
duty after taking extended periods of time off from work to
seek treatment for his chronic kidney disease. Moore brought
suit in federal court raising state and federal employment dis-
crimination claims against the Fire District as well as a num-
ber of individual defendants. The district court granted the
defendants’ motion for summary judgment on Moore’s claims
pursuant to 42 U.S.C. § 1983. The remaining state law claims
proceeded to trial. The jury found that Moore was not dis-
abled under the state law disability discrimination statute.
After trial but before this appeal, the Washington Legislature
broadened the definition of “disability” in the relevant state
statute, the Washington Law Against Discrimination
(“WLAD”), and indicated that the amendment would apply
retroactively.
On appeal we are asked to decide whether retroactive appli-
cation of the 2007 legislation violates the separation of pow-
ers doctrine under the Washington Constitution. Given the
important state constitutional question presented here, we cer-
tify the question to the Washington Supreme Court.
I
The state law issue1 that we face arises out of Moore’s
claim that the defendants violated the WLAD, which prohibits
employment discrimination on the basis of, among other
things, a person’s disability. McClarty v. Totem Electric, 137
P.3d 844, 847 (Wash. 2006). Prior to 2006, the Washington
1This certification order addresses only Moore’s state law claim. We
defer submission on both Moore’s state law and federal law claims pend-
ing a decision by the Washington Supreme Court regarding the certified
question presented here.
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State Human Rights Commission defined “disability” as any
“sensory, mental, or physical” condition that causes an indi-
vidual to be discriminated against. Id. at 848. In 2006 the
Washington Supreme Court, in McClarty, declined to accept
that definition and instead adopted a narrower definition of
“disability.” Under McClarty a plaintiff bringing suit under
the WLAD had to show that he has “(1) a physical or mental
impairment that substantially limits one or more of his major
life activities, (2) a record of such an impairment, or (3) [that
he was] regarded as having such an impairment.” Id. at 851.
At Moore’s trial the district court instructed the jury on the
state law claim based on the McClarty definition of “disabili-
ty.”
In 2007, in direct response to McClarty, the Washington
Legislature passed Substitute Senate Bill 5340. The legisla-
tion adopted the Human Rights Commission’s definition of
“disability” as “the presence of a sensory, mental, or physical
impairment . . . whether it is temporary or permanent, com-
mon or uncommon, mitigated or unmitigated, or whether or
not it limits the ability to work generally or work at a particu-
lar job or whether or not it limits any other activity . . . .”
RCW § 49.60.040(25)(a). The Legislature explicitly made the
amendment retroactive and applicable to all causes of action
“occurring before July 6, 2006,” the date McClarty was filed.
It is undisputed that Moore’s cause of action occurred prior to
July 6, 2006. Therefore, Moore argues that he is entitled to a
new trial on his WLAD claim so that a jury can evaluate
whether he was disabled under the 2007 definition of the term
“disability.” The defendants argue that the retroactive applica-
tion of the 2007 amendments violates the state constitution’s
separation of powers doctrine.
Although the Washington Legislature may enact retroactive
legislation, the Washington Supreme Court has recognized
limitations to that general rule: “[a]ny attempt by the Legisla-
ture to contravene retroactively this Court’s construction of a
statute” could violate the state constitutional doctrine of sepa-
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ration of powers by “effectively . . . giving license to the
[L]egislature to overrule [the Supreme] Court.” Magula v.
Benton Franklin Title Co., 930 P.2d 307, 313 (Wash. 1997)
(citations and internal quotation marks omitted). While the
Washington Supreme Court has rejected separation of powers
challenges to retroactive legislation, it has implicitly contin-
ued to recognize, at least in theory, that such a limit to the leg-
islature’s power exists. See, e.g., Barstad v. Stewart Title
Guaranty Co., 39 P.3d 984 (Wash. 2002) (en banc); Tomlin-
son v. Clarke, 825 P.2d 706, 713 (Wash. 1992) (en banc).
Thus we are asked to decide a question of Washington con-
stitutional law: whether the retroactive application of the 2007
amendment to the WLAD violates the state constitutional
doctrine of separation of powers. We certify this question to
the Washington Supreme Court because the answer is disposi-
tive of Moore’s state law claim, the state law is unclear, and
principles of federalism militate in favor of certification. See
RCW § 2.60.020.
First, the answer to the question is “necessary to . . . dis-
pose of” Moore’s state law claim.”2 Id. During both the pre-
trial motions and the trial itself one of the major issues was
whether Moore was disabled under the state definition. The
jury concluded that Moore was not disabled under the nar-
rower McClarty definition. Moore’s chronic kidney disease
arguably fits under the broader 2007 definition of “disability”
2Moore argues that we are compelled to apply the state statute retroac-
tively regardless of whether the state court would do so. See Vandenbark
v. Owens-Illinois Glass Co., 311 U.S. 538, 541 (1941); Nelson v. Bruns-
wick Corp., 503 F.2d 376, 381 (9th Cir. 1974). We reject that argument
because the highly unusual circumstances here—the state legislature’s
attempt to reverse a state supreme court decision—take this case out of the
ordinary rule that state court rules of decision apply retroactively in fed-
eral court. See Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866
(8th Cir. 1966). In light of the constitutional challenge, it would be impru-
dent, under principles of comity and federalism, to apply the state statute
retroactively if the state court would not do the same.
13568 MOORE v. KING COUNTY FIRE PROTECTION DIST.

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because the pain may have limited his ability to work and per-
form other activities. See RCW § 49.60.040(25)(a). Thus, if
the amendment applies retroactively without offending the
state constitution, Moore may be entitled to a new trial.
Second, the state law is unsettled. See RCW § 2.60.020.
There are arguably conflicting state court of appeals decisions
regarding the separation of powers doctrine and retroactive
legislation. Compare Marine Power & Equip. Co. v. Wash.
State Human Rights Comm’n, 694 P.2d 697 (Wash. App.
1985) (rejecting a separation of powers challenge to an
amendment that provided a remedy that the courts had not
previously recognized), with In re Personal Restraint of Stew-
art, 75 P.3d 521 (Wash. App. 2003) (concluding that the leg-
islation passed was in direct contravention of a state court
decision and therefore violated the separation of powers doc-
trine). Federal district court decisions that have addressed this
question in the context of the 2007 WLAD amendment have
reached different conclusions. Compare Delaplaine v. United
Airlines, Inc., 518 F.Supp.2d 1275 (W.D. Wash. 2007) (con-
cluding that the 2007 amendment to the WLAD is constitu-
tional and applies retroactively), and Breeden v. Kaiser
Aluminum & Chem. Corp., No. C05-363LRS, 2007 WL
1461290 (E.D. Wash. May 16, 2007) (same), with Varga v.
Stanwood-Camano Sch. Dist., No. C06-178MJP, 2007 WL
2193740 (W.D. Wash. July 27, 2007) (concluding that the
retroactive application of the 2007 WLAD amendment vio-
lates the state separation of powers doctrine).
Other considerations also weigh in favor of certification.
The parties have informed us that a similar challenge to the
retroactive application of the WLAD is currently pending
review by the Washington Supreme Court in Hale v. Wellpinit
Sch. Dist. #49, No. 80771-0. Judicial economy favors allow-
ing the state court the option of considering these cases
together. Finally, the question presented is an important one
of state constitutional law that implicates the balance of
power in the Washington state government. Principles of fed-
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eralism and comity militate in favor of allowing the state to
dictate which branch of government has the power to decide
its own law.
II
In light of the foregoing discussion, and because the answer
to this question is “necessary to ascertain the local law of this
state in order to dispose” of the issues on appeal, RCW
§ 2.60.020, we respectfully certify to the Washington
Supreme Court the following question:
Whether the separation of powers doctrine under
the Washington Constitution prohibits the retroactive
application of the 2007 legislation providing a defi-
nition of “disability” for the Washington Law
Against Discrimination where the cause of action
arose prior to the Washington Supreme Court’s deci-
sion in McClarty v. Totem Electric, 137 P.3d 844
(Wash. 2006)?
We do not intend our framing of the question to restrict the
Washington Supreme Court’s consideration of the issue. The
Washington Supreme Court, in its discretion, may choose to
reformulate the question presented. Broad v. Mannesman
Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir. 1999).
If the Washington Supreme Court accepts review of the
certified question, we designate appellees, the District and the
individual defendants, as the parties challenging the applica-
tion of the 2007 legislation, to file the first brief pursuant to
Washington Rule of Appellate Procedure 16.16 (e)(1).
The Clerk of Court is hereby ordered to transmit forthwith
to the Washington Supreme Court, under official seal of the
United States Court of Appeals for the Ninth Circuit, a copy
of this order and all briefs and excerpts of record. RCW
§§ 2.60.010, 2.60.030; Wash. R. App. P. 16.16.
13570 MOORE v. KING COUNTY FIRE PROTECTION DIST.

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Further proceedings in our court on all of Moore’s claims
on appeal are stayed pending the Washington Supreme
Court’s decision on whether it will accept review, and if so,
receipt of the answer to the certified question. The case is
withdrawn from submission until further order from this
court. The panel will resume control and jurisdiction over the
appeal when either the Washington Supreme Court answers
the certified question or declines to answer the question.
When the Washington Supreme Court decides whether to
accept the certified question, the parties shall file a joint
report informing this court of the decision. If the Washington
Supreme Court accepts the certified question, the parties shall
file a joint status report informing this court when the Wash-
ington Supreme Court issues its answer.
It is so ORDERED.
________________________________
Chief Judge Alex Kozinski
13571 MOORE v. KING COUNTY FIRE PROTECTION DIST.

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