The opinion
FILED
NOVEMBER 17, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ZAIRE WEBB, an unmarried individual, ) No. 37051-8-III
)
Appellant, )
)
v. )
)
WASHINGTON STATE UNIVERSITY, ) OPINION PUBLISHED
MICHAEL C. LEACH, ANDREW LEHR, ) IN PART
KAREN FISCHER, and KELLY )
MYOTT-BAKER, all in their individual )
capacities only, )
)
Respondents. )
LAWRENCE-BERREY, J. — Washington State University (WSU) cancelled Zaire
Webb’s four-year athletic scholarship after its football coach dismissed Webb from the
team for shoplifting. Webb appealed to WSU’s Athletic Award Appeal Committee
(Appeal Committee/Committee). The Appeal Committee upheld WSU’s decision to
cancel Webb’s scholarship.
Webb brought suit and asserted several claims, including a 42 U.S.C. § 1983 claim
against the Appeal Committee, which he contends violated his right to procedural due
process. The trial court dismissed Webb’s suit on summary judgment. With respect to
Webb’s § 1983 claim, the court determined the Appeal Committee violated Webb’s right
to procedural due process. It further determined the Committee was not entitled to
No. 37051-8-III
Webb v. WSU
qualified immunity but was entitled to quasi-judicial immunity.
In the published portion of this case, we determine the Appeal Committee violated
Webb’s right to procedural due process and is not entitled to quasi-judicial immunity or
qualified immunity. In the unpublished portion of this case, we determine Webb’s
remaining claims were properly dismissed. We, therefore, reverse the trial court’s
dismissal of Webb’s 42 U.S.C. § 1983 claim, but otherwise affirm.
FACTS
WSU’s head football coach Michael Leach recruited Zaire Webb to play on the
school’s team. WSU offered Webb full financial aid for the spring 2017 semester and for
the following four academic years. Webb accepted WSU’s offer and enrolled.
The financial aid agreement provided:
This assistance may be reduced or cancelled . . . if the recipient:
....
(e) Violates a nonathletically related condition outlined in the
financial aid agreement or violates a documented institutional
rule or policy (e.g., academics policies or standards, athletics
department or team rules or policies)
Clerk’s Papers (CP) at 321 (emphasis added).
The athletic department and team rules required all players to attend classes, attend
weekly meetings with their academic advisors, and maintain open and honest lines of
communication with their academic advisors, coaches, and professors. The team rules
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also required all players to maintain high standards of integrity and behavior that reflected
well on coaches, teammates, the department of athletics and the university. Additionally,
Coach Leach had four core rules: (1) do not steal, (2) do not use drugs, (3) do not hit
women, and (4) do not do anything to hurt the team. He told his players if they violated
any of these rules, they would be dismissed from the team.
The WSU Student-Athlete Handbook (Handbook) imposed additional standards
and had a section on disciplinary process. That section read, in part:
In the case of behavioral problems which involve formal criminal charges
by a law enforcement agency, the involved student-athlete will be placed on
suspension by the department of athletics until the facts of the incident are
reviewed.
DISCIPLINARY PROCESS
....
Absent extraordinary circumstances as determined by [the] director of
athletics and sport supervisor, misdemeanor charges and subsequent
discipline, therefore will be handled by the head coach, after review by the
director of athletics and sport supervisor. Further, these individuals will
consider the circumstances, as well as the past deportment of the involved
student-athlete in rendering a final decision.
CP at 359.
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Webb’s Lack of Effort
As a football player on the WSU team, Webb was required to do strength and
physical conditioning. Tyson Brown, the assistant strength and conditioning coach,
frequently interacted with Webb. He believed Webb did not comply with training
requirements, was dismissive toward the coaching staff, and consistently lacked effort.
Brown shared these concerns with Coach Leach.
Webb’s Diluted Urine Sample
On October 3, 2017, Webb was told to come to the athletic trainer’s office after he
finished his 7:00 a.m. workout. He did not arrive until around 10:34 a.m. A trainer
reminded Webb about WSU’s drug testing policy, showed Webb an acknowledgement
form he had earlier signed, and asked Webb to provide a urine sample. The test results,
returned days later, were invalid because the sample was diluted. A person must drink an
extraordinary amount of water to produce a diluted sample.
The Shoplifting Incident
Late on October 4, 2017, Officer Aaron Breshears of the Pullman Police
Department e-mailed Chief of Police Gary Jenkins that he had arrested two WSU football
players—Zaire Webb and Anthony White. According to the e-mail, the two players had
shoplifted several items from Walmart, including home drug testing kits. The next
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No. 37051-8-III
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morning, Chief Jenkins read the e-mail and reviewed Officer Breshears’s initial arrest
report. Chief Jenkins, in accordance with department policy, notified Antonio Huffman,
Director of Football Operations, of the arrests. Chief Jenkins told Huffman one of his
officers had arrested Webb and White the night before for shoplifting several items at
Walmart, including drug testing kits.
Later that morning, Huffman saw Webb and asked what happened at Walmart the
night before. Webb acted like he had no idea what Huffman was talking about. Huffman
then told Coach Leach what he had heard from Chief Jenkins, including that some of the
shoplifted items included drug testing kits. Coach Leach promptly dismissed Webb from
the WSU football team.
Athletic Award Appeal Hearing
On October 9, 2017, WSU’s Student Financial Services (Financial Services) sent
Webb notice that his athletic financial aid would be cancelled, effective January 1, 2018.
The notice informed Webb he could request a written appeal or a formal appeal hearing.
Webb requested a formal appeal hearing and used the form provided to him. On the
form, Webb wrote he was wrongly arrested for theft, the charge was being dismissed, and
he wanted a hearing to present new evidence.
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The notice of cancelation briefly explained the appeal process:1 The appeal form
would be directed to the Chair of the Athletic Award Appeal Committee (Chair) and the
coach or athletic representative would submit a written statement to the Committee with a
copy to the appealing party. The Appeal Committee would then notify the parties of the
time and place of the appeal hearing, where “[e]ach side w[ould] present their
information to the appeals committee.” CP at 495.2 Also, the appealing party was
required to notify Financial Services if they intended to appear with counsel. And after
the hearing, the Chair would promptly issue a written decision.
In response to Webb’s appeal, Coach Leach sent a letter to the Appeal Committee
explaining why he dismissed Webb from the team. The pertinent part of the letter
explained:
Zaire Webb was dismissed from the Washington State University football
team on October 5th for violation of team policy. His removal from the
team was a culmination of events, which ended with his arrest on the
suspicion of stealing from Walmart along with a teammate in early October.
Our team rules are repeated regularly within the football program and there
is no uncertainty where we stand in regard to upholding them. It is our
consistent policy to dismiss any member of our football team that violates
1
Webb never received an initial hearing where he could explain he did not
shoplift. The appeal hearing actually was Webb’s initial hearing.
2
This phrase is ambiguous in that it may or may not allow witnesses to be called.
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any of the following: (1) do not do drugs, (2) do not steal, (3) do not hit a
woman, and (4) do not do anything to hurt the team.
In the months leading up to his dismissal, Zaire was involved in a series of
events that called to question his commitment to the football program, as
well as came into direct conflict with our team rules.
CP at 507. Webb received a copy of this letter.
The Appeal Committee was comprised of Kelly Myott-Baker, Assistant Director
of Undergraduate Admissions; Andrew Lehr, Senior Financial Aid Advisor; and Karen
Fischer, Associate Dean of Students. The Committee scheduled Webb’s hearing for
November 1, 2017.
The hearing was not recorded. Webb spoke to the Committee for about one-half
hour. He explained the circumstances of his shoplifting arrest and maintained his
innocence.3 When questioned by the Committee, he denied he had any issues with
academics, coaches, or trainers. He also told the Committee of instances where other
players violated team rules but were not dismissed from the team. Once Webb finished
speaking and answering the Committee’s questions, the Committee directed him to leave.
3
The hearing was not recorded, so we can only infer what Webb told the Appeal
Committee. The record reflects that White passed the items near the scanning area while
Webb watched, but most items were not detected by the scanner. We infer that Webb told
the Committee he thought the items were properly scanned.
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During the next one-half hour, the Appeal Committee heard from three athletic
department representatives, including Antonio Huffman, Director of Football Operations.
Huffman confirmed that Coach Leach had a team rule that a player who steals will be
dismissed from the team. He explained that Pullman police told him that Webb was
arrested for stealing merchandise from Walmart, which resulted in his dismissal from the
team. Once the athletic department representatives finished speaking and answering
questions, the Appeal Committee directed them to leave.
The Appeal Committee conferred and unanimously concluded that Coach Leach
was justified in dismissing Webb from the football team and that cancelation of Webb’s
scholarship also was justified. The Committee did not believe Webb’s claim that he was
innocent.
The same day of the hearing, Financial Services informed Webb of the Appeal
Committee’s decision:
This letter is to inform you that the Athletic Award Appeals Committee has
reviewed your appeal request for nonrenewal of your athletic scholarship.
After careful thought and deliberation, the committee has denied your
appeal and finds that the athletic department acted within the rules and
regulations of canceling your student aid.[4]
4
More correctly, the athletic department dismissed Webb from the team. This
resulted in WSU canceling Webb’s athletic scholarship.
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CP at 517. The Chair never provided Webb with a written decision.
Procedural History
Webb brought suit against WSU, Coach Leach, and the three Appeal Committee
members. He alleged four causes of action. As argued, these causes of action were:
(1) a 42 U.S.C. § 1983 claim against the Appeal Committee members5 for violating
Webb’s right to procedural due process, (2) a breach of contract claim against WSU,
premised on statements contained in the Handbook, (3) a tortious interference with
contract claim against Coach Leach, and (4) a negligence claim against all of the
respondents, based on the process used that led to the denial of Webb’s appeal.
After discovery, the respondents filed a summary judgment motion.6 Webb
produced evidence that four football players under Coach Leach, on separate occasions,
had been arrested and charged with crimes that violated the core rules, yet none were
dismissed from the team.7
5
Even though the members were sued individually, we have and will continue to
refer to them collectively as “the Appeals Committee,” or “the Committee.”
6
Respondents submitted greater detail about Webb’s arrest and other team rule
violations to the trial court. We omit these details because there is no evidence they were
brought to the attention of the Appeal Committee.
7
Webb submitted a November 22, 2017 letter from WSU’s Office of School
Conduct and a December 22, 2017 WSU news clipping. We similarly omit these details
because they were not brought to the attention of the Appeal Committee.
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The trial court granted the respondents’ summary judgment motion. With respect
to Webb’s § 1983 claim, the court determined the Appeal Committee had violated
Webb’s right to procedural due process, was not entitled to qualified immunity, but was
entitled to quasi-judicial immunity.
Webb appealed. The Appeal Committee cross appealed the trial court’s
determination that it violated Webb’s right to procedural due process and was not entitled
to qualified immunity.
ANALYSIS
The standards for reviewing summary judgment orders are well established. We
review a summary judgment order de novo, engaging in the same inquiry as the trial
court. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014). Summary
judgment is appropriate only if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” CR 56(c). “A material fact is one upon which the outcome of the litigation
depends in whole or in part.” Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume
Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We view all facts and reasonable
inferences in the light most favorable to the nonmoving party. SentinelC3, 181 Wn.2d at
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140. Summary judgment is appropriate only if reasonable persons could reach but one
conclusion from all the evidence. Id.
42 U.S.C. § 1983
Webb contends the trial court erred by dismissing his 42 U.S.C. § 1983 claim on
the basis that the Appeal Committee was entitled to quasi-judicial immunity. The Appeal
Committee contends the trial court erred by determining it violated Webb’s right to
procedural due process, a component of Webb’s § 1983 claim, and erred again by
determining it was not entitled to qualified immunity.
42 U.S.C. § 1983, otherwise known as the Civil Rights Act, “provides a federal
cause of action for the deprivation of constitutional rights.” Durland v. San Juan County,
182 Wn.2d 55, 70, 340 P.3d 191 (2014). It has long been settled that government actors
cannot deprive citizens of property interests without procedural due process. Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
“To prevail in a § 1983 action alleging deprivation of procedural due process, a plaintiff
must prove that the conduct complained of deprived the plaintiff of a cognizable property
interest without due process.” Durland, 182 Wn.2d at 70.
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Procedural Due Process
“‘A procedural due process claim has two distinct elements: (1) a deprivation of a
constitutionally protected liberty or property interest, and (2) a denial of adequate
procedural protections.’” Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir.
2017) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982
(9th Cir. 1998)). Property interests are not created by the Constitution, instead “they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law.” Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). A property interest arises
only where there is a legitimate claim of entitlement, not merely an abstract need or desire
for the particular benefit. Id.
Webb had a legitimate claim of entitlement to his multi-year athletic scholarship.
The scholarship was not subject to discretionary renewal, but instead provided, “If you
enroll you will receive this assistance for four academic years . . . [but it] may be reduced
or cancelled . . . if [you] . . . [v]iolate[ ] a . . . documented institutional rule or policy.”
CP at 321 (emphasis added). The Appeal Committee properly concedes that Webb had a
protected property interest in his scholarship. See Resp’ts’ Br. at 37.
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“[O]nce a court determines that a protected interest has been taken, ‘the question
remains what process is due.’” Brewster, 149 F.3d at 983 (quoting Morrissey v. Brewer,
408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)).
Webb suggests the process due is defined by the Administrative Procedure Act
(APA), chapter 34.05 RCW. In Arishi v. Washington State University, 196 Wn. App.
878, 385 P.3d 251 (2016), we held that WSU must comply with the full adjudicative
process described in the APA before expelling a student for serious criminal misconduct.
Webb may well be correct that WSU was required to comply with the APA before
canceling his scholarship. But we need not answer this question of state law. This is
because the question of whether the Appeal Committee violated federal due process is a
question of federal law. Loudermill, 470 U.S. at 541. Federal due process does not
necessarily entitle a plaintiff to the same procedures provided by state law. Roybal, 871
F.3d at 933.
“The core of due process is the right to notice and a meaningful opportunity to be
heard.” LaChance v. Erickson, 522 U.S. 262, 266, 118 S. Ct. 753, 139 L. Ed. 2d 695
(1998). Some sort of hearing is required. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.
Ct. 893, 47 L. Ed. 2d 18 (1976); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S. Ct.
2963, 41 L. Ed. 2d 935 (1974). Other than notice and a meaningful opportunity to be
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heard, “‘due process,’ unlike some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.” Mathews, 424 U.S. at 334 (internal
quotation marks omitted) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81
S. Ct. 1743, 6 L. Ed. 2d 1230 (1961)); see also Wilkinson v. Austin, 545 U.S. 209, 224,
125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005). “‘[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.’” Mathews, 424 U.S. at 334
(quoting Morrissey, 408 U.S. at 481).
In Mathews, the United States Supreme Court established a framework for
evaluating the constitutional sufficiency of procedures. The Court created three factors to
consider:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews, 424 U.S. at 335.
The first Mathews factor directs us to consider the private interest affected by the
governmental action. Here, Webb lost three and one-half years of his athletic scholarship
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because he was dismissed from the football team.8 The financial loss to Webb was
substantial. For many people, the cancelation of a scholarship results in their inability to
obtain a college education. There is no evidence Webb qualified for other forms of
financial aid.
The second Mathews factor directs us to consider the risk of an erroneous decision
with the current procedures and the probative value of Webb’s proposed additional
procedures. The Appeal Committee’s procedures were lacking in several ways. Most
notably, Webb was not permitted to hear or respond to adverse witnesses and perhaps was
not even entitled to call his own witnesses. Also, the hearing was not recorded, and the
Committee was comprised of three WSU officers who were asked to review the decision
of an influential WSU coach. Further, the Appeal Committee did not render a written
decision, and Financial Services informed Webb the decision was not appealable. The
process afforded Webb had many flaws that posed a substantial risk of an erroneous
decision. Webb’s proposed procedures would require the Committee to allow Webb to
hear and respond to adverse witnesses, issue a written decision with basic findings and
8
The financial aid agreement explains that a full athletic scholarship covers
“course related textbooks, tuition, mandatory fees, room & board, transportation, and
miscellaneous living expenses.” CP at 321.
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conclusions, record the hearing, and allow an appeal. These procedures are probative of
truth finding and promote consistent, well-reasoned decisions.
The third Mathews factor requires us to consider the fiscal and administrative
burdens the additional or substitute procedures would entail. There is little burden
involved in permitting a party to hear and respond to adverse witnesses and issuing a
written decision with basic findings of fact and conclusions of how those facts warrant or
do not warrant relief. There is some fiscal or administrative burden for recording a
hearing and providing an appeal.
When weighing the three Mathews factors, we conclude the process used by the
Appeal Committee violated Webb’s constitutional right to procedural due process. Our
conclusion should surprise no one.
In Conard v. University of Washington, 62 Wn. App. 664, 814 P.2d 1242 (1991),
rev’d on other grounds, 119 Wn.2d 519, 834 P.2d 17 (1992), we performed a truncated
due process analysis of what procedures were required before a public school could
cancel a student’s scholarship for misconduct. We concluded that a student has a right to
(1) receive a written copy of any information on which the nonrenewal recommendation
is based, (2) present and rebut evidence, (3) have the hearing conducted by an objective
decision maker, (4) be represented by counsel, (5) have a record made of the hearing for
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review purposes, and (6) receive a written decision from the hearing board setting forth
its determination of contested facts and the basis for its decision. Conard, 62 Wn. App.
at 671-72.
On review, the Supreme Court reversed on the ground that the students did not
have a legitimate claim of entitlement to the renewal of their scholarships. Conard, 119
Wn.2d at 530-31. There, the scholarships were renewable at the discretion of the
financial aid committee. Id. at 530. Although the Supreme Court reversed our
determination that the students had a protected property interest in the renewal of their
scholarships, it expressly agreed with the remainder of our opinion when it concluded,
“The Court of Appeals’ decision is affirmed in all other respects.” Id. at 538.
We agree with the trial court that the Appeal Committee violated Webb’s
constitutional right to procedural due process. We now turn to whether the Committee is
entitled to either quasi-judicial immunity or qualified immunity.
a. Quasi-Judicial Immunity
Webb argues the trial court erred when it determined that quasi-judicial immunity
insulated the Appeal Committee from liability for violating his right to procedural due
process. We agree.
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Both parties discuss two cases, Lutheran Day Care v. Snohomish County, 119
Wn.2d 91, 99, 829 P.2d 746 (1992) and Taggart v. State, 118 Wn.2d 195, 822 P.2d 243
(1992). Those cases are helpful, but do not set forth the applicable standards. Both cases
involve the application of quasi-judicial immunity to state law causes of action. Webb’s
§ 1983 claim is a federal cause of action. A state law defense cannot defeat a federal
cause of action. Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 375, 110 S. Ct. 2430, 110
L. Ed. 2d 332 (1990). We, therefore, must determine the contours of quasi-judicial
immunity under federal law.
Defendants acting in a quasi-judicial capacity have absolute immunity from
lawsuits, including § 1983 claims. Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970).
For this reason, federal authorities often refer to the defense as absolute quasi-judicial
immunity.
Several characteristics of the judicial process are helpful in determining whether
absolute quasi-judicial immunity applies, including:
(a) the need to assure that the individual can perform his functions without
harassment or intimidation; (b) the presence of safeguards that reduce the
need for private damages actions as a means of controlling unconstitutional
conduct; (c) insulation from political influence; (d) the importance of
precedent; (e) the adversary nature of the process; and (f) the correctability
of error on appeal.
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Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985) (citing
Butz v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)). The list
is nonexhaustive, and “an official need not satisfy every factor to be entitled to absolute
quasi-judicial immunity.” Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008). Instead,
we consider whether an official’s role is “‘functionally comparable’” to that of a judge.
Id. (quoting Butz, 438 U.S. at 513).
Cleavinger v. Saxner
In Cleavinger, the United States Supreme Court declined to extend absolute quasi-
judicial immunity to members of a prison disciplinary committee. 474 U.S. at 206. After
evaluating the Butz factors, the Court concluded the committee members did not perform
a “classic adjudicatory function.” Id. at 203. The Court emphasized the committee
members were not independent; they were prison employees tasked with making
credibility determinations between coworkers and inmates. Id. at 203-04. They were
“under obvious pressure to resolve a disciplinary dispute in favor of the institution and
their fellow employee.” Id. at 204. Moreover, the hearings lacked several procedural
safeguards: prisoners could not compel or cross-examine witnesses, conduct discovery, or
challenge hearsay evidence. Id. at 206. Also, there was no cognizable burden of proof,
and prisoners were not afforded a verbatim transcript. Id. “In sum, the [committee]
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members had no identification with the judicial process of the kind and depth that has
occasioned absolute immunity.” Id.
Committee members argued the proceedings contained ample safeguards: inmates
had prior notice, representation by staff members, the right to be present and offer
evidence, a “detailed record,” and the availability of administrative and judicial review.
Id. They further argued committee members were usually persons of modest means who
would be deterred from service without absolute immunity. Id. at 203.
The Court was unconvinced and determined that qualified immunity provided
sufficient protection. Id. at 206. Although “less-than-absolute protection is not of small
consequence,” the Court observed, “[a]ll the committee members need to do is to follow
the clear and simple constitutional requirements . . . they then should have no reason to
fear substantial harassment and liability.” Id. at 206-07 (citation omitted). “‘[I]t is not
unfair to hold liable the official who knows or should know he is acting outside the law,
and . . . insisting on an awareness of clearly established constitutional limits will not
unduly interfere with the exercise of official judgment.’” Id. at 207 (alterations in
original) (quoting Butz, 438 U.S. at 506-07).
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Application of Cleavinger principles
The procedural deficiencies here are at least comparable, and likely greater, than
those in Cleavinger. In Cleavinger, the committee members were asked to resolve
disputes between their coworkers and noncoworkers of less prominence accused of
misconduct. Here, the Appeal Committee members were asked to resolve a dispute
between an influential coworker and someone of less prominence accused of misconduct.
We are unaware of any court that has extended quasi-judicial immunity in a similar
situation.
Webb was afforded safeguards that the Cleavinger Court deemed insufficient. In
both cases, the person accused of misconduct received prior notice of the charges,
although the notice Webb received was somewhat vague. Both had an opportunity to
present evidence, although it is unclear whether Webb was entitled to call witnesses.
But Webb was denied safeguards that were available even in Cleavinger. Webb’s
hearing was not recorded, and he was not permitted to hear and respond to adverse
witnesses. Also, Webb was not provided a written decision explaining the Committee’s
findings and how those findings led to its conclusion, nor was he permitted to appeal the
decision.
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We recognize that knowledgeable individuals may be discouraged from serving
important governmental functions if they are subject to civil liability. See Buckles v. King
County, 191 F.3d 1127, 1136 (9th Cir. 1999). Indeed, nonjudicial actors often adjudicate
contentious disputes and withholding absolute immunity permits a losing party to sue for
damages rather than seek appellate review. Id. While this argument supports absolute
immunity in some cases, we are unpersuaded by it here where so few safeguards existed
to reduce the risk of an erroneous decision. Cleavinger denied absolute immunity to
committee members whose neutrality could be questioned and whose procedures lacked
many safeguards. We, thus, deny absolute immunity here to Committee members whose
neutrality could be questioned and whose procedures lacked even more safeguards.
Absolute immunity from civil damages under § 1983 is not an expansive doctrine; it is
“[of a] rare and exceptional character.” Cleavinger, 474 U.S. at 202; see also Burns v.
Reed, 500 U.S. 478, 495, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991). As the Cleavinger
Court observed, qualified immunity provides sufficient protection for decision makers
who follow clear and simple constitutional requirements. 474 U.S. at 206-07.
We conclude that quasi-judicial immunity should not be extended here and reverse
that portion of the trial court’s order.
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b. Qualified Immunity
The Appeal Committee argues the trial court erred when it determined the
Committee was not entitled to qualified immunity. We disagree.
Qualified immunity generally shields government officials performing
discretionary functions from suit so long as their conduct does not violate clearly
established statutory or constitutional rights of which reasonable persons would have
known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982). It is intended to protect government officials “from undue interference with their
duties and from potentially disabling threats of liability.” Id. at 806.
When a defendant moves for summary judgment on a § 1983 claim and raises
qualified immunity, the court has two questions before it. The first question is whether
the facts asserted by the plaintiff make out a violation of a constitutional right. Pearson v.
Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). We have already
answered this question in Webb’s favor.
The second question is whether the right was clearly established at the time of the
violation. Id.; Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001). This requires the plaintiff to demonstrate that “at the time of the challenged
conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official
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would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd,
563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (alterations in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523
(1987)). As mentioned previously, we established the contours of this federal right nearly
30 years ago in Conard v. University of Washington, 62 Wn. App. 664. There, we
explained what processes a public school must afford when reviewing a challenged
cancelation of substantial financial aid.
Here, the processes the Appeal Committee afforded Webb fell far short of the
processes described in Conard. First, Webb was not permitted to hear and rebut evidence
against him. Second, there was no record made of the hearing for review purposes or
even a right of appeal. Third, the Appeal Committee did not provide Webb a written
decision that set forth its determination of contested facts and the basis for its decision.
For these reasons, we conclude the Appeal Committee is not entitled to qualified
immunity.
Reversed in part.
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No. 37051-8-III
Webb v. WSU
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
BREACH OF CONTRACT
Webb contends the trial court erred by dismissing his breach of contract claim. He
claims WSU’s Handbook was incorporated by reference into his financial aid agreement,
and WSU breached it by not following the discipline processes therein.
To establish a claim for breach of contract, a plaintiff must show a valid agreement
existed between the parties that imposed a duty, the duty was breached, and the breach
proximately caused damage. Univ. of Wash. v. Gov’t Emps. Ins. Co., 200 Wn. App. 455,
467, 404 P.3d 559 (2017); Nw. Indep. Forest Mfrs. v. Dep’t of Labor & Indus., 78 Wn.
App. 707, 712, 899 P.2d 6 (1995). In interpreting a contract, courts give it “a practical
and reasonable interpretation that fulfills the object and purpose of the contract rather
than a strained or forced construction that leads to an absurd conclusion, or that renders
the contract nonsensical or ineffective.” Wash. Pub. Util. Dists.’ Utils. Sys. v. Pub. Util.
Dist. No. 1 of Clallam County, 112 Wn.2d 1, 11, 771 P.2d 701 (1989).
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No. 37051-8-III
Webb v. WSU
Incorporation by reference allows contracting parties to incorporate contractual
terms by reference to a separate agreement. W. Wash. Corp. of Seventh-Day Adventists v.
Ferrellgas, Inc., 102 Wn. App. 488, 494, 7 P.3d 861 (2000). Courts will not incorporate
terms by reference unless it is clear that the contracting parties intended to do so. See id.
at 494-95.
The financial aid agreement required WSU to provide Webb with a full athletic
scholarship from the spring of 2017 through the 2020-21 academic year. The agreement
permitted WSU to cancel Webb’s financial aid for various reasons, including if Webb
violated a “documented institutional rule or policy.” CP at 321. This reference to
“documented institutional rule or policy” does not indicate the parties’ clear intent to
incorporate the Handbook’s discipline processes into Webb’s financial aid agreement.
Nor did it create a promise or a duty for WSU to abide by the Handbook. Rather, the
reference provided examples for the types of rules or policies, the violation of which
could result in cancelation of financial aid.
We conclude the financial aid agreement did not incorporate by reference the
Handbook’s discipline processes.9
9
Webb also relies on employment law cases to establish an implied contract
claim. This legal theory was not raised below, so we will not consider it on appeal.
RAP 2.5(a).
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No. 37051-8-III
Webb v. WSU
INTENTIONAL INTERFERENCE WITH THE AGREEMENT
Webb contends the trial court erred by dismissing his tortious interference with
contract claim against Coach Leach.
In order to establish a claim for tortious interference of contract, a plaintiff must
show: (1) the existence of a valid contract, (2) defendant’s knowledge of that contract,
(3) defendant intentionally interfered to breach or disrupt the contractual relationship,
(4) defendant interfered for an improper purpose or used improper means, and
(5) resulting damage. Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn. App.
229, 261-62, 215 P.3d 990 (2009).
The interferer must be an intermeddling third party; “a party to a contract cannot
be held liable in tort for interference with that contract.” Houser v. City of Redmond, 91
Wn.2d 36, 39, 586 P.2d 482 (1978). An employee is a third party to a contract only if the
employee acts outside the scope of employment. Id. at 40. An employee who fails to act
in good faith acts outside the scope of employment. Conard, 62 Wn. App. at 675.
Webb’s reply brief raises an argument he failed to raise in his opening brief. He
argues WSU was required to follow the procedures in the Handbook even if it was not
incorporated by reference into the financial aid agreement. We do not consider issues
raised for the first time in a reply brief. In re Marriage of Bernard, 165 Wn.2d 895, 908,
204 P.3d 907 (2009).
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No. 37051-8-III
Webb v. WSU
“[G]ood faith means ‘nothing more than an intent to benefit the corporation.’” Id.
(quoting Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 599, 611 P.2d 737 (1980)).
Webb argues there is a genuine issue of material fact as to whether Coach Leach
acted outside the scope of employment. He argues Coach Leach lied by claiming that a
violation of his team rules results in dismissal from the team and this lie is evidence of
bad faith. But the question is not whether Coach Leach lied; the question is whether
Coach Leach intended to benefit WSU by enforcing his team rules. When a player
violates a team rule, especially by engaging in criminal conduct, the reputation of the
football team and WSU suffers. Enforcing team rules is necessary to encourage players
not to violate them. A reasonable trier of fact could only conclude that Coach Leach, by
enforcing team rules, intended to benefit WSU. That Coach Leach, at times, failed to
enforce team rules does not mean enforcing team rules is outside Coach Leach’s scope of
employment.
We conclude the trial court did not err by dismissing Webb’s tortious interference
with contract claim against Coach Leach.
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No. 37051-8-III
Webb v. WSU
NEGLIGENCE
Webb contends the trial court erred by dismissing his negligence claim. He argues
the respondents owed him a duty to follow correct procedures, whether those within the
Handbook or those required by due process.
A claim of negligence requires a plaintiff to show (1) the existence of a duty owed,
(2) breach of that duty, (3) injury, and (4) a proximate cause between the breach of the
duty and the injury. Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 127-28,
875 P.2d 621 (1994). The first element—whether the defendant owed a duty to the
plaintiff—is a question of law. Id. at 128. If a duty is established, issues of fact
regarding breach of that duty, proximate cause, and the plaintiff’s injuries are typically
left to the trier of fact. Johnson v. State, 77 Wn. App. 934, 937, 894 P.2d 1366 (1995);
Fuentes v. Port of Seattle, 119 Wn. App. 864, 868, 82 P.3d 1175 (2003).
Respondents argue the independent duty doctrine bars negligence claims based on
contract and cite Eastwood v. Horse Harbor Foundation, Inc., 170 Wn.2d 380, 394, 241
P.3d 1256 (2010). Webb replies by narrowing his argument to procedural due process
and argues his right to procedural due process arises independently of any contract.
Governmental entities are liable for damages arising out of their tortious conduct,
or the tortious conduct of their employees, to the same extent as private persons or
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No. 37051-8-III
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corporations. Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 878, 288
P.3d 328 (2012) (citing RCW 4.96.010(1)). When a governmental entity is the defendant
in a negligence action, “the public duty doctrine provides that a plaintiff must show the
duty breached was owed to him or her in particular, and was not the breach of an
obligation owed to the public in general . . . .” Id.
Webb argues he and the respondents had a special relationship, sufficient to
establish the existence of a duty. We disagree. Only an express assurance by a
government official can be the basis for finding an actionable duty under the special
relationship exception to the public duty doctrine. See Cummins v. Lewis County, 156
Wn.2d 844, 855, 133 P.3d 458 (2006). An assurance that is merely implied or inherent in
the nature of the governmental activity will not suffice. Id. at 856.
Here, neither WSU, Coach Leach, nor the Appeal Committee gave Webb an
express assurance that he would receive procedural due process. At best, any assurance
was implied or inherent in the nature of the appeals process. This is insufficient.
We conclude the trial court did not err by dismissing Webb’s negligence claim
against the respondents.
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No. 37051-8-III
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Reversed in part.
I CONCUR:
Pennell, CJ.
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FEARING, J. (concurring) - I agree with the majority's affirmation of the
dismissal of Zaire Webb's cause of action for negligence. Nevertheless, I would dismiss
on the basis of a lack of tort duty, rather than on the public duty doctrine. A special
relationship between Webb and Washington State University may have resulted from the
termination of Webb's financial aid and his appeal of the termination of the aid.
Zaire Webb contends that Washington State University negligently conducted the
appeal hearing by failing to comply with due process requirements. During oral
argument, Webb conceded that no case stands for the proposition that an entity, let alone
a government entity, holds a duty in tort to conduct a review or appeal hearing in a
competent fashion. Contentions unsupported by argument or citation of authority will
not be considered on appeal. RAP I0.3(a)(5); Carner v. Seattle Post-Intelligencer, 45
Wn. App. 29, 36, 723 P.2d 1195 (1986). The failure to follow due process should be
analyzed solely under the rubric of due process and not also under negligence.
!CONCUR
Fearing, J. )