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, Seattle KING 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, Washington, for the appellees. 

E. Christina Beusch (argued), Linda A. Dalton, Assistant

Attorneys General, Olympia, Washington, for the intervenor,

Washington State Human Rights Commission. 

13565
ORDER

This employment discrimination case presents a question of

Washington state constitutional law. Kerry Moore, a firefighter 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 discrimination claims against the Fire District as well as a number 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 disabled 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 application of the 2007 legislation violates the separation of powers doctrine under the Washington Constitution. Given the

important state constitutional question presented here, we certify 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 pending a decision by the Washington Supreme Court regarding the certified

question presented here. 

13566 MOORE v. KING COUNTY FIRE PROTECTION DIST.
State Human Rights Commission defined “disability” as any

“sensory, mental, or physical” condition that causes an individual 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 “disability.” 

In 2007, in direct response to McClarty, the Washington

Legislature passed Substitute Senate Bill 5340. The legislation 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, common or uncommon, mitigated or unmitigated, or whether or

not it limits the ability to work generally or work at a particular 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 application 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 Legislature to contravene retroactively this Court’s construction of a

statute” could violate the state constitutional doctrine of sepaMOORE v. KING COUNTY FIRE PROTECTION DIST. 13567
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 continued to recognize, at least in theory, that such a limit to the legislature’s power exists. See, e.g., Barstad v. Stewart Title

Guaranty Co., 39 P.3d 984 (Wash. 2002) (en banc); Tomlinson v. Clarke, 825 P.2d 706, 713 (Wash. 1992) (en banc). 

Thus we are asked to decide a question of Washington constitutional 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 dispositive 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 . . . dispose of” Moore’s state law claim.”

2

Id. During both the pretrial 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 narrower 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 retroactively regardless of whether the state court would do so. See Vandenbark

v. Owens-Illinois Glass Co., 311 U.S. 538, 541 (1941); Nelson v. Brunswick 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 federal court. See Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866

(8th Cir. 1966). In light of the constitutional challenge, it would be imprudent, 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.
because the pain may have limited his ability to work and perform 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 Stewart, 75 P.3d 521 (Wash. App. 2003) (concluding that the legislation passed was in direct contravention of a state court

decision and therefore violated the separation of powers doctrine). 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) (concluding that the 2007 amendment to the WLAD is constitutional 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 violates 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 allowing 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 fedMOORE v. KING COUNTY FIRE PROTECTION DIST. 13569
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 definition of “disability” for the Washington Law

Against Discrimination where the cause of action

arose prior to the Washington Supreme Court’s decision 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 application 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.
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 Washington Supreme Court issues its answer. 

It is so ORDERED.

________________________________

Chief Judge Alex Kozinski

MOORE v. KING COUNTY FIRE PROTECTION DIST. 13571
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