IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

ZAIRE WEBB, an unmarried individual,

Appellant,

v.

WASHINGTON STATE UNIVERSITY, 

MICHAEL C. LEACH, ANDREW LEHR,

KAREN FISCHER, and KELLY 

MYOTT-BAKER, all in their individual 

capacities only,

Respondents.

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No. 37051-8-III

OPINION PUBLISHED

IN PART

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 

FILED

NOVEMBER 17, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
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Webb v. WSU

2

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 In the unpublished portion of this case, we determine Webb’s 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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3

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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5

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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8

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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9

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 members5for 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 quasijudicial 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 
No. 37051-8-III

Webb v. WSU

24

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.
No. 37051-8-III

Webb v. WSU

25

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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Webb v. WSU

26

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). 
No. 37051-8-III

Webb v. WSU

27

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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Webb v. WSU

28

“[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.
No. 37051-8-III

Webb v. WSU

29

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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Webb v. WSU

30

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.
No. 37051-8-III 

Webb v. WSU 

Reversed in part. 

I CONCUR: 

Pennell, CJ. 

31 
No. 37051-8-III 

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. )