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 ca pacities only, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 37051

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OPINION PUBLISHED IN PART

L AWRENCE

- B ERREY , J.

— Washington State University ( WSU) cancelled Zaire Webb’s four

- year athletic scholarship after its football coa ch dismissed Webb from the team for shoplifting. Webb appealed to WSU’s Athletic Award Appeal Committee (Appeal Committee/Committee)

. T he A ppeal C ommittee 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 A ppeal C ommittee, which he contends violated his right to procedural due
process. The trial court dis missed Webb’s suit on summary judgment. With respect to Webb’s § 1983 claim, the court determined the Appeal Committee violate d Webb’s right
to procedural due process . It further determined the C ommittee was not entitled to 

### FILED NOVEMBER 17 , 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 37051

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2 qualified immunity but was entitled to quasi

- judicial immunity. In the published portion of this case, we determin e the A ppeal C ommittee violated Webb’s r i ght 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 In the unpublished portion of this case, we determine Webb’s remaining claims were properly dismissed.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
W SU’s h ead 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 o r violates a documented institutional rule or policy (e.g., academics policies or standards , athletics department or team rules or policies ) C lerk ’ s P aper s (CP) at 321 (emphasis added)

. T he athletic department and team rules required all players to att end classes, attend weekly meeting s with their academic advisors, and maintain open and honest lines of communication with their academic advisor s , coach es , and professors. The team rulesNo. 37051

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3 also required all players to maintain h igh standards of integrity a nd behavior that reflect ed well on coaches, teammates, the department of athletics a nd the u niversity. Additionally, Coach Leach ha d 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 player s 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 ca se 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 superv isor. 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

.No. 37051

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4 Webb’s L ack of E

ffort As a football player on the WSU team, Webb was required t o do strength and physical conditioning. Tyson Brown, the as sistant strength and c onditioning c oach, frequently interacted with Webb . He believed Webb did not comply with training requirements, was dismissive toward the coaching staff, and consistently l ack ed effort. Brown shared these concerns with Coach Leach. Webb’s D iluted U rine S ample 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 10:3 4 a.m. A t rainer 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 dilute d

. A person must d rink an extraordinary amount of wate r to produce a diluted sample. The Shoplifting I

ncident
Late on October 4, 2017, Officer Aaron Breshears of the Pullman Police Department e - mailed Chief of Police Gary Jenkins that he had arr ested two WSU football pla yers

—Zaire Webb and Anthony White . According to the e

- mail, the two players had shoplift ed several items from Walmart , includi ng home drug testing kits. The nextNo. 37051

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5 morning, Chief Jenkins read the e

- mail and reviewed Officer Breshears’ s initial arrest
repor t

. Chief Jenkins , in accordance with department policy, notified Antonio Huffman,
D irector 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 a t 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 J enkins, including t hat some of the shoplifted items incl uded drug testing kits. Coach Leach promptly dismissed Webb from the WSU footba ll team. Athletic Award Appeal Hearing On October 9, 2017, WSU ’s Student Financial Services (Financial Services) sen t Webb notice that his athletic financial aid would be cancel l ed , effect ive 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.No. 37051

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6 The notice of cancelation briefly explained the appeal process : 1 T he appeal form would be directed to the Chair o f the Athletic Award Appeal Committee (Chair) and the coach or athletic representative would sub mit a written statement to the C ommittee with a
copy to the appealing party. T he Appeal Committee would then notify the parties of the time and place of the ap peal hearing, where “[ e ] ach side w[ould] present their information to the appeals committee.” CP at 495. 2 Also, t he appealing party was required to notify F inancial S ervices 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 t eam. The pertinent part of the letter explained : Zaire Webb was dismissed from t he Washingto n State University f ootball 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 wit h a teammate in early October. Our team r ules 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.No. 37051

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7 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 i nto direct conflict with our team rules. CP at 507. Webb received a copy of this letter. The Appeal Committee wa s comprised of Kelly Myott

- Baker , Assistant Direc tor of Undergraduate Admissions ; Andrew Lehr , Senior Financial Aid Advisor ; and Karen Fisc her , Associate Dean of Students

. The C ommittee scheduled Webb’s hearing f or November 1, 2017. The hearing was not recorded. Webb spoke to the C ommittee for about one

- half hour. He explained the circumstances of his shoplifting arrest and maintained hi s innocence

. 3 When questioned by the C ommittee, h e denied he had any issues with academics, coaches, or trainers. He also told the C ommittee of instances where other players violated team rules but were not dismissed from the team

. Once Webb finished

s p eaking and answering the C ommittee’s questions , t he C ommittee directed him to leave

.

3 T he hearing was not recorded , so we can only infer what Webb told the Appeal C ommittee. The record reflects that White passed the items near the scanning area while Webb watched, but most items were n ot detected by the scanner . We infer that Webb told the C ommittee he thought the items were properly scanned.No. 37051

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8 During the next one - half hour, t he Appeal Committee heard from three athletic department r epresentatives , including Antonio Huffman , Director of Football Operations

. Huff man confirmed that Coach Leach had a team rule that a player who steals will be dismiss ed from the team. He exp lained that Pullman police told him that Webb was arrested for stealing merchandi s e from Walmart, which resulted in his dismissal from the
team. Once the athl etic department representatives finished speaking and answering questions, t he Appeal C ommittee directed them to leave

. T he Appeal C ommittee conferred and u nanimously concluded that Coach Leach was justified in dismiss ing Webb from the foo tball team and that cancelation of Webb’s scholarship also was justified. The C ommittee did not believe Webb’ s claim that he was innocent

. T he same day of the hearing, F inancial S ervices informed Webb of the Appeal Committee ’s decision : This letter is t o inform you that the Athletic Award Appeals Committee has reviewed your appe al 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.No. 37051

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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 fo ur causes of action . As argued, these causes of action were: (1) a 42 U.S.C. § 1983 claim against the Appeal Committee members 5 for violating Webb’s right to procedural due process, (2) a breach of contract claim against WSU , premised on statements conta ined in the Handbook, (3) a tortious interference with
contract claim aga inst 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 fil ed a summary judgment motion. 6 Webb produced evidence that four football players under Coach Leach , on separate occasions, had been arrested and charged with crime s that violated the core rules , yet none were dismissed from the team. 7

5 Even thoug h the members were sued individually, we have and will continue to refe r to them collectively as “the A ppeal s C ommittee,” or “the C ommittee.”

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 t o the attention of the Appeal C ommittee.

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 A ppeal C ommittee.No. 37051

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10 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 w as entitled to quasi

-

judici al 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 orde rs 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 o ne 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 t o the nonmoving party. SentinelC3 , 181 Wn.2d atNo. 37051

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11 140. 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 erre d 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 interest s 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.No. 37051

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12 Procedural D ue P rocess

“‘ 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 ( 9 t h Cir. 2017) (quoting Brewster v. Bd. o f Educ. of Lynwood Unified Sch. Dist. , 149 F.3d 971, 982 (9 th Cir

. 1998))

. Property interests are not created by the Constitution, instead “they are
created and their dimensions are defined by existing rules or under standings 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 provide d , “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 concede s that Webb ha d a protected property interest in his scholarship

. See Resp ’ ts ’ Br. at 37.No. 37051

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13 “[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 R CW. 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 an swer 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 sam e procedures provided by state law. Roybal , 871 F.3d at 9 33

. “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 hear ing 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 beNo. 37051

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14 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 , t he 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 a ffected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the proba bl e 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 procedur al requirement would entail. Mathews , 424 U.S. at 335.
T he first Mathews factor directs us to consider the private interest a ffected by the
gove rnment al action. Here, Webb lost three and one

- half y ears of his athletic scholarshipNo. 37051

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15 because he was di smissed from the football team. 8 T he financial loss to Webb was substantial

. F or many people , the cancelation of a scholarship results in the ir inabil ity to obtain a college education. There is no evidence Webb qualified for other forms of
fi nancial 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 pr oposed 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 hea ring was not recorded, and the C ommittee 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 F inancial S ervices informed Webb the decision was not appealable. The process afforded Webb had many flaws that posed a substantial risk of an erroneous decision. W ebb’s proposed procedures would require the C ommittee to allow Webb to hear and respond to adverse witnesses, issue a written decis ion with b asic findings and

8 The f inancial a id a greement explains that a full athletic scholarship covers

“ course related textbooks, tuition, mandatory fees, room & board, transportation, and miscella neous living expenses.” CP at 321.No. 37051

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16 conclusions, record the hearing, and allow an appeal. These procedures are probative of truth finding and promote consistent , well

- reasoned decisions. The third Ma thews factor requires us to consider the fiscal and administrative burde ns the additional or substitute procedures would entail. There is little b urden 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 o r do not warrant relief. There is some fiscal or administrative burden for recording a hearing and providing an appeal. When weighing the three Ma thews factors, we conclude the process used by the Appeal Committee violated Webb’s constitutional right t o 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 w hat procedures were required before a public school could cancel a student’s scholarship for misconduct. We concluded that a student ha s 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 forNo. 37051

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17 review purposes, and ( 6 ) receive a written decision from the hearing board setting forth its determi nation of contested facts and the basis for its decision. Conard , 62 Wn. App. at 671

- 72. On review, t he Supreme Court reversed on the ground that the students d id not have a l egitimate claim of entitlement to the renewal of their scholarship s . Conard , 119 Wn.2d at 5 30

- 31

. There, the scholarship s w ere renewable at the discretion of the
f inancial aid c ommittee. Id. at 530. Although the Supreme Court reversed our determination that the students had a protected property interest in the renewal of their

s cholarship s , 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 r ight to procedural due process. We now turn to whether the C ommittee is entitled to either quasi

-

judicial immunity or qualified immunity.

a. Quasi

- Judicial Immunit y Webb argues the trial court erred when it determined that quasi

- judicial immunity insulate d the Appeal Committee from liability for violating his right to procedural due
process. We agree.No. 37051

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18 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 cann ot 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

- jud icial 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 characteris tics 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 th at 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 app eal.No. 37051

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19 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 n ot 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 2 03

- 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 disc overy, or challenge hearsay evidence. Id. at 206. Also, t here was no cognizable burden of proof, and prisoners were not afforded a verbatim transcript. Id. “In sum, the [committee]No. 37051

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20 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 pr ior notice, representation by staff members, the right to be present and offer evidence, a “detailed record,” and the a vailability 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 20 3

. The Court was unconvinced and determined that qu alified 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 t o 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 awaren ess of clearly established constitutional limits will not unduly interfere with the exercise of official judgment. ’ ” Id. at 207 (alterations in original) (quoting Butz , 43 8 U.S. at 506

- 07).No. 37051

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21 Application of Cleavinger principles
T he procedural deficienc ies here are at least comparable, and likely greater, than
t hose in Cleavinger

. In Cleavinger , the committee members were asked to resolve disputes between their coworkers and non coworkers of less prominence a ccused of misconduct. Here, the Appeal Commit tee members were asked to resolve a dispute between an influential coworker and someone of less prominence a ccused of misconduct

. We are unaware of any court that has extended quasi

- judicial immunity in a similar situation. Webb was afforded safeguards th at the Cleavinger C ourt deemed insufficient

. In both cases, the person accused of misconduct r eceived prior notice of the charges, although the notice Webb received was somewhat vague. Both had an opportunity to present evidence, although it is unclear w hether Webb was entitled to call witnesses.
But Webb was denied safeguards that were available even in Cleavinger

. Webb’s
h earing was not recorded , and he was not permitted to hear and respond to adverse witnesses. Also, Webb was not provided a w ritte n decision explaining the C ommittee’s findings and how those findings led to its conclusion , n or was he permitted to appeal the decision.No. 37051

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22 We recognize that knowledgeable individuals may be discouraged from serving important governmental functions if the y 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 se ek appellate review. Id. While this argument supports absolute immunity in some cases , we are unpersuaded by it here where so few safeguards exist ed to reduce the risk of an erroneous decision

. Cleavinger denied absolute immunity to committee members wh ose neutrality could be questioned and whose procedures lack ed many safeguards. W e , thus , deny absolute immunity here to C ommittee members whose neutrality could be questioned and whose procedures lack ed 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. 19 34, 114 L. Ed. 2d 547 (1991). As the Cleavinger C ourt observed, qualif

ied 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.No. 37051

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23

b. Qualified Immunity The Appeal Committee argues the trial court erred when it determined the C ommittee was not entitled to qualified immunity. We disagree. Qualified immunity generally shields government officials performing discretionary fu nctions from suit so long as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person s would have known. See Harlow v. Fitzgerald , 457 U.S. 800, 81 8 , 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 threat s of liability. ” Id. at 806. When a defendant moves for summary judgment on a § 1983 claim and raises qualified immunity, the court h as 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.
T he second question is whether the right was clearly established at the time of the violation. Id. ; S a ucier v. Katz , 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). This requires the plaintiff to demonstrate tha t “ at the time of the challenged conduct, ‘ [t]he contours of [a ] right [ a re] sufficiently clear ’ that every ‘ reasonable officialNo. 37051

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24 would [ have understood ] that what he is doing violate s 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. U niversity of Wash ington , 6 2 Wn. App. 664

. There, we explained what processes a public school must afford when reviewing a challenged cancelation of substantial financial aid. Here, the process es the Appeal Committee afforded Webb fell far short of the
p rocesses 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

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25 A ma jority of the panel having determined that on ly 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.

B REACH OF CONTRACT Webb contend s the trial court erred by dismissing his breach of contract claim. H e claim s WSU’s H andbook was incorporated by reference into his financial aid agreement, and WSU breached it by not following the discipline proce sses therein

. To establish a claim for breach of contract, a plaintiff must show a valid agreement existed between the parties that impose d 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 (201 7); 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 strai ned or forced construction that leads to an absurd conclusion, or that renders the contract nonsensical or ineffective.” Wash. Pu b. Util. Dists.’ Utils. Sys. v. Pub. Util. Dist. No. 1 of Clallam County , 112 Wn.2d 1, 11, 771 P.2d 701 (1989).No. 37051

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26 Incorporatio n 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 require d WSU to provide Webb with a full athletic scholarship from the spring of 2017 through the 2020

- 21 academic year. The agree ment permitted WSU to cancel Webb’s financial aid for various reasons, including if Webb violated a “ documented institutional rule or policy. ” CP at 321. Th is reference to

“ documented institutional rule or policy ” does not indicate the parties’ clear int ent 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

c ould result in cancelation of financial aid. We conclude the financial aid agreement d id no t incorporate by reference the
H andbook’s discipline processes

. 9

9 Webb also relies on employment law cases to establish an implied contract claim

. T his legal theory was not raised below , so we will not consider it on appeal. RAP 2.5(a)

.No. 37051

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27 I NTENTIONAL INTERFERE NCE WITH THE AGREEME NT Webb contends the trial court erred by dismi ssing his tortious inte rference with contract claim against Coach Leach

. In order to establish a claim for tort i ous interference of cont r act , a plaintiff must show: (1) the existence of a valid contract, (2) defendant’s knowledge of that contract, (3) d efendant intentional ly 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

- 6 2, 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 em ployee is a th ird party to a contract only if the employee act s 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 f ailed to raise in his opening brief. He argues WSU was required to follow the procedures in the H andbook 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).No. 37051

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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 Coac h Leach lied by claiming that a violation of his team rules results in dismissal from the team a nd this lie is evidence of bad faith. But t he question is not whether Coach Leach lied ; the question is whether Coach Leach intended to benefit WSU by enforcin g his team rules. W hen 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

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Webb v. WSU

29 N EGLIGENCE Webb contends the trial court erred by dismissing his negligence claim

. He argues the respondents owed him a duty to follow correct procedures, w hether those within the
H andbook 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 in

jury. 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 breac h 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 argu e the independent duty doctrine bars negligence claims based on contract and cite Eastwood v. Horse Harbor Found ation , Inc. , 170 Wn.2d 380, 394, 241 P.3d 1256 (2010). Webb replies by narrowing his arg ument 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 p rivate person s orNo. 37051

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30 corporation s . Munich v. Skagit Emergency Commc’n s 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 exp res s 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 i mplied or inherent in the nature of the government al 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.

31No. 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. )