Apr./May 2024 > Recent Significant Cases Decided by the Washington Supreme Court

COLUMN > From the Spindle

BY VALERIE McOMIE AND ALEX McOMIE

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Medical Negligence Statute of Repose Ruled Unconstitutional Under the Privileges and Immunities Clause of the Washington State Constitution

In Bennett v. United States, 2 Wn.3d 430, 539 P.3d 361 (2023), the Washington Supreme Court addressed whether the eight-year medical negligence statute of repose in RCW 4.16.350(3) comported with the privileges and immunities clause in Wash. Const. art. I, § 12.

Bette Bennett underwent sinus surgery at Naval Hospital Bremerton in May 2009. Soon after, she experienced nasal bleeding and went to the hospital’s emergency room (ER). The ER doctor inserted packing into her nasal cavity, causing a cracking sound and severe pain that caused Bennett to lose consciousness. Over the next several years, Bennett experienced a variety of unexplained symptoms including memory loss, migraines, and cognitive impairment. She visited a number of doctors, but none could diagnose her condition or explain its cause. In December 2017, a specialist finally diagnosed Bennett with “traumatic brain injury to her prefrontal cortex caused by the nasal pack insertion in [May] 2009.” Bennett, 2 Wn.3d at 436 (citation omitted).

In August 2018, Bennett filed an administrative tort claim against the Department of the Navy. See id. When the Department denied her claim, Bennett filed suit against the federal government in the United States District Court for the Western District of Washington. See id. The defendant moved to dismiss, arguing that Bennett’s claims were barred by the eight-year outer limit for medical negligence claims outlined in RCW 4.16.350(3). See id. In response, Bennett argued that the statute was unconstitutional. The district court certified questions to the Washington Supreme Court, asking whether the statute violates Wash. Const. art. I, § 10 (access to courts) or § 12 (privileges and immunities). See id. at 435. The Supreme Court accepted certification and focused its analysis on art. I, § 12, declining to reach art. I, § 10. See id. at 452.

Wash. Const. art. I, § 12 provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Art. I, § 12 is sometimes interpreted in lockstep with the Equal Protection Clause of the 14th Amendment to the United States Constitution, which is generally concerned with protecting disfavored groups from discriminatory treatment. See id. at 442 (citation omitted). Most equal protection claims are examined under the rational basis standard, which provides that statutes are constitutional if they bear a rational relationship to a legitimate state aim. See DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d 919 (1998). This relationship does not necessarily need to be grounded in evidence or data—the highly deferential rational basis standard generally permits statutes to be based on “rational speculation.” Id. at 148 (citation omitted).

However, Washington’s founders had a concern independent of the antidiscrimination principles of the federal Equal Protection Clause—preventing grants of favoritism to certain groups that disadvantage others in the exercise of common rights. See Bennett, 3 Wn.3d at 442. In Grant County Fire Protection District. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 731, 42 P.3d 394 (2002), the Washington Supreme Court relied on history surrounding the state’s founding to hold that art. I, § 12 provides heightened protection “when the threat is not of majoritarian tyranny but of a special benefit to a minority and when the issue concerns favoritism rather than discrimination.” Under the Grant County framework, legislation is examined under a heightened “reasonable grounds” test if it both affords a special benefit to certain groups and implicates “fundamental rights which belong to the citizens of the state by reason of such citizenship.” Bennett, 2 Wn.3d at 443. The reasonable grounds test requires courts to “scrutinize the legislative distinction to determine whether it in fact serves the legislature’s stated goal.” Id. at 446 (citation omitted; emphasis in original).

Bennett argued that the reasonable grounds test applied because the statute of repose granted the benefit of limited liability to certain medical providers (those providers not exempted by the statutory exceptions). She further maintained that this benefit implicated medical negligence plaintiffs’ fundamental right to bring a common law-based cause of action.¹1 While medical negligence claims in Washington are asserted as statutory claims under Ch. 7.70 RCW, they are “fundamentally negligence claims, rooted in the common law tradition.” Bennett, 2 Wn.3d at 444. As such, medical negligence claims implicate the fundamental right to assert a common law cause of action. Id. In an 8-1 opinion written by Washington Supreme Court Justice Mary Yu, the court agreed:

If a medical malpractice action does not accrue within the eight-year repose period, then it can never be brought. In such a case … the defendant is granted an article I, section 12 immunity from the plaintiff’s common law cause of action. Such immunity explicitly does not equally belong to all citizens, or corporations because the statute of repose is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, and it does not apply to a civil action based on intentional conduct … for injury occurring as a result of childhood sexual abuse.… Thus, only certain defendants are entitled to immunity pursuant to the statute of repose, thereby triggering article I, section 12’s reasonable ground analysis.

Id.  (internal quotations and citations omitted). 

Having concluded that the statute constituted a grant of favoritism that implicated a fundamental right of state citizenship, the majority applied the heightened “reasonable grounds” test and held that the Legislature’s stated aims were not sufficient to satisfy this standard of review. See id. at 448-52. In response to the argument that the statute would “tend” to reduce the cost of malpractice insurance “if” it had an effect, the court emphasized that speculation about the potential impact of the statute is insufficient to establish reasonable grounds. To the defendant’s argument that the statute would eliminate stale claims, the court noted that the statute’s exceptions (for instance in cases of fraud or intentional concealment), demonstrated that it does not serve the goal of eliminating stale claims generally. Finally, the defendant argued that the statute should be upheld because it reflects a legislative compromise that strikes a balance between the rights of plaintiffs and the health care industry. The court relied on its prior decision in Schroeder v. Weighall, 179 Wn.2d 566, 581, 316 P.3d 482 (2014), to deem this justification insufficient to satisfy the reasonable grounds standard. Bennett, 2 Wn.3d at 450.

In a separate concurrence/dissent, Justice Barbara Madsen agreed that the statute implicated a fundamental right but concluded that the defendant’s justifications satisfied reasonable grounds. See id. at 453 (Madsen, J., concurring/dissenting).

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Detainees Held in Private Civil Immigration Detention Center Qualify as Employees Under Washington’s Minimum Wage Act

In Nwauzor v. The Geo Group, Inc., 2 Wn.3d 505, 538 P.3d 263 (2023), the Washington Supreme Court answered three questions certified to it by the Ninth Circuit. Those questions addressed the rights of detainees who are held at privately-owned civil immigration facilities and perform work for the facility during their period of detention:

1. Whether detained workers at the Northwest ICE Processing Center (NWIPC), a private detention center, are “employees” under the Washington Minimum Wage Act (MWA).

2. Whether the MWA’s government-institutions exemption in RCW 49.46.010(3)(k) applies to work performed by detainees confined in a private detention facility operating under a contract with the state.

3. Whether the award of damages to the class forecloses an unjust enrichment award to the state.

Nwauzor, 2 Wn.3d at 508.

The GEO Group, Inc. (GEO) housed civil immigration detainees at the NWIPC pursuant to a contract with United States Immigration and Customs Enforcement (ICE). GEO was contractually obligated to provide necessities and essential services including a safe and sanitary living environment, clean uniforms and bedding, and three nutritious meals per day.  They were also required to manage a Voluntary Work Program (VWP), which allowed detainees to work and earn income. The contract required GEO to pay detainees a minimum of $1 per day of work. GEO had the discretion to pay a higher rate, but generally paid $1 per day. The contract prohibited GEO from assigning to detainees work that was necessary to run the facility. In practice, however, GEO relied on detainees to perform a substantial portion of such work including laundry, cooking, and cleaning. 

A class of NWIPC detainees sued GEO, alleging that GEO’s failure to pay detainees the state-mandated minimum wage violated Washington’s MWA. Id. at 511. The state of Washington filed an action for unjust enrichment based on similar allegations, and the actions were consolidated. Id. A jury found that GEO violated the MWA and awarded $17,287,063.05 to the class in back pay damages, $5,950,340 to the state for unjust enrichment, and injunctive relief. Id. GEO appealed to the Ninth Circuit, which certified the questions of state law listed above. Id.

The primary issue addressed by the Supreme Court was whether the detainees qualified as employees under Washington’s MWA. RCW 49.46.010(3) defines “employee” as “any individual employed by an employer.” GEO argued that the detainees were excluded from this definition under one of two statutory exceptions: 

• RCW 49.46.010(3)(k), which exempts any “resident, inmate or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution,” Id. at 514; 
• RCW 49.46.010(3)(j), which exempts workers whose “duties require that he or she reside or sleep at the place of his or her employment.” Id. at 517.

In a unanimous opinion written by Washington Supreme Court Justice Charles Johnson, the court held that the detainees qualified as employees under RCW 49.46.010(3) and did not fall within either statutory exception. Id. at 514-17. The court noted at the outset that “Washington has a long and proud history of being a pioneer in the protection of employee rights[,]” and “[c]onsistent with Washington’s priority of protecting employee rights, courts must liberally construe the MWA [in favor of the employee].” Id. at 512-13 (citation omitted). 

Turning to RCW 49.46.010(3)(k), the court agreed with the plaintiffs that this exception “unambiguously applies only to individuals detained in public, government-run institutions.” Id. at 514 (emphasis added). Because the class members were detained in a private facility, this exception did not apply. 

The court also rejected application of RCW 49.46.010(3)(j), agreeing with the plaintiffs that the exception only applies to those who sleep or reside at the workplace because their duties require them to do so. See id. at 517. In this case, the plaintiffs resided at NWIPC not because of work responsibilities but because they were detained for immigration processing. 

Having found the language of the MWA dispositive, the court rejected GEO’s alternative arguments under other legal theories or bodies of law, including the economic-dependence test and the federal Fair Labor Standards Act. Id. at 522-24. 

Finally, the court held that an award of damages to the detainees would not foreclose an unjust enrichment award to the state, which represented “the rights and interests of those harmed by GEO’s failure to pay the minimum wage from 2005-2021,” including the detained workers. Id. at 526. The court identified three factors necessary to sustain an unjust enrichment claim:

1) A benefit conferred upon the defendant by the plaintiff,

2) An appreciation by the defendant of the benefit, and

3) Acceptance of the benefit such that it would be inequitable for the defendant to retain the benefit without payment of its value. 

Id. at 525.

Noting that the district court found all three elements present, the Supreme Court held that nothing would preclude the state from recovering an award for unjust enrichment. Id. at 526.

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Eviction Moratorium During COVID-19 a Legitimate Exercise of Governor’s Emergency Power

In Gonzales v. Inslee, 2 Wn.3d 280, 535 P.3d 864 (2023), the Washington Supreme Court addressed whether Gov. Jay Inslee exceeded his authority by implementing Washington’s eviction moratorium in 2020 in response to the COVID-19 pandemic.

In January 2020, the World Health Organization and the United States Centers for Disease Control confirmed the outbreak of COVID-19, an easily-transmitted and sometimes fatal virus. The first case in Washington was soon identified. Given the high rate of transmission, it quickly became clear that social distancing would limit infection and promote public health. Gov. Inslee declared a state of emergency, limiting public gatherings, closing schools, and directing Washington residents to stay home whenever possible.

As a result, many people’s jobs were suspended or terminated, leading to widespread financial hardship. Recognizing the crisis that would follow if tenants were evicted on a large scale, the governor issued Proclamation 20-19, which generally prohibited residential landlords from evicting tenants for failure to pay rent. While tenants’ obligation to pay rent continued, landlords were prevented from evicting tenants or treating unpaid rent as an enforceable debt. The Legislature eventually implemented a variety of measures to mitigate the losses suffered by landlords during this period, including a rent repayment plan and compensation for unpaid rent. Gonzales, 2 Wn.3d at 288(citingLaws of 2021, ch. 115 §§ 4-5; RCW 59.18.630; RCW 43.41.605). However, landlords nonetheless sustained significant financial losses as a result of the eviction moratorium. 

Gene and Susan Gonzales and other landlords (Petitioners) sued Gov. Inslee for injunctive and declaratory relief, contending that the governor exceeded his statutory emergency powers in RCW 43.06.220. See id. Petitioners also alleged that even if the moratorium were otherwise a valid exercise of the governor’s statutory powers, it was unconstitutional because it delegated legislative powers to the governor, impaired contracts, constituted a taking, violated the petitioners’ right of access to the courts, and violated separation of powers. See id. at 288-89.The trial court granted the state’s motion for summary judgment, and the Court of Appeals affirmed. See id. at 289.

RCW 43.06.220 establishes the governor’s emergency powers. Section .220(1)(h) authorizes the governor, after proclaiming a state of emergency, to prohibit “[s]uch activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.” Section .220(2) describes the governor’s authority to take action concerning the “waiver or suspension of statutory obligations” and enumerates specific instances in which such action is permissible.
§ .220(2)(a)-(g). Petitioners claimed that the moratorium “waive[d] or suspen[ded]” tenants’ statutory obligation to pay rent under the Landlord Tenant Act and should thus be analyzed under Section .220(2). The lower courts agreed with the state that the eviction moratorium was properly analyzed under Section .220(1), as it concerned landlords’ rights to evict and enforce debts, which it characterized as “activities…[that] should be prohibited to help preserve and maintain life, health, property or the public peace,” and not “waiver or suspension of statutory obligations” as described in Section .220(2). 

In a five-justice majority opinion written by Justice Steven González, the Washington Supreme Court upheld the moratorium as a valid exercise of the governor’s statutory emergency powers. Id. at 285. First, the court concluded that the moratorium on evictions was properly analyzed under RCW 43.06.220(1)(h). Id. at 290-92. It characterized the relevant “activit[y]” as “initiating or enforcing an eviction or a debt.” Id. at 291. The court emphasized that the moratorium did not “waive[] or suspend[]” tenants’ obligation to pay rent. Id. at 292.Instead, it simply eliminated landlords’ ability to enforce debt or evict for nonpayment. Id. The court then dispensed with petitioners’ other arguments, holding that the moratorium did not violate the contracts clause in Wash. Const. art. I, § 23, did not constitute a taking of property under Wash. Const. art. I, § 16, did not violate the right of access to courts in Wash. Const. art. I, § 10, and did not violate the separation of powers doctrine. Id. at 293-300.

Justice Charles Johnson wrote a dissenting opinion that was joined by Justices Barbara Madsen, Susan Owens, and Helen Whitener. Id. at 301 (Johnson, J., dissenting). The dissenting justices concluded that the moratorium “waive[d] or suspen[ded] statutory obligations” and thus fell under RCW 43.06.220(2). They further stated that because the moratorium did not fall under any of the enumerated provisions of Section .220(2) permitting emergency action that waives or suspends statutory rights, it exceeded the emergency powers afforded to the governor under RCW 43.06.220. See id.  

NOTE

1. While medical negligence claims in Washington are asserted as statutory claims under Ch. 7.70 RCW, they are “fundamentally negligence claims, rooted in the common law tradition.” Bennett, 2 Wn.3d at 444. As such, medical negligence claims implicate the fundamental right to assert a common law cause of action. Id.