Ninth Circuit Certifies Retroactivity of ?McClartyFix? to Washington Supreme Court

Plaintiff sued the King County Fire Department for discrimination in federal court. The district court dismissed the federal claims on summary judgment but the WLAD disability claim went to trial. ?The trial was held following the Washington Supreme Court?s decision in McClarty so the district court instructed the jury with the ADA definition of disability. ?The plaintiff lost and appealed. ?In the meantime, the Legislature restored the pre- McClarty definition of disability for cases accruing prior to the date of that decision.?? The plaintiff argued he was entitled to a retrial using the SB5340? definition? of? disability.?? ?Defendant? argued that the Legislature?s action violated separation of powers under the Washington Constitution.?? The plaintiff? asserted ?that ?the? federal ?law ?of retroactivity applied in federal court and the Legislature?s action was permissible under federal the officers had sent too many text messages, the City obtained transcripts of the officers? text messages? ?sent? ?from?? their? ?pagers? ?from?? the wireless company.?? The officers sued under the Fourth Amendment, the Stored Communications Act (?SCA?), and California law.?? Both parties moved for summary judgment. ?The district court granted summary judgment to the defendants on the relevant claims. ?The Ninth Circuit affirmed in part and reversed in part.? ?Weeding through the intricacies of the SCA, the panel held that the phone company was an electronic communications service and therefore liable as a matter of law for the improper release of the text messaging transcripts.?? The panel also held that employees had a reasonable expectation of privacy and the search of the transcripts was unreasonable under the Fourth Amendment given the purpose of the investigation. ?The panel held however the police chief was entitled to qualified immunity.?? ?Quon ?v. ?Arch ?Wireless ?Operating?law.??? ?Chief ?Judge ?Kozinski ?issued ?an ?orderCo.,? ?Inc.,? ?529? ?F.3d? ?892? ?(9thCir.? ?2008). rejecting that argument and holding state law of retroactivity applied. ?The order declined to decide the issue on the merits and certified the question to the Washington Supreme Court. ?The order noted (Wardlaw, Pregerson, Leighton (W.D. Wash.)).