Donald J. Loen v. Snohomish County

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD J. LOEN,
Plaintiff-Appellant,
v.
SNOHOMISH COUNTY; SNOHOMISH
COUNTY SHERIFF’S OFFICE; JOHN
LOVICK; SUSANNA JOHNSON, in their
individual and/or official capacities,
Defendants-Appellees.
No. 14-35135
DC No. CV 13-00117 TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted July 6, 2016
Seattle, Washington
Before: TASHIMA, McKEOWN, and M. SMITH, Circuit Judges.
Donald Loen, a former police sergeant for the city of Snohomish, sued
Snohomish County, Snohomish County Sheriff’s Office, John Lovick, and
Susanna Johnson (collectively, the “County”) for defamation and other related
FILED
JUL 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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claims. The claims arose out of the County’s release of certain information
regarding Loen’s performance on two polygraph tests to the Ellensburg and
Kittitas police departments. Loen had applied to work at both police departments;
as part of his applications, Loen signed unilateral contracts authorizing the broad
release of information to facilitate a standard background investigation. The
district court granted summary judgment to the County on Loen’s defamation and
related claims. Loen appeals. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
1. The releases that Loen signed are valid contracts. Loen argues that
the releases are not enforceable because they violate Washington public policy, but
the cases he cites concern liability for negligence, not defamation. As discussed
further below, Washington follows the Restatement of Torts in holding that an
individual may consent to an intentional tort. See, e.g., Morinaga v. Vue, 935 P.2d
637, 644 (Wash. Ct. App. 1997). Because Loen’s claim sounds in defamation,
rather than negligence, Washington public policy does not bar enforcement of a
contract consenting to the release of information.
2. Similarly, the releases are neither procedurally nor substantively
unconscionable. “Procedural unconscionability is ‘the lack of a meaningful choice,
considering all the circumstances surrounding the transaction including [t]he
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manner in which the contract was entered,’ whether the party had ‘a reasonable
opportunity to understand the terms of the contract,’ and whether ‘the important
terms [were] hidden in a maze of fine print.’” Adler v. Fred Lind Manor, 103 P.3d
773, 781 (Wash. 2004) (quoting Nelson v. McGoldrick, 896 P.2d 1258, 1262
(Wash. 1995)). The two releases were titled in large print and unambiguously
stated that a signature would waive liability for the release of information
regarding Loen’s background. The broad scope of the releases was clear from the
text, and there is no indication in the record that Loen did not have a reasonable
opportunity to ask clarifying questions before signing the forms. See Tjart v. Smith
Barney, Inc., 28 P.3d 823, 830 (Wash. Ct. App. 2001). As for substantive
unconscionability, a routine release permitting a prospective employer to access
information related to Loen’s fitness for employment is not “monstrously harsh” or
“exceedingly calloused.” Adler, 103 P.3d at 781. Rather, especially in the law
enforcement context, such a release may be necessary to enable prospective
employers to ensure that candidates are fit for the job. See Wash. Rev. Code §
4.24.730 (conferring qualified immunity to former or current employers who
disclose background information to prospective employers of law enforcement
officers).
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3. Washington follows the Restatement of Torts in recognizing consent
as a complete defense to a defamation claim. See Jolly v. Valley Pub. Co., 388
P.2d 139, 141 (Wash. 1964); Restatement (Second) of Torts § 583 (1977). In Cox
v. Nasche, 70 F.3d 1030 (9th Cir. 1995), we applied the Restatement approach to a
claim of defamation. Id. at 1031-32. Like the plaintiff in Cox, Loen signed
releases authorizing the recipient to share a broadly defined set of information with
the release’s holder. The information that the County provided regarding Loen’s
performance on the polygraph tests falls squarely within the scope of both releases.
Because Loen consented to publication of the polygraph results when he signed the
releases, the County’s disclosure of that information was absolutely privileged.
See id. at 1032. Loen’s defamation claim and related reputational claims against
the County fail.
4. Loen has also moved for certification to the Washington Supreme
Court. See Wash. Rev. Code § 2.60.020 (authorizing certification when “it is
necessary to ascertain” Washington law). Because, as described above,
Washington follows the Restatement approach to defamation, and state courts are
virtually unanimous in holding that a valid release is consent to defamation, giving
rise to an absolute privilege to the recipient of the release, see Cox, 70 F.3d at 1031
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(collecting cases), we perceive no need to certify any question to the Washington
Supreme Court.1
AFFIRMED; certification DENIED.
1 Loen also did not seek certification in the district court until his
motion for reconsideration, after the district court had ruled against him. This is a
further reason disfavoring certification. See Thompson v. Paul, 547 F.3d 1055,
1065 (9th Cir. 2008).
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