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Roy v. City of Everett2/6/1992
-/REF--> (1987); Marchioro v. Chaney, 90 Wash. 2d 298, 305, 582 P.2d 487 (1978). Article 31 does not employ the tiered scrutiny or classification analysis of the Fourteenth Amendment and Const. art. 1. Marchioro, 90 Wash. 2d at 305. Instead, the single criterion is whether the classification is "by sex discriminatory? or . . . [whether] equality been denied or abridged on account of sex?" Marchioro v. Chaney, supra. If equality is restricted on the basis of sex, the classification is discriminatory. State v. Brayman, 110 Wash. 2d at 201.
In State v. Brayman, 110 Wash. 2d at 183, 200, the plaintiffs alleged that three facially neutral statutory amendments which defined driving while intoxicated violated the ERA. Plaintiffs argued that the amendments discriminated against women because the breath/blood ratio used to determine intoxication under the statute was based on studies of mostly male subjects, and women generally have lower blood/breath ratios and smaller average lung capacity
than men, which would lead to higher breath-alcohol readings among women. State v. Brayman, supra at 202-03. This court rejected the plaintiffs' claim because:
Although the record demonstrates that breath alcohol levels may not accurately represent blood alcohol levels in particular individuals, this evidence alone does not establish that the breath alcohol standard falls more harshly on women as a class. Respondents bear the burden of showing that the Legislature's decision to use a breath alcohol standard to prove impairment falls more harshly on women. Here, no studies have been made of the differences in blood-breath ratios between men and women. At best the record shows that the [standard used] may have a hypothetical disparate impact on women.
Brayman, at 203-04. In this case, as in Brayman, the statistics presented and the arguments based on those statistics show only a hypothetical disparate impact on women, insufficient to establish a violation of the ERA. Compare Hynson v. Chester, 731 F. Supp. at 1240-41. Roy and the amici do not establish that a broader interpretation of RCW 10.99.070 than that adopted by the trial court violates the Equal Rights Amendment of the Washington Constitution.
Summary
The domestic violence act offers peace officers qualified "good faith" immunity not just for arrests, but for any other actions or omissions performed in good faith. A thorough review of the record in this case reveals that the peace officers responded promptly on every occasion when Roy reported an incident of domestic violence. Roy does not allege that the peace officers acted in bad faith, nor is there evidence that they did so. The majority acknowledges that Roy refused to file statements or take other action necessary for the City to pursue her case. Roy's failure to participate, for whatever reason, cannot be construed as "bad faith" failure to protect by the peace officers. Because there is no evidence that the peace officers acted in bad faith, RCW 10.99.070 shields the individual officers and their municipal employer from liability for Roy's claims and summary judgment should have been granted in the City's
favor. Similarly, discretionary immunity precludes Roy's claims based on the City's "distinct duties under the act, to create, fund, and monitor" appropriate training and record-keeping programs. Brief of Respondent, at 37.
Conclusion
In summary, I would hold that:
1. RCW 10.99.07
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