SUPERIOR COURT OF THE STATE OF RIDGEWAY
CITATION: yassen28, et al. v. Ridgeway National Guard,
et al.,
2022 RSC 619
DATE OF JUDGEMENT:
August 17, 2022
BETWEEN:
yassen28, Soukablet, JamesGardai
Plaintiffs
and
ConstantlyVerbal, bohbazinga, Ridgeway National Guard
Defendants
REASONS FOR JUDGEMENT ON MOTION TO DISMISS
OF THE
HONOURABLE JUDGE KOALAMEDVEDEVA
I. Motion to Dismiss
[1] Defendants submitted a motion to dismiss for lack of jurisdiction and failure to
state a claim on August 14, 2022.
a. Lack of Jurisdiction
[2] Defendants submit that this court lacks jurisdiction to hear this action by reason
of essentially sovereign immunity. They reason that the Complaint does not plead
enough facts to constitute “systematic violations of statutory procedure for hiring
practices” as outlined in s. 2.8(c)(iii) of the Administrative Procedure Act. Instead, they
argue that plaintiffs are not entitled to sue and should express their grievances to the
Governor under s. 2.6(a)
[3] s. 2.6(a) of the Administrative Procedure Act provides:
“Complaints about a department violating the principles of the merit system
shall be directed to the Governor, who shall in all cases, investigate and
adjudicate violations of these claims.
(i) The Governor may seek a written legal opinion from the Attorney
General as to the legality of the violations.”
[4] s. 2.8(c)(iii) of the Administrative Procedure Act provides:
“The cause of action is limited to systematic violations of statutory procedure
for hiring practices. Specific situations regarding an individual shall be handled
through § 2.6.”
[5] In my view, plaintiffs are not barred from pursuing this action and this court
has competent jurisdiction to hear this action.
[6] s. 2.8(c)(iii) refer us to s. 2.6. The latter is a subsection entitled “Merit System
Complaints.” As the heading suggests, s. 2.6 deals specifically with “complaints about
a department violating the principles of the merit system” which shall be “directed to
the Governor”.
[7] It is important to note that the merit system and the background check process
are two distinct processes. Both are part of hiring practices, but neither are analogous
with each other. Certainly, the background check process is not the same as the merit
system. The former is a process with an explicitly “objective criteria that shall remain
static and non-subjective” as referred to in s. 2.7(a) whereas the latter is a “subjective”
process, done “according to the [agency’s] own principles” as referred to in s.
2.5(b)(iv).
[8] Plaintiffs have not alleged that defendants “violat[ed] the principles of the merit
system” as referred to in s. 2.6(a). Instead, they are petitioning the court to review an
allegedly prejudicial hiring practice—specifically the background check process—
consistent with s. 2.8(c)(iii). The procedures for remedy laid out in s. 2.6(a) are
therefore inapplicable to the plaintiffs’ claims and this court is the correct venue for
plaintiffs’ claims.
[9] Defendants also submit during the hearing for their motion that “systematic
violations” as referred to in s. 2.8(c)(iii) means a plan to violate statutory procedure for
hiring practices or a planned violation of statutory procedure for hiring practices and
argue that the Complaint therefore does not plead facts giving rise to the cause of action
in s. 2.8(c) due to the lack of any allegations amounting to such systematic—meaning
planned—violation of plaintiffs’ rights and privileges.
[10] However, I am not convinced that the plain language of the law “systematic
violations” can be construed as effectively meaning premeditated violations. It is
probably more proper to regard “systematic violations” as violations that, having regard
to all of the circumstances, demonstrate a blatant and continuous disregard for the
plaintiffs’ rights, routine or non-isolated errors in judgement on the part of the
defendants, a larger pattern of disregard of the rights guaranteed by law, or deliberate
conduct in bad faith than it is to regard them as premeditated violations.
[11] In my view, by assuming the facts plead as true, the Complaint establishes a
prima facie case of prejudicial hiring practices amounting to systematic violations of
plaintiffs’ rights and privileges. First, the plaintiffs’ incidences are alleged to be not
isolated. Second, the plaintiffs are allegedly not eligible for a background check denial
for every criteria under s. 2.7 of the Administrative Procedure Act. Accordingly, this
action is not barred by sovereign immunity and this court is of competent jurisdiction
to hear this action.
b. Failure to State a Claim
[12] Defendants argue that a claim under s. 2.1 of the Civil Claims Act requires a
plaintiff to refer to essentially a particular line of the specific policy, order, procedure,
or directive being challenged.
[13] The law explicitly recognizes and provides for a situation where a “sensitive
policy, procedure, order, or directive” relates to the claim as referred to in s. 2.1(a)(ii).
The only rational conclusion is that the legislature intended to permit even sensitive
policy, procedure, order, or directive to be challenged from time to time.
[14] It is therefore sufficient for a plaintiff making a claim under s. 2.1 of the Civil
Claims Act to plead sufficient facts demonstrating “concrete, non-hypothetical harm
from the policy, order, procedure, or directive” as referred to in s. 2.1(a)(i) in their
Complaint without citing a specific clause from the allegedly offending policy, order,
procedure, or directive. Plaintiffs have done so in this case.
[15] I am satisfied that an allegation that any policy, order, procedure, or directive
with respect to how background checks are conducted in the Ridgeway National Guard
which impedes on plaintiffs’ rights and privileges to not be subject of unfair hiring
practices is sufficient for this cause of action to stand. Plaintiffs have done so in this
case.
[16] It would not be appropriate to expect a plaintiff filing under this cause of action
to provide a word-for-word transcript of a sensitive policy, order, procedure, or
directive—not to prevail on the claim, but merely be considered to have stated a claim.
[17] It would, however, be appropriate to require plaintiffs to gather a list of
offending clauses before trial, after they have had a chance to request discovery
material.
[18] The deviation from the standard required to prevail on a claim under s. 2.1 of
the Civil Claims Act proposed by defendants is dangerous. There is no reason to disturb
the clearly laid out requirements for this claim and affix a must-cite-clause requirement
to it; simply alleging that “any” policy, order, procedure, or directive impedes on an
individual’s rights, immunities, or privileges secured by law is sufficient allegations
when accompanied by a claim of concrete, non-hypothetical harm suffered as a result.
[19] Having previously found that plaintiffs have properly pleaded facts to sustain
each cause of action and that plaintiffs have standing on a substantially similar
Complaint alleging substantially similar facts, and for the reasons above, I find that the
Complaint is sufficiently plead for the second and third causes of action to stand.
II. Answer
[20] Defendants are directed to file their Answer for the facts alleged and all three
causes of action in the Complaint on or before August 19, 2022.
Dated at the City of Palmer, in the State of Ridgeway this 17th day of August, 2022.
“koalaMedvedeva”
Judge koalaMedvedeva
Motion to dismiss is denied.
Counsel for the plaintiffs yassen28, Soukablet, JamesGardai: stickza,
AlexJCabot, and HolyRomanRyan, Ridgeway.
Counsel for the defendants ConstantlyVerbal, bohbazinga, and Ridgeway
National Guard: Tony_Giordano and RyanJSyndicate, Ridgeway.
