The Implied Right of Action Rule
Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990). This judicial canon has its roots in federal law as well as the Restatement of Torts.
THE JUDICIAL CANON
The Implied Cause of Action Rule is a judicial canon directing that "when a statute ... [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland's Statutes and Statutory Construction § 55.03 (4th ed. 1973)." Bennett v. Hardy, 113 Wn.2d 113 Wn.2d 912, 920, 784 P.2d 1258, (1990) (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state's labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee's labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) ("[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy")) (alteration in original) (emphasis added) (internal quotation marks omitted)."The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy." Bennett v. Hardy, 113 Wn.2d at 920 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).
THE RESTATEMENT OF TORTS
The Washington State Supreme Court has found that "The Restatement of Torts recognizes the implied right of action [as well]:
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.Bennett v. Hardy, 113 Wn.2d at 920 (citing Restatement (Second) of Torts § 874A (1979)).
Washington courts have borrowed "from the test used by federal courts in determining whether to imply a cause of action." Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:
1. whether the plaintiff is within the class for whose "especial" benefit the statute was enacted;
2. whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;
3. whether implying a remedy is consistent with the underlying purpose of the legislation.Id. at 920-21 (internal citations omitted) (emphasis added).
Lastly, the court may make two important assumptions under the Implied Right of Action Rule: (1) "[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and [(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights." See id. at 919-20.
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