The Ninth Circuit has posted the May 2023 revisions to its
Model Civil Instructions. The changes were as follows:
The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen) now cites Sullivan v. Univ. of Wash., 60 F.4th 574, 581-82 (9th Cir. 2023) (holding that the First Amendment right of expressive association did not protect the work of committee members individually or collectively when they were
appointed to serve a public function and their work fell within the scope of their official duties on a university committee).
Section II.B.2 of the Comment to Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship) now notes that the "Ninth Circuit has clarified that 'the only two exceptions to the general rule against failure-to-act liability for
§ 1983 claims presently recognized by this court are the special-relationship exception and the state-created danger exception,' and 'the mere failure to perform a legally required act is [not] grounds for
§ 1983 liability based on a substantive due process violation,'" citing Murguia v. Langdon, 61 F.4th 1096, 1108 (9th Cir. 2023).
The Comment to Instruction 9.33B (Particular Rights—Fourteenth Amendment—Due Process—State-Created Danger) now cites Murguia.
The Introductory Comment to Chapter 10 (CIVIL RIGHTS—TITLE VII—EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION) (under Organization of Instructions) now cites a number of cases supporting the proposition that "[I]n many instances, instructions for a disparate-impact claim under Title VII may be made with minor alterations to the instruction for a disparate impact claim under the ADEA."
The Comments to Instructions 18.1 (Securities—Definitions of Recurring Terms) and 18.5 (Securities—Knowingly) now cite Glazer Cap. Mgmt., L.P. v. Forescout Techs., Inc., 63 F.4th 747 (9th Cir. 2023).