Sean Allen v. Santa Clara Cnty Corr. Poa ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN ALLEN; STANLEY GRAHAM; No. 19-17217
BRADLEY TAYLOR; JUANITA
WIGGINS; JAMES KIRKLAND; ERIC D.C. No.
LIDDLE; ANTONIO RICHARDSON, 2:18-cv-02230-
Plaintiffs-Appellants, MCE-CKD
v.
OPINION
SANTA CLARA COUNTY
CORRECTIONAL PEACE OFFICERS
ASSOCIATION; COUNTY OF SANTA
CLARA; ROB BONTA, *
Defendants-Appellees,
and
MARK GREGERSEN; ERIC BANKS;
PRISCILLA WINSLOW; ERICH
SHINERS; ARTHUR A. KRANTZ,
Defendants,
v.
WILLIAM D. BRICE,
Movant.
*
Rob Bonta has been substituted for his predecessor, Xavier
Becerra, as California Attorney General under Fed. R. App. P. 43(c)(2).
2 ALLEN V. SANTA CLARA CTY. CPOA
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted October 22, 2021
San Francisco, California
Filed June 23, 2022
Before: Bridget S. Bade and Patrick J. Bumatay, Circuit
Judges, and William K. Sessions III, ** District Judge.
Per Curiam Opinion;
Concurrence by Judge Bumatay
SUMMARY ***
Civil Rights
The panel affirmed the district court’s dismissal of a
claim for monetary relief bought pursuant to 42 U.S.C.
§ 1983 by public-sector employees against their union and
the County of Santa Clara, holding that municipalities are
entitled to a good faith defense to a suit for a refund of
mandatory agency fees under § 1983.
The Honorable William K. Sessions III, United States District
**
Judge for the District of Vermont, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALLEN V. SANTA CLARA CTY. CPOA 3
In light of Janus v. American Federation of State,
County, & Municipal Employees, Council 31, 138 S. Ct.
2448 (2018), which held that the compulsory collection of
agency fees by unions violates the First Amendment, several
public-sector employees (“Employees”) filed a class action
lawsuit under § 1983 seeking to retroactively recover any
agency fees taken from their salaries by the Santa Clara
County Correctional Peace Officers Association and Santa
Clara County. The district court dismissed the action against
both parties, holding that their “good faith” reliance on pre-
Janus law meant that they need not return the agency fees.
Following the district court’s dismissal, this court held in
Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019), that
private parties, including unions, may invoke an affirmative
defense of good faith to retrospective monetary liability
under § 1983, where they acted in direct reliance on then-
binding Supreme Court precedent and presumptively-valid
state law. The Employees conceded that Danielson resolved
their claims against their union.
The panel concluded that, because unions get a good
faith defense under Danielson to a claim for a refund of pre-
Janus agency fees, and municipalities’ tort liability for
proprietary actions is the same as private parties, Santa Clara
County was also entitled to a good faith defense to
retrospective § 1983 liability for collecting pre-Janus agency
fees. The panel explained that Danielson’s reasoning—
which relied on precedent and principles of equality and
fairness—also applied with equal force to municipalities.
Concurring, Judge Bumatay agreed that the panel was
bound by Danielson, but wrote that Danielson deviated from
precedent by asserting that the existence of § 1983 defenses
turns not on the strictures of common law, but on principles
4 ALLEN V. SANTA CLARA CTY. CPOA
of equality and fairness. Judge Bumatay also concluded that,
under the common law as it stood in 1871, it appeared that
Santa Clara County would receive immunity. However,
Judge Bumatay wrote that, reaching the right result was no
excuse for shifting focus away from the common law inquiry
required by the Supreme Court and allowing judges to
substitute their own policy preferences for the mandates of
Congress.
COUNSEL
Jonathan F. Mitchell (argued), Mitchell Law PLLC, Austin,
Texas; Talcott J. Franklin, Talcott Franklin PC, Dallas,
Texas; for Plaintiffs-Appellants.
Grant A. Winter (argued), Mastagni Holstedt APC,
Sacramento, California, for Defendant-Appellee Santa Clara
County Correctional Peace Officers Association.
P. Casey Pitts (argued), Altshuler Berzon LLP, San
Francisco, California; James R. Williams, County Counsel;
Nancy J. Clark, Deputy County Counsel, Office of the
County Counsel, County of Santa Clara, San Jose,
California, for Defendant-Appellee County of Santa Clara.
Anthony P. O’Brien (argued), Deputy Attorney General;
Benjamin M. Glickman, Supervising Deputy Attorney
General; Thomas S. Patterson, Senior Assistant Attorney
General; Rob Bonta, Attorney General; Office of the
Attorney General, Sacramento, California; for Defendant-
Appellee Rob Bonta.
ALLEN V. SANTA CLARA CTY. CPOA 5
OPINION
PER CURIAM:
Several years ago, the Supreme Court overruled its own
precedent on the free speech rights of public-sector
employees. Overturning more than forty years of caselaw,
the Court held that public-sector unions may not collect
compulsory “agency fees” from non-union public
employees because the practice violates the employees’ First
Amendment rights. See Janus v. Am. Fed’n of State, Cnty.,
& Mun. Emps., Council 31, 138 S. Ct. 2448 (2018). Before
Janus, the Court permitted such mandatory collection in
Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
In California, state law also authorized the compulsory
collection of agency fees from public employees. See Cal.
Gov’t Code § 3502.5.
In light of Janus, several public-sector employees
including Sean Allen, Stanley Graham, Bradley Taylor, and
Juanita Wiggins (collectively, “Employees”) filed a class
action lawsuit under 42 U.S.C. § 1983 seeking to
retroactively recover any agency fees taken from their
salaries by the Santa Clara County Correctional Peace
Officers Association (“Union”) and Santa Clara County
(“County”). After Janus, the Union stopped collecting
mandatory agency fees from nonconsenting public
employees. But in this case, the Employees want a refund
for the fees that were previously taken. The Employees seek
to hold the County jointly and severally liable with the Union
for compelling them to pay the pre-Janus agency fees taken
in violation of their First Amendment rights.
The Union moved to dismiss the action, claiming that it
was entitled to a good faith defense against § 1983 liability
because its actions were expressly authorized by Abood and
6 ALLEN V. SANTA CLARA CTY. CPOA
state law. The County joined the Union’s motion to dismiss.
The district court dismissed the action against both parties,
holding that their “good faith” reliance on pre-Janus law
meant that they need not return the agency fees.
Following dismissal in the district court, we addressed
whether unions are entitled to a good faith defense for the
pre-Janus compulsory collection of agency fees. We held
that private parties, including unions, “may invoke an
affirmative defense of good faith to retrospective monetary
liability under 42 U.S.C. § 1983, where they acted in direct
reliance on then-binding Supreme Court precedent and
presumptively-valid state law.” Danielson v. Inslee, 945
F.3d 1096, 1097 (9th Cir. 2019).
As they must, the Employees concede that Danielson
resolves their claim against the Union. So, all that’s left for
us to decide is whether the County is also entitled to the good
faith affirmative defense that we addressed in Danielson. 1
We review this question de novo. Dougherty v. City of
Covina, 654 F.3d 892, 897 (9th Cir. 2011). Based on binding
precedent, we affirm.
I.
Although left undecided in Danielson, that case
preordains our decision here. In Danielson, we held that a
1
The district court also dismissed the Employees’ constitutional
challenge to exclusive union representation and to California’s system
for deducting agency fees from public employees’ paychecks, see Cal.
Gov’t Code § 1157.12(b). The Employees concede that binding
precedent forecloses their challenge to exclusive representation and only
seek to preserve that claim for further appellate review, and the
Employees do not pursue their challenge to section 1157.12(b) in this
appeal. We do not address them here.
ALLEN V. SANTA CLARA CTY. CPOA 7
union may assert a good faith defense in an action to recover
retroactive agency fees if the union relied on binding
Supreme Court precedent and state law in assessing the fees.
945 F.3d at 1097. Private parties may “rely on judicial
pronouncements of what the law is, without exposing
themselves to potential liability for doing so.” Id. And
precedent recognizes that municipalities are generally liable
in the same way as private corporations in § 1983 actions.
See Owen v. City of Independence, 445 U.S. 622, 645–47
(1980). It therefore follows that the rule announced in
Danielson for unions also applies to municipalities. We thus
hold that municipalities are entitled to a good faith defense
to a suit for a refund of mandatory agency fees under § 1983.
1.
Before turning to the merits, however, we first consider
whether the Employees forfeited their argument that a
municipality cannot assert a good faith defense. The County
argues that the Employees failed to make that precise
argument before the district court, so we cannot consider it
now. We disagree.
The district court dismissed the Employees’ claim
against both the Union and the County based on the good
faith defense. Although the Employees did not argue that a
separate good faith analysis applies to municipalities, the
Employees argued that a good faith defense was
categorically unavailable in a § 1983 action premised on a
return of property or funds taken in violation of
constitutional rights. “As the Supreme Court has made clear,
it is claims that are deemed waived or forfeited, not
arguments.” United States v. Pallares-Galan, 359 F.3d
1088, 1095 (9th Cir. 2004). Appellants can make any
argument in support of their claim on appeal—they are “not
limited to the precise arguments they made below.” Yee v.
8 ALLEN V. SANTA CLARA CTY. CPOA
City of Escondido, 503 U.S. 519, 534 (1992). The
Employees’ argument that municipalities are not entitled to
a good faith defense is not a new claim but is, instead, a new
argument in support of their consistent claim that good faith
is not a defense to a claim for return of property that was
unconstitutionally taken. See Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 378–79 (1995). The
Employees thus did not forfeit their argument against a
municipality’s good faith defense, and we may proceed to
the merits.
2.
We next address whether municipalities, like the County,
may invoke the affirmative defense of good faith in a § 1983
action seeking the return of compulsory agency fees
collected before Janus. In Danielson, we concluded that a
union may do so when the “conduct was directly authorized
under both state law and decades of Supreme Court
jurisprudence.” 945 F.3d at 1098–99. In reaching that
conclusion, we relied on (1) precedent, id. at 1099–1100, and
(2) “principles of equality and fairness,” id. at 1101.
Looking to those same considerations here, we conclude that
Danielson’s reasoning applies with equal force to
municipalities.
A.
To begin, Danielson looked to precedent to determine
whether private parties, such as unions, may assert a good
faith defense to § 1983 liability. Id. at 1099–1100. Although
the Supreme Court never answered the question, we noted
that the Court left open the possibility of private-party good
faith in dicta. Id. (citing Wyatt v. Cole, 504 U.S. 158, 168–
69 (1992) and Lugar v. Edmondson Oil Co., 457 U.S. 922,
942 n.23 (1982)). For example, in Wyatt, while ruling
ALLEN V. SANTA CLARA CTY. CPOA 9
against qualified immunity for private parties, the Court
expressly did “not foreclose the possibility that private
defendants faced with § 1983 liability . . . could be entitled
to an affirmative defense based on good faith.” 504 U.S.
at 168–69 (citation omitted).
Examining our own precedent, Danielson observed that
we had already recognized that private parties may invoke a
good faith defense to § 1983 liability. 945 F.3d at 1099. In
Clement v. City of Glendale, we said, “courts have
previously held open the possibility that private defendants
may assert a ‘good faith’ defense to a section 1983 claim”
and held that the facts of the case justified such a defense.
518 F.3d 1090, 1097 (9th Cir. 2008).
In Danielson, we then rejected the contention that we
should depart from Clement based on an apparent conflict
with another precedent. Danielson, 945 F.3d at 1099 (noting
tensions between Clement and Howerton v. Gabica,
708 F.2d 380 (9th Cir. 1983)). Because we read Howerton
to only foreclose qualified immunity for private parties, we
concluded we were “bound” by Clement and found it
“dispositive” on whether a private party could assert a good
faith defense. Id. at 1099–1100.
Turning to this case, precedent also supports a
municipality’s ability to invoke a good faith defense in a
§ 1983 action. Contrary to the Employees’ contention, the
Supreme Court did not rule out such a defense for
municipalities in Owen. In Owen, the Court rejected “a
construction of § 1983 that would accord municipalities a
qualified immunity for their good-faith constitutional
violations.” 445 U.S. at 650. In explaining its rationale, the
Court stated that the “municipality may not assert the good
faith of its officers or agents as a defense to liability under
10 ALLEN V. SANTA CLARA CTY. CPOA
§ 1983.” Id. at 638. The Employees take this statement to
mean that a municipality may not assert a good faith defense.
We do not read Owen so broadly. When speaking of
“good faith,” the Court discussed it only in terms of qualified
immunity, not the affirmative defense of good faith at issue
here. To understand this limitation, we must examine the
Court’s reasoning. Looking to history to determine whether
a city could claim qualified immunity, the Court found “no
tradition of immunity for municipal corporations.” Id. The
Court acknowledged, however, that two common-law
doctrines afforded municipalities some measure of
protection from tort liability. Id. at 644. The first
distinguished between a municipality’s “governmental” and
“proprietary” functions; the second immunized a
municipality’s “discretionary” or “legislative” acts, but not
“ministerial” ones. Id. These traditional municipal
immunities, the Court reasoned, were either abrogated by
§ 1983 or unable to serve as a sufficient foundation for
qualified immunity. Id. at 644–50.
First, as for the governmental/proprietary dichotomy, the
Court explained that municipal corporations have a “dual
nature”—they serve as both (1) a corporate body, “capable
of performing the same ‘proprietary’ functions as any private
corporation,” and (2) “an arm of the State,” acting in a
“governmental or public capacity.” Id. at 644–45 (internal
quotation marks omitted). At common law, municipalities
were subject to different protections based on this
distinction. When acting in a “governmental” capacity,
municipalities enjoyed the “immunity traditionally accorded
the sovereign.” Id. at 645. On the other hand, when a
municipality operated in its “proprietary” role, no special
governmental protection shielded it from liability. Id. In
that situation, a municipality was “held to the same standards
ALLEN V. SANTA CLARA CTY. CPOA 11
of liability as any private corporation” and “liable for its torts
in the same manner and to the same extent” as a private
corporation. Id. at 644–45.
Next, as for the discretionary/ministerial distinction, the
Court noted that the separation of powers was the source of
discretionary act immunity. Id. at 648. The doctrine
developed to limit judicial intrusion into the
“reasonableness” of a municipality’s public policy
judgments. See id. This doctrine does not confer qualified
immunity in the § 1983 context, according to the Court,
because liability under § 1983 doesn’t “seek to second-
guess” a municipality’s policy decisions, but ensures its
compliance with the Constitution and federal law. Id. at 649.
In other words, a municipality has no “discretion” to violate
the Constitution, so such discretionary judgments would not
be protected by qualified immunity. Id.
The Court then held that § 1983 abrogated any immunity
based on governmental functions. Id. at 647−48. By
enacting § 1983, the Court held that “Congress . . . abolished
whatever vestige of the State’s sovereign immunity the
municipality possessed.” Id. But, since the “proprietary”
function conferred no tort immunity to begin with, Owen left
untouched a municipality’s defenses as a “private
corporation.” See id. at 645.
The takeaway is that Owen was a case about qualified
immunity, so its references to “good faith” were made only
in that context, not to the affirmative defense of good faith
available to private litigants. See Leatherman v. Tarrant
Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163,
166 (1993) (noting that, in Owen, the Court “rejected a claim
that municipalities should be afforded qualified immunity,
much like that afforded individual officials, based on the
good faith of their agents”). Indeed, the Court later clarified
12 ALLEN V. SANTA CLARA CTY. CPOA
that “a distinction exists between an ‘immunity from suit’
and other kinds of legal defenses,” like the good faith
defense. Richardson v. McKnight, 521 U.S. 399, 403
(1997); see also Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (stating that qualified immunity is “an immunity from
suit rather than a mere defense to liability”). So while Owen
closed the door on municipal qualified immunity, it did not
decide whether municipalities could assert a good faith
defense.
Yet Owen makes clear that, although a municipality may
lack a special governmental immunity, it is still otherwise
treated “in the same manner and to the same extent” as a
private corporation for tort liability. 445 U.S. at 645; see
also Sethy v. Alameda Cnty. Water Dist., 545 F.2d 1157,
1161 (9th Cir. 1976) (noting that “under the common law of
most states in 1866,” “[w]hen acting in a ‘proprietary’
capacity, . . . municipalities were still liable in the same
manner as private entities”). As a corollary, we think that
means municipalities are permitted legal defenses “in the
same manner and to the same extent” as private corporations.
After all, § 1983 “is to be read in harmony with general
principles of tort immunities and defenses rather than in
derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418
(1976).
Here, the County merely facilitated the collection of
agency fees for the Union. According to the Employees, the
County served as a middleman deducting the agency fees
from their paychecks and transferring the funds to the Union
at the Union’s request. The County acted in a proprietary
capacity in so doing. See Qwest Corp. v. City of Surprise,
434 F.3d 1176, 1183 (9th Cir. 2006) (“[A] government does
not ordinarily benefit the general public when it acts in a
proprietary capacity.”); Air Cal, Inc. v. City & Cnty. of San
ALLEN V. SANTA CLARA CTY. CPOA 13
Francisco, 865 F.2d 1112, 1117 (9th Cir. 1989) (“The
proprietary power . . . generally encompasses the City’s
ability as owner to enter into private commercial
relationships.”); see also City of Portland v. United States,
969 F.3d 1020, 1045 (9th Cir. 2020) (explaining that city did
not act in proprietary capacity when the action “serve[d] a
public purpose, and . . . regulated in the public interest, not
in the financial interests of the cities”). At the time, the
County acted under a presumptively valid state law
permitting the payroll deductions. See Cal. Gov’t Code
§ 3502.5. And because unions may assert a good faith
defense in an action to recover these compulsory fees as a
matter of law, Danielson, 945 F.3d at 1103−04, so too may
municipalities. We decline to hold municipalities to a
different standard than we held unions in Danielson.
B.
Danielson next grounded its good faith analysis on
“principles of equality and fairness.” Id. at 1101. Danielson
observed that the Supreme Court and our court’s precedents
were both driven by such “values.” Id. As an example,
Danielson noted that we applied the good faith defense in
Clement because “[t]he company did its best to follow the
law and had no reason to suspect that there would be a
constitutional challenge to its actions.” Id. (alteration in
original) (quoting Clement, 518 F.3d at 1096–97).
According to Danielson, the Supreme Court also cited
“‘principles of equality and fairness’ as the basis for a
potential good faith defense” in Wyatt. Id. (quoting Wyatt,
504 U.S. at 168).
Through this lens, Danielson suggested that it would be
“neither ‘equal’ nor ‘fair’” to withhold the good faith
defense to a private party whose actions were entirely
“innocen[t].” See id. at 1101. The union in that case faced
14 ALLEN V. SANTA CLARA CTY. CPOA
“monetary liability not for flouting [the] law or
misinterpreting its bounds, but for adhering to it.” Id.
at 1103. And the very “purpose” of the good faith defense
was to allow private parties “to rely on binding judicial
pronouncements and state law without concern that they will
be held retroactively liable for changing precedents.” Id.
at 1100. Otherwise, “[i]f private parties could no longer rely
on the pronouncements of even the nation’s highest court to
steer clear of liability,” we cautioned, “it could have a
destabilizing impact on the judicial system.” Id. at 1104.
Danielson also held that the equities weighed against
requiring a refund of the mandatory fees collected before the
Janus decision. Id. at 1103. The Danielson plaintiffs argued
that the good faith defense only applied to liability for
damages and could not shield against an action for restitution
of fees. Id. at 1102. Although we challenged the
restitutionary premise, we said that, even if correct, denying
a refund was “equitable” because the union “b[ore] no fault”
in following state law and Supreme Court precedent. Id.
at 1103. Instead, the union “collected and spent fees under
the assumption—sanctioned by the nation’s highest court—
that its conduct was constitutional.” Id. We also balanced
the benefit the plaintiff employees received with the services
provided by the union. Id. Indeed, we noted it “would not
be equitable to order the transfer of funds from one innocent
actor to another, particularly where the latter received a
benefit from the exchange.” Id.
The same “principles of equality and fairness” apply to
the County. The County relied on the same Supreme Court
pronouncements and the same state law in complying with
the mandatory agency fee system. As noted, Abood
remained binding authority until it was overruled by Janus.
And nothing in the law suggested that municipalities would
ALLEN V. SANTA CLARA CTY. CPOA 15
be liable when the unions were not. In fact, the County bore
far less fault than the unions—it gained nothing from
collecting the agency fees for the Union. It was simply a
middleman transferring the agency fees at the Union’s
request. So equity weighs even more strongly in favor of
granting the good faith defense to the County.
II.
Because, under Danielson, unions get a good faith
defense to a claim for a refund of pre-Janus agency fees,
Danielson, 945 F.3d at 1105, and municipalities’ tort
liability for proprietary actions is the same as private parties,
Owen, 445 U.S. at 639–40, the County is also entitled to a
good faith defense to retrospective § 1983 liability for
collecting pre-Janus agency fees.
AFFIRMED.
BUMATAY, Circuit Judge, concurring:
“[W]hen judges test their individual notions
of ‘fairness’ against an American tradition
that is deep and broad and continuing, it is not
the tradition that is on trial, but the judges.” –
Justice Antonin Scalia, Schad v. Arizona,
501 U.S. 624, 650 (1991) (concurring).
No case reflects Justice Scalia’s concerns better than this
one. When deciding the scope of liability under 42 U.S.C.
§ 1983, the Supreme Court has repeatedly told us what to
do—“we look to the general principles of tort immunities
and defenses applicable at common law.” Filarsky v. Delia,
566 U.S. 377, 384 (2012) (simplified); see also Tower v.
16 ALLEN V. SANTA CLARA CTY. CPOA
Glover, 467 U.S. 914, 920 (1984) (“Section 1983 immunities
are predicated upon a considered inquiry into the immunity
historically accorded the relevant official at common law
and the interests behind it.” (simplified)). We take this
approach because we did not think that Congress would
depart from a common law “tradition so well grounded in
history and reason” through § 1983’s broad language.
Tenney v. Brandhove, 341 U.S. 367, 376 (1951). Thus, in
any case breaking new ground on § 1983 defenses, the first
place we turn is our history and common law.
Despite these repeated instructions, we ignored that
command in Danielson v. Inslee, 945 F.3d 1096 (9th Cir.
2019). Rather than engaging in the historical inquiry
mandated by the Court, Danielson instead appealed to
amorphous “principles of equality and fairness” in deciding
whether unions must pay back the money forcibly taken
from the paychecks of public employees in violation of their
constitutional rights. Id. at 1101. We said no, because we
believed that “equality and fairness” dictated granting the
unions a good faith defense as a matter of law. See id. at
1103–04. That move was wrongheaded.
First off, as a historical matter, there may be reason to
doubt that private parties were entitled to a good faith
affirmative defense. Compare Diamond v. Pa. State Educ.
Ass’n, 972 F.3d 262, 289 (3d Cir. 2020) (Phipps, J.,
dissenting) (“Good faith was not firmly rooted as an
affirmative defense in the common law in 1871, and treating
it as one is inconsistent with the history and the purpose of
§ 1983.”), with Wyatt v. Cole, 504 U.S. 158, 176 (1992)
(Rehnquist, C.J., dissenting) (“[I]t is clear that at the time
§ 1983 was adopted, there generally was available to private
parties a good-faith defense to the torts of malicious
prosecution and abuse of process.”).
ALLEN V. SANTA CLARA CTY. CPOA 17
But whether the common law ultimately supports a good
faith defense for private parties is almost beside the point.
Danielson shouldn’t have so easily disregarded the historical
inquiry in favor of its newfangled “equality and fairness”
test. While looking toward history isn’t perfect and won’t
eliminate all discretionary calls, it at least provides a
common ground to approach critical legal questions and
“forces judges to put their cards on the table.” See Duncan
v. Bonta, 19 F.4th 1087, 1149 (9th Cir. 2021) (en banc)
(Bumatay, J., dissenting). And doing so best respects the
separation of powers by giving meaning to the words
Congress chose rather than providing our own gloss on the
law. So Danielson’s policy-driven test is really just another
way to substitute legal principles for judicial preferences.
Now, judges need only consult their own views of what’s
“equal” and what’s “fair” to excuse constitutional violations.
Of course, as a three-judge panel, we are bound by
Danielson, and so I agree with the per curiam opinion’s
application of that case to municipalities. It makes little
sense to let unions off the hook, but then charge
municipalities with refunding the money taken from public
employees to subsidize union activity. Indeed, even if we
followed the well-defined road paved by the Supreme Court,
we would likely end up at the same place. That’s because
the common law at the time of § 1983’s enactment appears
to have recognized municipal immunity under the facts here.
So while I express doubts about our circuit’s precedent,
I concur in the opinion of the court.
I.
Section 1983 provides that a party “shall be liable” for
the violation of rights “secured by the Constitution and laws”
under the color of state law. 42 U.S.C. § 1983. On its face,
18 ALLEN V. SANTA CLARA CTY. CPOA
§ 1983 grants no defenses or immunities. Imbler v.
Pachtman, 424 U.S. 409, 417 (1976). But the Supreme
Court has held that § 1983 didn’t abrogate settled common
law defenses and immunities. Id. at 418. Instead, the
“tradition of immunity was so firmly rooted in the common
law and was supported by such strong policy reasons,” the
Court recognized that Congress would have expressly
provided for the abolition of the doctrine if it wished to do
so. Owen v. City of Independence, 445 U.S. 622, 637 (1980)
(simplified).
Thus, to determine whether a defense is available in a
§ 1983 action, we “first look to the elements of the most
analogous tort as of 1871 when § 1983 was enacted.”
Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). For
example, the Court considered the “settled principle” of
common law immunities for judges to shield them from
liability in a § 1983 action. Pierson v. Ray, 386 U.S. 547,
554 (1967). Likewise, the common law supported
prosecutorial immunity to § 1983 liability. Imbler, 424 U.S.
at 421–24. This “historical inquiry [is] mandated by”
§ 1983. Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017)
(Thomas, J., concurring).
Danielson deviated from this precedent to assert that the
existence of § 1983 defenses turns not on “the strictures of
common law,” but on “principles of equality and fairness.”
945 F.3d at 1101. According to Danielson, courts may
shield a lawbreaker from § 1983 liability by treating the
party as an “innocent actor” under undefined concepts of
“equality and fairness.” Id. at 1103. As an example,
Danielson pointed to Clement v. City of Glendale, 518 F.3d
1090, 1096–97 (9th Cir. 2008). Id. at 1101. In that case, we
apparently granted a private party a good faith defense
because the company “did its best to follow the law and had
ALLEN V. SANTA CLARA CTY. CPOA 19
no reason to suspect that there would be a constitutional
challenge to its actions.” Id. (quoting Clement, 518 F.3d
at 1096–97). So, in other words, common law immunities
are irrelevant because liability turns on whether we believe
a lawbreaker “did its best” and was sufficiently ignorant of
its violation of law.
Danielson claimed the Supreme Court embraced those
“values” as the basis for finding a good faith defense to
§ 1983 liability in Wyatt v. Cole, 504 U.S. 158, 168 (1992).
See 945 F.3d at 1101. But that’s simply not the case. In fact,
Wyatt said nearly the opposite. Look at the Court’s words—
Although principles of equality and fairness
may suggest . . . that private citizens who rely
unsuspectingly on state laws they did not
create and may have no reason to believe are
invalid should have some protection from
liability, as do their government counterparts,
such interests are not sufficiently similar to
the traditional purposes of qualified
immunity to justify such an expansion.
504 U.S. at 168. This is no endorsement of an “equality and
fairness” test. Contrary to Danielson, “[r]ather than open the
door to an independent defense based on ‘principles of
equality and fairness,’ this statement asserts that, at least in
the context of private-party § 1983 defendants, equality and
fairness considerations are not significant enough in
themselves to warrant divergence from the common-law
model[.]” Diamond, 972 F.3d at 278 (Fisher, J., concurring).
In short, Danielson turned an inquiry that the Court
expressly considered “not sufficient[]” into the centerpiece
of § 1983 liability. We should not have been so brazen.
20 ALLEN V. SANTA CLARA CTY. CPOA
What’s worse, in discarding a historical inquiry in favor
of the “values” of equality and fairness, Danielson showed a
shocking lack of understanding of the nature and meaning of
our common law. 945 F.3d at 1101. Danielson called “rigid
adherence” to a common law inquiry as “oft-arbitrary.” Id.
It also described appeals to common law immunities as
resorting to “historical idiosyncrasies” requiring “strained
legal analogies.” Id. I could not disagree more.
To disparage the common law as “arbitrary” or
“idiosyncratic” profoundly misunderstands its nature and
role in American jurisprudence. “The common law is a
beautiful system; containing the wisdom and experience of
ages.” Penny v. Little, 4 Ill. 301, 304 (1841). Its principles
“grew into use by gradual adoption” and resulted from “the
application of the dictates of natural justice and of cultivated
reason to particular cases.” Solen v. Virginia & T.R. Co.,
15 Nev. 313, 326 (1880) (quoting 1 J. Kent, Commentaries
on American Law 471 (1826) (“Kent”)). In other words,
common law is “not the product of the wisdom of some one
man, or society of men, in any one age; but of the wisdom,
counsel, experience, and observation, of many ages of wise
and observing men.” Gamble v. United States, 139 S. Ct.
1960, 1983 (2019) (Thomas, J., concurring) (quoting Kent,
supra, at 439–40). It is based on the “collective, systematic
development of the law through reason,” rather than
arbitrary dictates of individual judges. Id. (citing Thomas
Sowell, A Conflict of Visions: Ideological Origins of
Political Struggles 49–55 (1987)). Given that the common
law has been discerned, refined, and tested over hundreds of
years, its principles are not “arbitrary” or “idiosyncratic”
mistakes to be cavalierly tossed aside. It was peak judicial
arrogance for Danielson to do so.
ALLEN V. SANTA CLARA CTY. CPOA 21
Strict adherence to a common law inquiry is also
grounded in the separation of powers. Congress chose broad
words in enacting the law—it determined that “[e]very
person . . . shall be liable” for violating federal law without
exception. 42 U.S.C. § 1983. Well-recognized historical
immunities from liability were permitted because Congress
would not have abrogated a fundamental part of the common
law without saying so. Tenney, 341 U.S. at 376. But those
historical immunities should be the beginning and the end.
When courts start to expand beyond the common law, we
begin to replace Congress’s will with our own. But it’s not
our job to consult our “freewheeling policy choices” to
determine winners and losers under § 1983. Ziglar, 137 S.
Ct. at 1871 (Thomas, J., concurring) (simplified).
By relying on vague notions of “equality and fairness,”
Danielson creates a judicial blackbox where judges can veer
away from established legal principles and instead focus on
modern-day preferences. As Justice Scalia observed, in the
name of equality and fairness, judges can “mistake their own
predilections for the law.” Antonin Scalia, Originalism: The
Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989). But we
should not have endorsed such “policy-judgment-couched-
as-law.” Stenberg v. Carhart, 530 U.S. 914, 955 (2000)
(Scalia, J., dissenting). As the Supreme Court has noted,
courts “do not have a license to establish immunities from
§ 1983 actions in the interests of what [they] judge to be
sound public policy.” Tower, 467 U.S. at 922–23.
Danielson’s “principles of equality and fairness” improperly
created such a license.
Danielson’s own analysis reveals the unprincipled
nature of that license. The Supreme Court had ruled that
“[c]ompelling a person to subsidize the speech of other
private speakers” violates the First Amendment. Janus v.
22 ALLEN V. SANTA CLARA CTY. CPOA
Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S.
Ct. 2448, 2464 (2018) (simplified). As the Court held,
public employees were not only forced to support ideas
antithetical to their values, but also lost real wages for years.
See, e.g., William Baude & Eugene Volokh, Compelled
Subsidies and the First Amendment, 132 Harv. L. Rev. 171,
171 (2018) (“The employees in Janus were not compelled to
speak or to associate. They were compelled to pay[.]”).
Rather than focus on the obvious monetary damages the
employees faced, Danielson dismissed the public
employees’ injury as a mere “intangible dignitary harm”
entitled to no redress. 945 F.3d at 1102. Such judicial
recharacterization of the employees’ injury is made easy
under an amorphous “equality and fairness” test.
In short, in holding that unions get a good faith defense
for § 1983 liability, Danielson took a major detour from the
proper inquiry. We should have followed the well-travelled
road set by Congress and condoned by years of Supreme
Court precedent.
II.
That leaves open the question—if we had conducted the
proper common law inquiry here, what might the answer be?
A brief look at history appears to lead in the same direction
as the per curiam opinion. According to a leading treatise on
municipal corporations from the late nineteenth century, “[a]
municipal corporation is not liable to a private individual for
losses caused by its having misconstrued the extent of its
powers” when the damages were not caused by the
municipality’s officer or agent. 2 John F. Dillon, The Law
of Municipal Corporations § 755, at 863–64 (2d ed. 1873)
(“Dillon”). Such a principle favors municipal immunity
here.
ALLEN V. SANTA CLARA CTY. CPOA 23
The Supreme Court’s decision in Fowle v. Common
Council of Alexandria, 3 Pet. 398 (1830), illustrates this
principle. In Fowle, the Court held that a municipality was
not responsible for the damages caused by an independent
third party even though the municipality unlawfully granted
the third party a license to do business within the town. Id.There, a businessman sued the common council of
Alexandria, Virginia for granting a license to an auctioneer
without requiring the auctioneer to post a surety bond as
required by state law. Id. at 406. The businessman sought
$3,000 in damages from Alexandria after the auctioneer sold
his “sundry goods, wares, and merchandize” without paying
him back. Id. It turned out that, because of complications
of federal and state law, the common council was not
empowered to issue auctioneer licenses or take bonds. Id.at 407–08. And since the common council was not legally
able to authorize a license and bond, the businessman’s
action against the municipality could not be sustained. Id.
at 409.
In dismissing the action, Chief Justice Marshall asked,
Is the town responsible for the losses
sustained by individuals from the fraudulent
conduct of the auctioneer? He is not the
officer or agent of the corporation, but is
understood to act for himself as entirely as a
tavern keeper, or any other person who may
carry on any business under a license from
the corporate body.
Is a municipal corporation, established for the
general purposes of government, with limited
legislative powers, liable for losses
consequent on its having misconstrued the
24 ALLEN V. SANTA CLARA CTY. CPOA
extent of its powers, in granting a license
which it had not authority to grant, without
taking that security for the conduct of the
person obtaining the license which its own
ordinances had been supposed to require, and
which might protect those who transacted
business with the person acting under the
license? We find no case in which this
principle has been affirmed.
Id. The Court then concluded that a rule establishing
municipal liability for losses sustained by “a non-feasance,
by an omission of the corporate body to observe a law of its
own, in which no penalty is provided” has no precedent and
it refused to make one in that case. Id.So under the common law as it stood in 1871, it appears
that a municipality would not be responsible for the damages
caused by independent parties even if the municipality
sanctioned the actions of the third party under a
misinterpretation of law. Applied here, Santa Clara County
would receive such immunity. Even if the County
unconstitutionally permitted the public sector unions to take
mandatory dues from the paychecks of its employees, it did
not receive the funds for its own benefit. Under such “non-
feasance,” the common law strongly warrants immunity. 1
1
On the other hand, the same treatise observed that a “municipal
corporation may be liable as respects illegal and void acts, where these
are within the scope of the general powers of the corporation, and where
the enforcement of such acts by its officers under its authority has been
compulsory, resulting in injury to individuals.” Dillon, supra, § 771,
at 883–84 (emphasis omitted). So a municipality must “refund void
taxes and assessments compulsorily collected for its own benefit.” Id.
(emphasis added). Since the public employees don’t allege that Santa
ALLEN V. SANTA CLARA CTY. CPOA 25
III.
Danielson was wrong to create a “principles of equality
and fairness” test. Even if a proper look at common law
history points in the same direction in this case, that was
“mere fortuity.” Ziglar, 137 S. Ct. at 1872 (Thomas, J.,
concurring). Reaching the right result is no excuse for
shifting our focus away from the common law inquiry
required by the Court and “substitut[ing] our own policy
preferences for the mandates of Congress.” Id. But since
we are bound by precedent, I concur fully in the per curiam
opinion.
Clara County acted for “its own benefit” here, this line of tort liability
doesn’t appear to apply.