Nahmod Law

The Background: The Supreme Court’s Janus Decision

Recall the Supreme Court’s blockbuster decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018)(Janus I), overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), and holding that it now violates the First Amendment rights of union nonmembers for state and local governments, and for public employee unions, to compulsorily withhold fair-share or agency fees from those nonmembers.

Question: after Janus, do union nonmembers have viable section 1983 damages claims against the public employee unions that previously received those fair-share or agency fees, at least for the period of time permitted under the forum state’s statute of limitations?

The Seventh Circuit’s Section 1983 Janus Decision

In Janus v. AFSCME, 2019 WL 5704367 (7^th Cir. 2019)(Janus II), petition for certiorari filed, a non-union state employee sued a public employee union under §1983 and the First Amendment for damages to recover the fair-share fees he had previously paid to the union before the Supreme Court’s decision was handed down.

The Seventh Circuit first ruled that the union acted under color of law, and was thus subject to section 1983, because its receipt of fair share fees from the state pursuant to the collective bargaining agreement was attributable to the state. Here, the union was a joint participant in the agency fee arrangement because the state deducted fair share fees from employees’ paychecks and transferred that money to the union which spent it pursuant to the collective bargaining agreement on labor-management issues. The court then went on to determine that Janus I was retroactive.

Finally, the Seventh Circuit found that the union was protected by a good faith defense. After analyzing Wyatt v. Cole, 504 U.S. 158 (1992), a case involving the private use of state attachment procedures, the court reasoned that the good faith defense articulated there applied here as well. It commented that it was “join[ing] its sister circuits in recognizing that, under appropriate circumstances, a private party that acts under color of law for purposes of section 1983 may defend on the ground that it proceeded in good faith.” It declared, relying on Wyatt, that the good faith defense applied to the public union because it had reasonably relied on then-established First Amendment law. The Seventh Circuit relied by analogy on the tort of abuse of process with its good faith “defense,” as well as on the “appropriateness of allowing a good-faith defense on its own terms.” Thus, the plaintiff was not entitled to money damages. Judge Manion concurred, 2019 WL 5704367, *12, pointing out that public unions had received a “windfall.”

Thereafter, the Sixth and Ninth Circuits joined the Seventh Circuit in so holding. Lee v. Ohio Education Assn., 2020 881265 (6^th Cir. 2020) and Danielson v. Inslee, 2019 WL 7182203 (9^th Cir.2019).

Comment

The decision on which Janus II relied, Wyatt v. Cole, soundly held, in my opinion, that qualified immunity does not protect a private defendant who uses unconstitutional state attachment procedures that violate procedural due process. Under a functional approach, this conduct is not governmental and thus does not merit qualified immunity protection.

On the other hand, a kind of good faith defense, with both subjective (honest belief) and objective (reasonable belief) components, would be appropriate, according to various justices in Wyatt. As a matter of policy, we want private parties to rely on the law rather than act illegally. Also, it would be unfair to subject a private party who guesses wrong about the unconstitutionality of a state attachment statute to section 1983 damages liability.

This good faith defense thus differs from qualified immunity in two ways: an immediate interlocutory appeal from a district court’s denial of the good faith defense on summary judgment or on motion to dismiss is not available, and the private defendant must honestly (and reasonably) believe that he or she acted constitutionally.

Significantly, after Wyatt, the Court handed down two private party immunity decisions that are rather clearly in tension with one another. One, Richardson v. McKnight, 117 S. Ct. 2100 (1997), held in an opinion by Justice Breyer that prison guards who are employed by a private prison management firm are not protected by qualified immunity. He improperly, in my view, focused on history and marketplace incentives rather than on the government function that such private prison guards perform. They should have been protected by qualified immunity.

The other, Filarsky v. Delia, 566 U.S. 377 (2012), unanimously and soundly held that a private attorney retained to work with government employees in conducting an internal affairs investigation was protected by qualified immunity. Note that the Court strained to distinguish Richardson as a “self consciously” narrow decision emphasizing the particular circumstances there.

In this light, the Seventh Circuit’s decision in Janus II  appears to be correct. The challenged conduct here is not governmental in nature but still, under Wyatt, it should be protected at least by the good faith defense. Before Janus I was handed down, the law of the land was Abood and it was on this Supreme Court decision that the public employee union relied. This belief was both honest and reasonable at the time.

All of this is not to say, of course, that I support the Court’s current qualified immunity jurisprudence. I do not, as evidenced by a search of this blog for “qualified immunity” and by the analysis of qualified immunity in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw).

In any event, since a petition for certiorari in pending in Janus II, we may shortly see whether the Supreme Court weighs in on these good faith defense issues.

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