Petition for Writ of Certiorari — Stacey Mooney, Petitioner v. Illinois Education Association, et al.
Supreme Court briefMar 10, 2020
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No. ________
In the Supreme Court of the United States
_____________
STACEY MOONEY, PETITIONER
v.
ILLINOIS EDUCATION ASSOCIATION, ET AL., RESPONDENTS
_____________
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_____________
PETITION FOR A WRIT OF CERTIORARI
_____________
TALCOTT J. FRANKLIN
Talcott Franklin PC
1920 McKinney Avenue
7th Floor
Dallas, Texas 75201
(214) 736-8730
tal@talcottfranklin.com
[Additional counsel listed on
inside cover]
JONATHAN F. MITCHELL
Counsel of Record
Mitchell Law PLLC
111 Congress Avenue
Suite 400
Austin, Texas 78701
(512) 686-3940
jonathan@mitchell.law
Counsel for Petitioner
NORMAN RIFKIND
Law Office of Norman Rifkind
100 East Huron Street #1306
Chicago, Illinois 60611
(847) 372-4747
norman@rifslaw.com
QUESTIONS PRESENTED
Janus v. American Federation of State, County, and
Municipal Employees, Council 31, 138 S. Ct. 2448
(2018), held that the Constitution forbids public-sector
unions to take “fair-share fees” from non-union members, and its holding is retroactive. Petitioner Stacey
Mooney is seeking a refund of the “fair-share fees” that
the Illinois Education Association diverted from her wages before Janus. The Seventh Circuit rejected her
claim after holding that 42 U.S.C. § 1983 establishes a
“good-faith defense” for private defendants that resembles the qualified immunity available to government officers. Pet. App. 23a–28a. Ms. Mooney’s petition presents
two questions:
1. In Wyatt v. Cole, 504 U.S. 158 (1992), this Court
held that qualified immunity is categorically unavailable
to private entities who violate 42 U.S.C. § 1983. See id. at
167 (“[Q]ualified immunity for public officials [is] not applicable to private parties.”). In response to Wyatt, several courts of appeals have allowed private entities to assert a “good-faith defense” in lieu of qualified immunity
when they are sued under 42 U.S.C. § 1983, which allows
private defendants to escape liability if they violate another’s constitutional rights before the courts have clearly established the illegality of their conduct. Other decisions from courts of appeals, however, reject the idea of
a “good-faith defense” and hold private parties liable
whenever they violate 42 U.S.C. § 1983 — regardless of
whether the violation occurred in good faith.
The question presented is:
Does 42 U.S.C. § 1983 provide a “good-faith defense” to private entities who violate another’s
(i)
constitutional rights before the courts have
clearly established the illegality of their conduct?
2. Assuming that 42 U.S.C. § 1983 establishes a
“good-faith defense” for private defendants, the parties
disagree over its scope. The union believes that its goodfaith reliance on pre-Janus statutes and court rulings
should shield it not only from liability for damages, but
also from restitutionary remedies that merely require
the return of property that was taken in good faith but in
violation of another’s constitutional rights. Ms. Mooney
acknowledges that defenses such as qualified immunity
or “good faith” can shield a defendant from liability for
damages, but these defenses never allow defendants to
enrich themselves by keeping money or property that
they took in violation of the Constitution. The issue presented is:
Do the defenses of qualified immunity or “good
faith” allow a defendant who takes another
person’s money or property in violation of the
Constitution — but in reliance on a statute or
court ruling that purported to authorize its
conduct and is only later declared unconstitutional — to keep that money or property when
the owner sues for its return?
(ii)
PARTIES TO THE PROCEEDING
Petitioner Stacey Mooney was the plaintiff-appellant
in the court of appeals.
Respondents Illinois Education Association, the
Congerville-Eureka-Goodfield Education Association,
and the National Education Association were defendants-appellees in the court of appeals.
A corporate disclosure statement is not required because Ms. Mooney is not a corporation. See Sup. Ct. R.
29.6
(iii)
STATEMENT OF RELATED CASES
Counsel is aware of no directly related proceedings
arising from the same trial court case as this case other
than those proceedings appealed here. Those proceedings are:
•
Mooney v. Illinois Education Ass’n, et al., No.
1:18-cv-01439-JBM-JEH, U.S. District Court for
the Central District of Illinois. Judgment entered
April 29, 2019.
•
Mooney v. Illinois Education Ass’n, et al., No.
19-1774, U.S. Court of Appeals for the Seventh
Circuit. Judgment entered November 5, 2019.
(iv)
TABLE OF CONTENTS
Questions presented ............................................................. i
Parties to the proceeding ................................................... iii
Statement of related cases ...................................................v
Table of contents ...................................................................v
Table of authorities ............................................................ vii
Opinions below .......................................................................6
Jurisdiction.............................................................................7
Statutory provisions involved ..............................................7
Statement ...............................................................................7
Reasons for granting the petition .....................................11
I. The courts of appeals are divided on
whether 42 U.S.C. § 1983 establishes a
“good-faith defense” for private defendants .......11
II. The courts of appeals are divided on what
the scope of this “good-faith defense” should
be ............................................................................... 19
III. Each of the questions presented is an issue
of exceptional importance given the large
number of agency-fee refund lawsuits that
are pending in response to Janus .........................28
Conclusion ............................................................................31
APPENDIX
Seventh Circuit opinion in Mooney .................................. 1a
Seventh Circuit opinion in Janus II ................................. 7a
District Court opinion in Mooney ................................... 37a
Seventh Circuit order denying rehearing en banc ....... 67a
(v)
TABLE OF AUTHORITIES
Cases
Akers v. Maryland State Education Ass’n,
No. 1:18-cv-1797-RDB (D. Md.) ....................................29
Aliser v. SEIU California,
No. 3:19-cv-00426-VC (N.D. Cal) ..................................29
Allen v. Santa Clara County Correctional Peace
Officers Ass’n, 400 F. Supp. 998 (E.D. Cal. 2019) .......29
Babb v. California Teachers Ass’n,
378 F. Supp. 3d 857 (C.D. Cal. 2019) ............................29
Bermudez v. Service Employees Int’l Union, Local
521, 2019 WL 1615414 (N.D. Cal.) ................................29
Campos v. Fresno Deputy Sheriff’s Ass’n,
No. 1:18-cv-01660-AWI-EPG (E.D. Cal.) .....................29
Cantor v. Detroit Edison Co., 428 U.S. 579 (1976)..........18
Carey v. Inslee,
No. 3:18-cv-05208-RBL (W.D. Wash.) ..........................29
City of Newport v. Fact Concerts, Inc.,
453 U.S. 247 (1981) ..........................................................18
Clement v. City of Glendale,
518 F.3d 1090 (9th Cir. 2008) .............................15, 22, 23
Cook v. Brown,
364 F. Supp. 3d 1184 (D. Oregon 2019) ........................29
Cooley v. California Statewide Law Enforcement
Ass’n, 385 F. Supp. 3d 1077 (E.D. Cal. 2019)...............29
Crawford-El v. Britton, 523 U.S. 574 (1998) ....................18
Crockett v. NEA-Alaska,
367 F. Supp. 3d 996 (D. Alaska 2019) ...........................29
Danielson v. Inslee,
945 F.3d 1096 (9th Cir. 2019) ................................ passim
(vi)
DeCecco v. United States,
485 F.2d 372 (1st Cir. 1973)..................................5, 20, 25
Downs v. Sawtelle, 574 F.2d 1 (1st Cir. 1978) ........2, 11, 12
Gates v. City of Chicago,
623 F.3d 389 (7th Cir. 2010) ...........................................27
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .....................1, 4
Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ..........15
Hernandez v. AFSCME California,
2019 WL 2546195 (E.D. Cal.) .........................................29
Hoekman v. Education Minnesota,
No. 0:18-cv-01686-SRN-ECW (D. Minn.) ....................29
Hough v. SEIU Local 521,
2019 WL 1274528 (N.D. Cal.) ........................................29
Howerton v. Gabica,
708 F.2d 380 (9th Cir. 1983) .................................. passim
Janus v. American Federation of State, County,
and Municipal Employees, Council 31,
138 S. Ct. 2448 (2018) ................................................ i, 3, 8
Janus v. American Federation of State, County,
and Municipal Employees, Council 31,
942 F.3d 352 (7th Cir. 2019) .........................2, 7, 9, 15, 29
Jordan v. Fox, Rothschild, O’Brien & Frankel,
20 F.3d 1250 (3d Cir. 1994).................................... passim
Lee v. Ohio Education Ass’n,
366 F. Supp. 3d 980 (N.D. Ohio 2019) ...........................29
Lee v. Ohio Education Ass’n, No. 19-3250, 2020
WL 881265 (6th Cir. Feb. 24, 2020) ..........................5, 22
Littler v. Ohio Association of Public School
Employees, No. 2:18-cv-01745-GCS-CMV (S.D.
Ohio) ..................................................................................29
(vii)
Lovell v. One Bancorp, 878 F.2d 10 (1st Cir. 1989) ....3, 13
Messerschmidt v. Millender, 565 U.S. 535 (2012)...........27
Mitchell v. Forsyth, 472 U.S. 511 (1985) ..........................18
Neely v. United States,
546 F.2d 1059 (3d Cir. 1976).................................5, 20, 25
Nelson v. Colorado, 137 S. Ct. 1249 (2017) .................20, 26
Ocol v. Chicago Teachers Union,
No. 1:18-cv-08038-HDL (N.D. Ill.) ................................29
Pasha v. United States,
484 F.2d 630 (7th Cir. 1973) .................................5, 20, 25
Piekarski v. AFSCME Council No. 5,
No. 0:18-cv-02384-SRN-ECW (D. Minn.) ....................29
Pinsky v. Duncan, 79 F.3d 306 (2d Cir. 1996) ........ passim
Richardson v. McKnight, 521 U.S. 399 (1997) ................30
Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996) ............................................................18
Timbs v. Indiana, 139 S. Ct. 682 (2019) ...........................27
United States v. Holmes,
822 F.2d 481 (5th Cir. 1987) ...........................................26
United States v. Lewis,
342 F. Supp. 833 (E.D. La. 1972)...................................26
United States v. Lewis,
478 F.2d 835 (5th Cir. 1973) .................................4, 20, 25
United States v. Rayburn House Office Building
Room 2113 Washington DC 20515,
497 F.3d 654 (D.C. Cir. 2007) .....................................5, 27
United States v. Summa,
362 F. Supp. 1177 (D. Conn. 1972) ......................4, 20, 25
United States v. Venneri,
782 F. Supp. 1091 (D. Md. 1991) ....................5, 20, 25, 26
(viii)
United States v. Windsor, 570 U.S. 744 (2013)......4, 20, 24
Vector Research, Inc. v. Howard & Howard
Attorneys, P.C., 76 F.3d 692 (6th Cir. 1996) ....... passim
Wholean v. CSEA SEIU Local 2001,
2019 WL 1873021 (D. Conn.) .........................................29
Wyatt v. Cole, 504 U.S. 158 (1992)...........................1, 13, 30
Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993) ........... passim
Statutes
28 U.S.C. § 1254(1) ................................................................7
Foreign Sovereign Immunities Act of 1976,
28 U.S.C. §§ 1330, 1602 et seq ........................................18
115 ILCS 5/11 ........................................................................9
Other Authorities
Richard A. Epstein, Torts (1999) ......................................21
(ix)
In the Supreme Court of the United States
_____________
No. ________
STACEY MOONEY, PETITIONER
v.
ILLINOIS EDUCATION ASSOCIATION, ET AL., RESPONDENTS
_____________
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_____________
PETITION FOR A WRIT OF CERTIORARI
_____________
This petition presents two issues that have divided
the lower courts and that urgently call for this Court’s
resolution.
The first issue is whether 42 U.S.C. § 1983 allows private defendants to assert a “good-faith defense” if they
violate someone’s constitutional rights before the courts
have clearly established the illegality of their conduct.
This Court has long held that government officers are
entitled to qualified immunity unless they violate a clearly established federal right. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). But this Court has never
recognized such a defense for private defendants, and
the Court has held that private defendants are ineligible
for qualified-immunity defenses when sued under 42
U.S.C. § 1983. See Wyatt v. Cole, 504 U.S. 158, 167 (1992)
(1)
2
(“[Q]ualified immunity for public officials [is] not applicable to private parties.”). Wyatt, however, refused to
resolve whether 42 U.S.C. § 1983 might allow private defendants to assert a “good-faith defense” that resembles
qualified immunity, and decisions from the courts of appeals look both ways on this question.
Rulings from the Second,1 Third,2 Fifth,3 Sixth,4 and
Seventh Circuits5— and recent decisions from the Ninth
Circuit6— have held that 42 U.S.C. § 1983 allows private
defendants to assert a “good-faith defense,” and that
private defendants should escape liability if they violate
another’s constitutional rights before the courts have
clearly established the illegality of their conduct. But decisions from the First Circuit7— as well as an earlier deSee Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d Cir. 1996).
See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1275–78 (3d Cir. 1994).
3. See Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir. 1993).
4. See Vector Research, Inc. v. Howard & Howard Attorneys, P.C.,
76 F.3d 692, 698–99 (6th Cir. 1996).
5. See Janus v. American Federation of State, County, and Municipal Employees, Council 31, 942 F.3d 352, 361–64 (7th Cir.
2019); see also Pet. App. 23a–28a.
6. See Clement v. City of Glendale, 518 F.3d 1090, 1096–97 (9th
Cir. 2008); Danielson v. Inslee, 945 F.3d 1096, 1099–1100 (9th
Cir. 2019).
7. See Downs v. Sawtelle, 574 F.2d 1, 15–16 (1st Cir. 1978) (“Whatever factors of policy and fairness militate in favor of extending
some immunity to private parties acting in concert with state officials were resolved by Congress in favor of those who claim a
deprivation of constitutional rights. Consequently, we hold that
the Wood defense is not available to Roberta Sawtelle and that
her liability is to be determined by the jury without regard to
(continued…)
1.
2.
3
cision from the Ninth Circuit8— have categorically rejected the notion that private defendants may assert a
“good-faith defense” under 42 U.S.C. § 1983.
This Court has never ruled on whether a “good-faith
defense” is available for private defendants in 42 U.S.C.
§ 1983 litigation, even though the issue has been percolating in the lower courts for decades. But the time has
come for this Court to weigh in, because the existence
and scope of the “good-faith defense” will determine the
outcome of scores of refund lawsuits brought against
public-sector unions in the wake of this Court’s decision
in Janus v. American Federation of State, County, and
Municipal Employees, Council 31, 138 S. Ct. 2448
(2018). Petitioner Stacey Mooney is among the hundreds
of public-sector employees throughout the United States
who are seeking to recover the “fair-share fees” that
were diverted from their wages in violation of their constitutional rights, and the lower courts in every circuit
are attempting to resolve these claims without any guidance from this Court on whether a good-faith defense
exists.
8.
any claim of good faith.”); Lovell v. One Bancorp, 878 F.2d 10,
13 (1st Cir. 1989) (“[E]xtending to private ‘state actors’ a qualified immunity from damages similar to that enjoyed by government officials . . . would require us to distinguish or modify our
decision in Downs v. Sawtelle, 574 F.2d 1 (1st Cir.), cert. denied,
439 U.S. 910 (1978).”).
See Howerton v. Gabica, 708 F.2d 380, 385 n.10 (9th Cir. 1983)
(“[T]here is no good faith immunity under section 1983 for private parties who act under color of state law to deprive an individual of his or her constitutional rights.”).
4
The second question concerns what the scope of this
purported good-faith defense should be. Ms. Mooney
acknowledges that a qualified-immunity defense — and
any “good-faith defense” that might exist under 42
U.S.C. § 1983 — should shield a defendant from liability
for damages if it acted in reliance on a statute or court
ruling that is only later declared unconstitutional. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”); Wyatt v. Cole, 994
F.2d 1113, 1118 (5th Cir. 1993) (recognizing a similar defense for private parties who violate 42 U.S.C. § 1983).
But neither qualified immunity nor good faith will ever
allow a defendant to escape restitution of the money or
property that it took in good faith but in violation of another’s constitutional rights. Taxes, criminal fines, victim’s restitution, and private property that are seized in
good faith — and in reliance on statutes or court rulings
that are only later pronounced unconstitutional — must
be restored when the victim demands their return, regardless of whether the defendant acted in good faith,
and regardless of whether the defendant acted before
the courts had clearly established the illegality of its
conduct. See, e.g., United States v. Windsor, 570 U.S.
744, 753, 775 (2013) (taxes); United States v. Lewis, 478
F.2d 835, 836 (5th Cir. 1973) (fines);9 United States v.
9. See also DeCecco v. United States, 485 F.2d 372, 372–73 (1st Cir.
(continued…)
5
Venneri, 782 F. Supp. 1091, 1092 (D. Md. 1991) (victim’s
restitution); Wyatt v. Cole, 994 F.2d 1113, 1115 (5th Cir.
1993) (property seized pursuant to an unconstitutional
replevin statute); United States v. Rayburn House Office
Building Room 2113 Washington DC 20515, 497 F.3d
654, 656, 665 (D.C. Cir. 2007) (property seized pursuant
to an unconstitutional search warrant). Good faith can
provide an immunity from damages if the victim sues
over the collateral harms (such as emotional distress or
economic loss) caused by the unconstitutional seizure of
her property. But it will never allow someone who takes
another’s money or property in violation of the Constitution to keep that property if the plaintiff sues for its return.
The Seventh Circuit held that the union’s good faith
should not only confer an immunity from damages, but
should also allow the union to escape restitution of the
money that it took from Ms. Mooney in violation of her
constitutional rights. The Seventh Circuit’s ruling on this
point — and the similar pronouncements that the Sixth10
and Ninth11 Circuits have issued in post-Janus refund
lawsuits — are incompatible with the court decisions that
1973) (fines); Neely v. United States, 546 F.2d 1059, 1061 (3d
Cir. 1976) (fines); Pasha v. United States, 484 F.2d 630, 632–33
(7th Cir. 1973) (fines); United States v. Summa, 362 F. Supp.
1177, 1181 (D. Conn. 1972) (fines).
10. See Lee v. Ohio Education Ass’n, No. 19-3250, 2020 WL 881265,
at *2–*6 (6th Cir. Feb. 24, 2020), petition for rehearing en banc
pending.
11. See Danielson v. Inslee, 945 F.3d 1096, 1098–1105 (9th Cir.
2019).
6
uniformly require the return of taxes, criminal fines, victim’s restitution, and private property that a defendant
seizes in violation of another’s constitutional rights, but
in good-faith reliance on statutes or court rulings that
are only later pronounced unconstitutional.12 More importantly, they are incompatible with the other circuitcourt rulings that recognize and enforce a “good-faith
defense” for private defendants under 42 U.S.C. § 1983,13
because none of those rulings allowed a defendant to
keep the money or property that it seized in violation of
another’s constitutional rights, even as they allowed the
defendant to escape liability for damages on account of
its good faith. The Court should grant certiorari to
resolve this division of authority — and to ensure that
public-sector unions are subject to the same rules that
govern other defendants who take money and property
in violation of the Constitution but in reliance on statutes
or court rulings that puported to authorize their unconstitutional conduct.
OPINIONS BELOW
The opinion of the court of appeals is available at 942
F.3d 368, and it is reproduced at Pet. App. 1a–6a. The
order denying rehearing en banc is reproduced at 67a.
12. See note 9, supra, and accompanying text.
13. See Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d Cir. 1996); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1275–
78 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir.
1993); Vector Research, Inc. v. Howard & Howard Attorneys,
P.C., 76 F.3d 692, 698–99 (6th Cir. 1996); Clement v. City of
Glendale, 518 F.3d 1090, 1096–97 (9th Cir. 2008).
7
The opinion of the court of appeals in the companion
case, Janus v. American Federation of State, County,
and Municipal Employees, Council 31, 942 F.3d 352
(7th Cir. 2019), is reproduced at Pet. App. 7a–36a. The
district court’s opinion is available at 372 F. Supp. 3d
690, and it is reproduced at 37a–66a.
JURISDICTION
The court of appeals entered its judgment on November 5, 2019. Pet. App. 1a. The court of appeals denied
rehearing en banc on December 12, 2019. Pet. App. 67a.
Ms. Mooney timely filed this petition for a writ of certiorari on March 10, 2020.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress . . .
STATEMENT
Stacey Mooney is a public-school teacher in the Eureka Community School District #140. Before the Supreme Court’s ruling in Janus, Ms. Mooney worked in
8
an “agency shop,” where she was compelled to either join
the Illinois Education Association or pay “fair-share
fees” to the union as a condition of employment. Ms.
Mooney refused to join the IEA because she disapproves
of its political advocacy. But because she worked in an
agency shop, Ms. Mooney was compelled to pay “fairshare fees” to the IEA and its affiliates against her wishes.
On June 27, 2018, this Court announced its ruling in
Janus, which held that public-sector agency shops violate the constitutional rights of public employees. See
Janus, 138 S. Ct. at 2478. The Court further held that
the Constitution forbids public-sector unions to take
money from the paychecks of non-union members unless
those employees “clearly and affirmatively consent before any money is taken.” Id. at 2486. The union stopped
diverting fair-share fees from Ms. Mooney’s wages in
response to Janus.
On December 6, 2018, Ms. Mooney sued the Illinois
Education Association, the Congerville-Eureka-Goodfield Education Association, and the National Education
Association (collectively, “the union”), and requested a
refund of the “fair-share fees” that the defendants had
unconstitutionally taken from her wages. The union
moved to dismiss and argued that it should not be compelled to return the “fair-share fees” that it had taken
before Janus — even though it had taken these fees in
violation of Ms. Mooney’s constitutional rights.14 The union claimed that it had relied on Illinois statutes and pre14. See Defs.’ Mem. in Support of Mot. to Dismiss (ECF No. 12).
9
Janus court rulings that purported to authorize these
unconstitutional exactions from Ms. Mooney’s wages.15
And the union argued that its reliance on these preJanus authorities should immunize it from refund lawsuits — even though the text of 42 U.S.C. § 1983 requires
the repayment of money that is taken under color of
state law and in violation of another’s constitutional
rights.16
The district court agreed with the union and held that
the “good-faith defense” should preclude Ms. Mooney
from recovering the fair-share fees that were taken in
violation of her constitutional rights. Pet. App. 37a–66a.
Ms. Mooney appealed, and the Seventh Circuit decided
her appeal alongside Janus v. American Federation of
State, County, and Municipal Employees, Council 31,
942 F.3d 352 (7th Cir. 2019) (Janus II), which presents
an identical refund claim brought by another publicsector employee. Most of the Seventh Circuit’s analysis
of the good-faith issue appears in the companion opinion
that was issued in Janus II, and that opinion appears in
the appendix alongside the Seventh Circuit’s Mooney
opinion. Pet. App. 7a–35a (Janus II); Pet. App. 1a–6a
(Mooney).17
The Seventh Circuit assumed for the sake of argument that Janus is retroactive. Pet. App. 20a. It also
15. See id. at 9–12 (citing 115 ILCS 5/11 and Abood v. Detroit Board
of Education, 431 U.S. 209 (1977)).
16. See id. at 7–17.
17. Pet. App. 18a (“[M]uch of what we have to say here also applies
to Mooney’s case.”).
10
held that public-sector unions qualify as “persons” under
42 U.S.C. § 1983, and that they acted “under color of”
state law by partnering with state employers to divert
agency fees from the wages of non-union members. Pet.
App. 21a–22a. But the Seventh Circuit also held that private defendants who violate 42 U.S.C. § 1983 should be
entitled to a good-faith defense if they have “relied substantially and in good faith on both a state statute and
unambiguous Supreme Court precedent validating that
statute.” Pet. App. 35a.
Ms. Mooney, however, had argued that a “good-faith
defense” — even if one assumes its existence — will never
shield a defendant from a restitutionary remedy that
seeks only the return of property or money that was taken in good faith but in violation of another’s constitutional rights. Ms. Mooney acknowledged that qualified immunity and good faith can confer an immunity from
damages if a victim sues over collateral harms (such as
emotional distress or economic loss) that result from the
unconstitutional seizure of her property. But no one ever
gets to keep the property that they take in violation of
another’s constitutional rights — even if the property
was taken in the utmost good faith.18 The Seventh Circuit
did not reject the premise of Ms. Mooney’s argument.
But it held that Ms. Mooney was asserting a “legal”
claim for “damages” rather than an “equitable” claim for
“restitution,” and it denied her request for a refund on
that basis. Pet. App. 4a–6a.
18. See note 9, supra, and accompanying text.
11
REASONS FOR GRANTING THE PETITION
This Court has never resolved whether a “good-faith
defense” exists for private defendants under 42 U.S.C.
§ 1983 — and it has never ruled on what the scope of this
defense should be. Each of these issues is ripe for the
Court’s consideration. The courts of appeals have issued
contradictory and irreconcilable opinions on each of
these matters, and the need for this Court’s resolution is
especially urgent in light of the scores of agency-fee refund lawsuits that public employees have brought in the
aftermath of Janus.
I.
THE COURTS OF APPEALS ARE DIVIDED ON
WHETHER 42 U.S.C. § 1983 ESTABLISHES A
“GOOD-FAITH
DEFENSE”
FOR
PRIVATE
DEFENDANTS
The issues surrounding the existence of a “good-faith
defense” have been percolating in the federal appellate
courts for more than 40 years. The First Circuit was the
first appellate court to weigh in on this matter, and it
categorically rejected the notion of a “good-faith defense” for private defendants in Downs v. Sawtelle, 574
F.2d 1, 15–16 (1st Cir. 1978):
In the case of public officials, the [Supreme]
Court has reasoned that a “good faith” qualified immunity is an integral part of this background. Pierson v. Ray, 386 U.S. at 556-57, 87
S. Ct. 1213, and that certain officials are therefore entitled to rely upon such an immunity.
But the Court has never held that private individuals are in any way shielded from damage
12
liability in a comparable fashion. To the contrary, the Court in Adickes recognized the plaintiff’s right to proceed solely against the private
defendant, despite the fact that three years
earlier the Court had sanctioned a qualified
immunity for the police officers with whom the
defendant allegedly had conspired. See Pierson
v. Ray, supra. To place this court’s imprimatur
upon an immunity in favor of a private individual could in many instances work to eviscerate
the fragile protection of individual liberties afforded by the statute. Private parties simply
are not confronted with the pressures of office,
the often split-second decisionmaking or the
constant threat of liability facing police officers, governors and other public officials. Whatever factors of policy and fairness militate in
favor of extending some immunity to private
parties acting in concert with state officials
were resolved by Congress in favor of those
who claim a deprivation of constitutional
rights. Consequently, we hold that the Wood
defense is not available to Roberta Sawtelle
and that her liability is to be determined by the
jury without regard to any claim of good faith.
Downs v. Sawtelle, 574 F.2d 1, 15–16 (1st Cir. 1978) (emphasis added). Five years later, the Ninth Circuit also
rejected the existence of a “good-faith defense” for private defendants in 42 U.S.C. § 1983 litigation:
[T]here is no good faith immunity under section 1983 for private parties who act under col-
13
or of state law to deprive an individual of his or
her constitutional rights.
Howerton v. Gabica, 708 F.2d 380, 385 n.10 (9th Cir.
1983). And when the First Circuit revisited this matter in
Lovell v. One Bancorp, 878 F.2d 10 (1st Cir. 1989), it refused to reconsider its earlier ruling that had denied the
existence of a “good-faith defense” — or any other defense for private defendants “similar to” the qualified
immunity available to government officials. See id. at 13
(“[E]xtending to private ‘state actors’ a qualified immunity from damages similar to that enjoyed by government
officials . . . would require us to distinguish or modify our
decision in Downs v. Sawtelle, 574 F.2d 1 (1st Cir.), cert.
denied, 439 U.S. 910 (1978)”).
The more recent decisions from the federal courts of
appeals, by contrast, have recognized the existence of a
“good-faith defense” for private defendants in 42 U.S.C.
§ 1983 litigation. All of these appellate-court decisions
post-date this Court’s ruling in Wyatt v. Cole, 504 U.S.
158, 167 (1992), which rejected qualified immunity for
private defendants19 but left open the possibility that private defendants might be allowed to assert a “good-faith
defense” instead.20
19. See Wyatt v. Cole, 504 U.S. 158, 167 (1992) (“[Q]ualified immunity for public officials [is] not applicable to private parties.”).
20. See id. at 169 (“[W]e do not foreclose the possibility that private
defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that
§ 1983 suits against private, rather than governmental, parties
could require plaintiffs to carry additional burdens. Because
(continued…)
14
The first appellate-court decision to recognize a
“good-faith defense” for private defendants was the
Fifth Circuit’s ruling in Wyatt v. Cole, 994 F.2d 1113 (5th
Cir. 1993), which was decided on remand from the Supreme Court’s ruling in Wyatt. The defendant in Wyatt
had seized the plaintiff’s cattle and tractor in reliance on
a state replevin statute that was later declared unconstitutional. When the plaintiff sued for damages under 42
U.S.C. § 1983, the Fifth Circuit held that the defendant’s
good-faith reliance on the unconstitutional statute shielded him from liability:
[W]e think that private defendants, at least
those invoking ex parte prejudgment statutes,
should not be held liable under § 1983 absent a
showing of malice and evidence that they either
knew or should have known of the statute’s
constitutional infirmity.
Id. 994 F.2d at 1120. Since Wyatt, the Second,21 Third,22
Sixth,23 and Seventh24 Circuits have joined the Fifth Cirthose issues are not fairly before us, however, we leave them for
another day.”).
21. Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d Cir. 1996) (“[I]t is
objectively reasonable to act on the basis of a statute not yet
held invalid. . . . The case would be different, however, if those
who act in reliance on a statute can be ‘shown to know that such
[statute] was unconstitutional and would be declared so.’ ” (citation omitted));
22. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1276 (3d Cir. 1994) (“ ‘[P]rivate defendants should not be held liable under § 1983 absent a showing of malice and evidence that
they either knew or should have known of the statute’s constitu(continued…)
15
cuit in recognizing the existence of a good-faith defense
for private defendants under 42 U.S.C. § 1983.
The Ninth Circuit has also issued an opinion that
purports to recognize a “good-faith defense” under 42
U.S.C. § 1983 — despite its earlier holding in Howerton
v. Gabica that categorically rejects this idea.25 In Clement v. City of Glendale, 518 F.3d 1090 (9th Cir. 2008), the
Ninth Circuit allowed a private towing company to assert
a “good-faith defense” under section 1983 without mentioning or discussing Howerton. But Ninth Circuit panels are forbidden to overrule or disregard the rulings of a
prior panel, and Clement had no authority to depart from
Howerton’s rejection of the “good-faith defense.” See
Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)
tional infirmity.’ Wyatt v. Cole, 994 F.2d 1113, 1120 (5th Cir.),
cert. denied, 510 U.S. 977 (1993). We are in basic agreement, but
we believe ‘malice’ in this context means a creditor’s subjective
appreciation that its act deprives the debtor of his constitutional
right to due process.”).
23. See Vector Research, Inc. v. Howard & Howard Attorneys, P.C.,
76 F.3d 692, 698–99 (6th Cir. 1996) (“[T]he Fifth Circuit on remand, that court held that private persons who act under color
of law may assert a good faith defense. Wyatt v. Cole, 994 F.2d
1113, 1120 (5th Cir.), cert. denied, 510 U.S. 977 (1993). The Third
Circuit has agreed. Jordan, 20 F.3d at 1276–77. Now, so do
we.”).
24. See Janus v. American Federation of State, County, and Municipal Employees, Council 31, 942 F.3d 352, 361–64 (7th Cir.
2019); see also Pet. App. 23a–28a.
25. See Howerton v. Gabica, 708 F.2d 380, 385 n.10 (9th Cir. 1983)
(“[T]here is no good faith immunity under section 1983 for private parties who act under color of state law to deprive an individual of his or her constitutional rights.”).
16
(“Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by
the court itself sitting en banc, or by the Supreme Court.
[A] later three-judge panel considering a case that is
controlled by the rule announced in an earlier panel’s
opinion has no choice but to apply the earlier-adopted
rule; it may not any more disregard the earlier panel’s
opinion than it may disregard a ruling of the Supreme
Court.”). So the Ninth Circuit has come down on both
sides of this issue: It rejected the existence of a goodfaith defense in Howerton, only to endorse the defense in
Clement without any mention of its earlier ruling.
When the Ninth Circuit was confronted with these
inconsistent rulings in Danielson v. Inslee, 945 F.3d 1096
(9th Cir. 2019), it tried to recharacterize Howerton as a
ruling that denied only qualified immunity to private
defendants. See id. at 1099 (“Howerton stands for the
unremarkable proposition that private parties cannot
avail themselves of qualified immunity to a section 1983
lawsuit.” (emphasis in original)). That is not what Howerton says or holds. Howerton imposed section 1983 liability on a private landlord who had tried to evict a tenant
with the assistance of police — and it rejected any defense that might have been based on the landlords’ beliefs that they were acting within their rights. The Court
wrote:
We realize the Gabicas may have believed they
were acting within their rights. But there is no
good faith immunity under section 1983 for
private parties who act under color of state law
to deprive an individual of his or her constitu-
17
tional rights. See Lugar, 102 S. Ct. at 2757 n. 23
(suggesting that compliance with statute might
be raised as an affirmative defense); Stypmann
v. City and Cty. of San Francisco, 557 F.2d
1338, 1341–44 (9th Cir. 1977) (private towing
company held liable under section 1983 although it worked only at direction of police pursuant to municipal ordinance).
Howerton, 708 F.2d at 385 n.10. That is not a rejection of
qualified immunity; it is a holding that forecloses the
landlords from asserting any defense based on any belief that they were acting within their rights. See id. If
the district court in Howerton had allowed the landlords
to assert a “good-faith defense” on remand in response
to this opinion, it would have been defying the instructions of its superiors and subjecting itself to summary
reversal.
The Danielson opinion, however, claims that Howerton would have allowed the landlords to assert a goodfaith defense on remand — but only if they called their
good-faith arguments an “affirmative defense” rather
than an “immunity.” See Danielson, 945 F.3d at 1100
(“Although Howerton used the somewhat less precise
language of a ‘good faith immunity,’ 708 F.2d at 385 n.10,
we do not read the decision to foreclose a good faith affirmative defense.”); id. (“Thus, the Clement court acted
well within its authority to find that, while private parties cannot assert an immunity to suit under section
1983, they can invoke a good faith defense.”). In other
words, Howerton forecloses private defendants from asserting good-faith immunity in 42 U.S.C. § 1983 litiga-
18
tion, but it leaves the door open for them to assert good
faith as an affirmative defense.
Danielson’s attempted recharacterization of Howerton is untenable. Immunities are affirmative defenses,26
so there is no conceivable distinction that can be drawn
between good-faith “immunity” and good faith as an “affirmative defense.” Immunities may differ from gardenvariety affirmative defenses because they sometimes
permit interlocutory appeals27 or have jurisdictional implications.28 But Howerton’s rejection of “good faith immunity” was not rejecting the special features of immunity defenses; it was preventing the landlords from asserting any defense based on their belief in the legality of
their conduct. See Howerton, 708 F.2d at 385 n.10.
The more serious problem is that the content of a
“good-faith defense” will be no different from the content
of the “good-faith immunity” that Howerton rejected. In
26. See Crawford-El v. Britton, 523 U.S. 574, 587 (1998) (“[Q]ualified immunity is an affirmative defense”); City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 258 (1981) (noting “the Court’s
willingness to recognize certain traditional immunities as affirmative defenses” in section 1983 litigation); Cantor v. Detroit
Edison Co., 428 U.S. 579, 579 (1976) (“A claim of immunity or
exemption is in the nature of an affirmative defense to conduct
which is otherwise assumed to be unlawful.”).
27. See, e.g., Mitchell v. Forsyth, 472 U.S. 511 (1985) (allowing interlocutory appeals of orders denying qualified immunity).
28. See, e.g., Foreign Sovereign Immunities Act of 1976, 28 U.S.C.
§§ 1330, 1602 et seq (giving foreign sovereigns immunity from
the jurisdiction of U.S. courts, with limited exceptions); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 47 (1996) (recognizing state sovereign immunity as a jurisdictional defense).
19
both situations, a defendant will escape liability under 42
U.S.C. § 1983 if it reasonably believed that its conduct
was lawful — even if its conduct turned out to be unconstitutional. But if litigants and courts are allowed to
evade the precedential force of an earlier decision by
placing a new label on a previously rejected idea, then
that is the end of stare decisis. This Court would never
tolerate litigants or lower courts evading its precedents
through this type of wordplay.
The Ninth Circuit should be viewed as having rulings
on both sides of the circuit split: Howerton, which aligns
with the First Circuit in rejecting a “good-faith defense”
for private defendants in 42 U.S.C. § 1983 litigation; and
Clement and Danielson, which align with the Second,
Third, Fifth, Sixth, and Seventh Circuits in allowing private defendants to assert this defense. The most accurate head count would produce a 5½ to 1½ circuit split in
favor of the good-faith defense — although anyone who
credits Danielson’s recharacterization of Howerton may
choose put the score at 6–1 instead. But no matter how
one chooses to characterize the Ninth Circuit’s “position,” its intra-circuit confusion only amplifies the need
for a definitive ruling from this Court on whether the
good-faith defense exists.
II. THE COURTS OF APPEALS ARE DIVIDED ON
WHAT THE SCOPE OF THIS “GOOD-FAITH
DEFENSE” SHOULD BE
An equally certworthy issue is the scope of this purported “good-faith defense.” Ms. Mooney has acknowledged throughout this litigation that defenses such as
qualified immunity and good faith can shield a defendant
20
from liability for damages. But these defenses will never
permit a defendant to escape restitution of wrongfully
taken property, and they will never allow a defendant to
enrich itself by keeping the property that it took in violation of another’s constitutional rights. That remains the
case even if the defendant took the property at a time
when its actions were authorized by a statute or court
decision that is later declared unconstitutional.
This principle is ubiquitous in American law. Taxes
that are collected under a statute that is later declared
unconstitutional must be returned, even if the taxing authorities relied in good faith on that statute before it was
pronounced unconstitutional. See United States v. Windsor, 570 U.S. 744, 753, 775 (2013). Criminal fines imposed
under an unconstitutional statute must be returned, even
if the fines were collected in good faith and before the
statute was pronounced unconstitutional. See, e.g., Pasha
v. United States, 484 F.2d 630, 632–33 (7th Cir. 1973);
United States v. Lewis, 478 F.2d 835, 836 (5th Cir. 1973);
Neely v. United States, 546 F.2d 1059, 1061 (3d Cir.
1976); DeCecco v. United States, 485 F.2d 372, 372–73
(1st Cir. 1973); United States v. Summa, 362 F. Supp.
1177, 1181 (D. Conn. 1972). Even victim-restitution
awards must be returned if the statute on which the conviction is based is later declared unconstitutional. See
United States v. Venneri, 782 F. Supp. 1091, 1092 (D. Md.
1991); Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017).
And property seized in reliance on a replevin statute that
is later declared unconstitutional must be returned —
even if the defendant took the property in good faith and
21
before the judicial pronouncement of unconstitutionality.
See Wyatt v. Cole, 994 F.2d 1113, 1115 (5th Cir. 1993).29
In all of these cases, a defendant’s good faith will
provide a defense if a victim sues over collateral harms
inflicted by the unconstitutional interference with his
property. The tax collectors in Windsor, for example,
will have qualified immunity if a taxpayer sues to recover
damages for emotional distress or economic losses
caused by the unconstitutional tax. Prosecutors and jailers will have immunity if a convict sues for reputational
harm or wrongful imprisonment caused by their enforcement of a criminal statute that is later declared unconstitutional. And a person who seizes another’s property under an unconstitutional replevin statute will have
a “good faith” defense if the victim seeks to recover
damages beyond the mere return of his property. See
Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993). But the
wrongfully taken property still must be returned — even
when the defendant has a qualified-immunity or a goodfaith defense against claims for damages that arise from
the unconstitutional seizure of property. No one gets to
keep money or property that is taken in good faith but in
violation of another’s constitutional rights.
29. The same principle applies under the common law: A person
who takes another’s property in “good faith” and without fault
must nevertheless return that property or pay its replacement
value in an action for conversion, as conversion is a strictliability tort and is unconcerned with questions of fault or the
defendant’s state of mind. See Richard A. Epstein, Torts § 1.12.1
at 32 (1999).
22
The Seventh Circuit rejected this argument because
it concluded that Ms. Mooney’s claim for restitution was
“legal” rather than “equitable.” Pet. App. 5a.30 But that
is a non sequitur. Ms. Mooney’s claim is that property or
money that is taken in violation of another’s constitutional rights must be restored, even when the defendant
asserts a qualified-immunity or good-faith defense that
shields it from liability for damages, and the defendant
must restore this property or money regardless of
whether the plaintiff seeks recovery from a specifically
identifiable fund or from the defendant’s general asserts.
More importantly, the Seventh Circuit’s conclusion is
incompatible with each of the five circuit-court rulings
that has recognized a good-faith defense outside the context of union-refund lawsuits. See Pinsky v. Duncan, 79
F.3d 306 (2d Cir. 1996); Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994); Wyatt v.
Cole, 994 F.2d 1113 (5th Cir. 1993); Vector Research, Inc.
v. Howard & Howard Attorneys, P.C., 76 F.3d 692 (6th
Cir. 1996); Clement v. City of Glendale, 518 F.3d 1090
(9th Cir. 2008). Each of those court decisions protected
the defendants only from liability for damages that arose
from their unconstitutional interference with another’s
property — and in each of these cases it would have been
absurd to allow the defendants to keep the property in30. The Ninth Circuit’s opinion in Danielson and the Sixth Circuit’s
opinion in Lee rejected this argument for similar reasons. See
Danielson v. Inslee, 945 F.3d 1096, 1102–03 (9th Cir. 2019); Lee
v. Ohio Education Ass’n, No. 19-3250, 2020 WL 881265, at *4
(6th Cir. Feb. 24, 2020).
23
terests that they had taken in good faith but in violation
of the plaintiff’s constitutional rights.
In Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993), for example, the defendants had seized the plaintiff’s cattle
and tractor in good-faith reliance on a replevin statute
that was later pronounced unconstitutional. See id. at
1115. When the plaintiff sued for damages, the Fifth Circuit held that the defendants’ “good faith” shielded them
from liability for damages that were inflicted by the seizure, but the defendants still had to return the cattle
and the tractor that they had unconstitutionally taken.
See id. at 1115 (noting that the state courts had “ordered” the defendants to “return the property” that they
had seized). In Clement v. City of Glendale, 518 F.3d 1090
(9th Cir. 2008), a towing company had towed the plaintiff’s car in good faith but in violation of her constitutional rights. The “good faith” defense shielded the towing
company from liability for damages inflicted by the towing, but it did not allow the towing company to keep the
plaintiff’s car. See id. at 1096–97.
Pinsky v. Duncan, 79 F.3d 306 (2d Cir. 1996), shielded
a defendant from liability for damages inflicted by his
good-faith (but unconstitutional) attachment of the plaintiff’s real estate. The court did not, however, allow the
defendant to retain the unconstitutional attachment that
he had imposed on the plaintiff’s property. See id. at 311–
13. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20
F.3d 1250 (3d Cir. 1994), protected a defendant from liability for damages inflicted by its good-faith (but unconstitutional) garnishment of the plaintiff’s checking account, but the defendant still had to relinquish the un-
24
constitutional garnishment that it had obtained. See id.
at 1258 (noting that the state courts had “vacated the attachment of [the plaintiff’s] checking account”). And Vector Research, Inc. v. Howard & Howard Attorneys, P.C.,
76 F.3d 692 (6th Cir. 1996), allowed a defendant to escape
damages for its good-faith (but unlawful) impoundment
of the plaintiff’s property, but it did not permit the defendant to keep the property that it had unlawfully impounded. See id. at 696 (noting that the defendant had
“held the seized material in trust for eight days” until
the district court took custody of the materials, which the
courts were required to return to the plaintiff after the
impoundment order had been vacated).
It would have been demonstrably untenable — even
absurd — for any of those circuit-court decisions to extend the “good-faith defense” as far as the Seventh Circuit did, to the point where a defendant is not only
shielded from damages but is allowed to enrich itself by
keeping the money or property that it took in violation of
the Constitution. And in no other area of law is a defendant allowed to keep money or property that it takes in
good faith but in violation of another’s constitutional
rights. Consider the following examples:
1. When this Court declared the Defense of Marriage
Act unconstitutional, it compelled the IRS to return the
$363,053 in estate taxes that it had collected from the
plaintiff in reliance on this unconstitutional statute. See
United States v. Windsor, 570 U.S. 744, 753, 775 (2013).
The Court ordered the IRS to refund these taxes even
though the taxes had been collected in good-faith reliance on the Defense of Marriage Act, and even though
25
the taxes had been collected four years before the Supreme Court’s pronouncement of unconstitutionality. See
id. at 753. The defenses of qualified immunity or good
faith would have shielded government officials if a samesex couple had sought damages for collateral harms that
arose from these unconstitutional tax assessments, such
as emotional distress or economic loss. But neither qualified immunity nor good faith will protect defendants
from restitution of the money or property that they took
in violation of the Constitution.
2. When the government collects fines pursuant to a
statute that is later declared unconstitutional, it must
return those fines — even if the government collected the
fines in good faith and in reliance on a statute that was
believed to be constitutional at the time. See Pasha v.
United States, 484 F.2d 630, 632–33 (7th Cir. 1973) (fines
collected pursuant to a statute that is subsequently determined to be unconstitutional must be repaid when suit
is brought to recover them); United States v. Lewis, 478
F.2d 835, 836 (5th Cir. 1973) (same); Neely v. United
States, 546 F.2d 1059, 1061 (3d Cir. 1976) (same); DeCecco v. United States, 485 F.2d 372, 372–73 (1st Cir. 1973)
(same); United States v. Summa, 362 F. Supp. 1177,
1181 (D. Conn. 1972) (same). Even crime victims who receive restitution from a convict must return that money
if the statute on which the conviction was based is later
declared unconstitutional. See United States v. Venneri,
782 F. Supp. 1091, 1092 (D. Md. 1991) (ordering a putative crime victim to repay restitution that it had obtained
nine years earlier, because the conviction had been
“based upon an unconstitutional statute”); see also
26
Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017) (“When
a criminal conviction is invalidated by a reviewing court
and no retrial will occur, . . . the State [is] obliged to refund fees, court costs, and restitution exacted from the
defendant”). That the fines or restitution were imposed
in “good faith” can provide a defense if the convict sues
over the collateral harms imposed by his wrongful conviction. The prosecutor, for example, would have immunity if he were sued for harming the convict’s reputation,
and the jailer would have immunity if he were sued for
wrongful imprisonment. But there is no “good faith” defense when the victim of a wrongful conviction demands
a return of his money that was taken in good faith but in
violation of his constitutional rights. See United States v.
Holmes, 822 F.2d 481, 500 (5th Cir. 1987) (“[A criminal]
defendant can recover a fine imposed under an unconstitutional statute.”); United States v. Lewis, 342 F. Supp.
833, 836 (E.D. La. 1972), aff’d, 478 F.2d 835 (5th Cir.
1973) (“Fairness and equity compel [a return of fines collected under an unconstitutional statute], notwithstanding the fact that the government and the court were proceeding in good faith at the time of prosecution.” (emphasis added)); Venneri, 782 F. Supp. at 1093 (“The interests of justice make it imperative that the petitioner
receive a refund of his restitution.” (emphasis added)).
3. When law-enforcement officers seize property in
violation of the Constitution but in good-faith reliance on
a search warrant that is later declared invalid, they cannot keep the unconstitutionally seized property if the
27
owner sues for its return.31 In United States v. Rayburn
House Office Building Room 2113 Washington DC
20515, 497 F.3d 654, 656, 665 (D.C. Cir. 2007), the FBI
was compelled to return documents that it seized from
Congressman William Jefferson’s office in violation of
the Speech and Debate clause, even though the officers
had relied in good faith on a court-approved search warrant that was believed to be constitutional at the time.
See id. at 664 (“There is no indication that the Executive
did not act based on a good faith interpretation of the
law, as reflected in the district court’s prior approval and
later defense of the special procedures set forth in the
warrant affidavit.”). The officers’ good faith would shield
them from lawsuits for damages that were caused by
their unconstitutional seizure. See, e.g., Messerschmidt v.
Millender, 565 U.S. 535, 546 (2012). But under no circumstance would the officers’ “good faith” allow them to
deprive Congressman Jefferson of the documents that
they had seized in violation of his constitutional rights.
4. If a state confiscates property in violation of the
Excessive Fines clause, it must return that property
even if the seizure occurred before the Supreme Court
declared the Excessive Fines clause applicable to the
States. See Timbs v. Indiana, 139 S. Ct. 682, 687 (2019)
(declaring, for the first time, that “[t]he Excessive Fines
Clause is . . . incorporated by the Due Process Clause of
the Fourteenth Amendment.”). Defenses of qualified
immunity or good faith would shield individual officers
31. Unless, of course, the seized property is contraband. See Gates
v. City of Chicago, 623 F.3d 389, 406 (7th Cir. 2010).
28
from personal monetary liability if they acted in accordance with Supreme Court doctrine existing at that time.
But those defenses cannot be used to prevent a plaintiff
from recovering his property that was confiscated in violation of the Excessive Fines clause — even if the seizure
occurred before the Supreme Court’s pronouncement of
incorporation.
If the Court allows the circuit-court rulings in Janus,
Mooney, and Danielson to stand, then public-sector unions will be the only entities in the United States that are
allowed to keep the property that they take in good faith
but in violation of another’s constitutional rights. The
Court should grant certiorari to resolve the scope of the
good-faith defense — and to bring these rulings into line
with the decisions that require a return of unconstitutionally taken property. No one gets a windfall for violating another person’s constitutional rights, even if the violation occurred in the utmost good faith.
III. EACH OF THE QUESTIONS PRESENTED IS AN
ISSUE OF EXCEPTIONAL IMPORTANCE GIVEN
THE LARGE NUMBER OF AGENCY-FEE
REFUND LAWSUITS THAT ARE PENDING IN
RESPONSE TO JANUS
The need for this Court to decide whether a goodfaith defense exists under 42 U.S.C. § 1983 — and what
the scope of that defense should be — is especially urgent
given the spate of agency-fee refund lawsuits that have
been triggered by Janus. Dozens of refund lawsuits
similar to Ms. Mooney’s are pending in district and cir-
29
cuit courts throughout the county,32 and courts are deciding these cases without any guidance from this Court on
whether a good-faith defense even exists — let alone
what the scope of that defense should be.
32. See, e.g., See Janus v. American Federation of State, County,
and Muncipal Employees, Council 31, 942 F.3d 352 (7th Cir.
2019) (petition for certiorari pending); Danielson v. Inslee, 945
F.3d 1096 (9th Cir. 2019) (petition for certiorari pending); Babb
v. California Teachers Ass’n, 378 F. Supp. 3d 857 (C.D. Cal.
2019), appeal pending 19-55692; Cook v. Brown, 364 F. Supp. 3d
1184 (D. Oregon 2019); Crockett v. NEA-Alaska, 367 F. Supp. 3d
996 (D. Alaska 2019), appeal pending 19-35299; Carey v. Inslee,
No. 3:18-cv-05208-RBL (W.D. Wash.), appeal pending 19-35290;
Lee v. Ohio Education Ass’n, 366 F. Supp. 3d 980 (N.D. Ohio
2019), appeal pending 19-3520; Akers v. Maryland State Education Ass’n, No. 1:18-cv-1797-RDB (D. Md.), appeal pending 191524; Hough v. SEIU Local 521, 2019 WL 1274528 (N.D. Cal.);
Bermudez v. Service Employees Int’l Union, Local 521, 2019
WL 1615414 (N.D. Cal.); Wholean v. CSEA SEIU Local 2001,
2019 WL 1873021 (D. Conn.); Hernandez v. AFSCME California, 2019 WL 2546195 (E.D. Cal.), appeal pending 20-15076;
Cooley v. California Statewide Law Enforcement Ass’n, 385 F.
Supp. 3d 1077 (E.D. Cal. 2019), appeal pending No. 19-16498;
Allen v. Santa Clara County Correctional Peace Officers Ass’n,
400 F. Supp. 3d 998 (E.D. Cal. 2019), appeal pending No. 1917217; Aliser v. SEIU California, No. 3:19-cv-00426-VC (N.D.
Cal); Campos v. Fresno Deputy Sheriff’s Ass’n, No. 1:18-cv01660-AWI-EPG (E.D. Cal.); Hoekman v. Education Minnesota, No. 0:18-cv-01686-SRN-ECW (D. Minn.); Piekarski v.
AFSCME Council No. 5, No. 0:18-cv-02384-SRN-ECW (D.
Minn.); Littler v. Ohio Association of Public School Employees,
No. 2:18-cv-01745-GCS-CMV (S.D. Ohio); Ocol v. Chicago
Teachers Union, No. 1:18-cv-08038-HDL (N.D. Ill.).
30
The Court’s reluctance to wade into these issues in
Wyatt33 and Richardson v. McKnight, 521 U.S. 399, 414
(1997),34 was understandable at a time when so few private defendants were being sued under 42 U.S.C. § 1983
and even fewer lower-court opinions had acknowledged
or discussed the issues. But the issues have fully percolated since Wyatt and are meet for this Court’s decision.
33. Wyatt v. Cole, 504 U.S. 158, 169 (1992) (“[W]e do not foreclose
the possibility that private defendants faced with § 1983 liability
under Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), could
be entitled to an affirmative defense based on good faith and/or
probable cause or that § 1983 suits against private, rather than
governmental, parties could require plaintiffs to carry additional
burdens. Because those issues are not fairly before us, however,
we leave them for another day.”).
34. Richardson v. McKnight, 521 U.S. 399, 414 (1997) (“Wyatt explicitly stated that it did not decide whether or not the private
defendants before it might assert, not immunity, but a special
“good-faith” defense. . . . Like the Court in Wyatt, and the Court
of Appeals in this case, we do not express a view on this lastmentioned question.”).
31
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted.
TALCOTT J. FRANKLIN
Talcott Franklin PC
1920 McKinney Avenue
7th Floor
Dallas, Texas 75201
(214) 736-8730
tal@talcottfranklin.com
JONATHAN F. MITCHELL
Counsel of Record
Mitchell Law PLLC
111 Congress Avenue
Suite 400
Austin, Texas 78701
(512) 686-3940
jonathan@mitchell.law
NORMAN RIFKIND
Law Office of Norman Rifkind
100 East Huron Street #1306
Chicago, Illinois 60611
(847) 372-4747
norman@rifslaw.com
March 10, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.