Bertot v. School Dist. No. 1, Albany County, Wyo.

• Decision Date: 26 November 1979
• Docket Number: No. 76-1169,76-1169
• Parties: Donna BERTOT, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 1, ALBANY COUNTY, WYOMING et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 245

613 F.2d 245

Donna BERTOT, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 1, ALBANY COUNTY, WYOMING et al Defendants-Appellees.

No. 76-1169.

United States Court of Appeals Tenth Circuit.

Nov. 26, 1979.

Michael H. Gottesman, Washington, D. C. (Robert M. Weinberg of Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., David Rubin, Washington, D. C., and Charles E. Graves of Graves & Hacker Cheyenne, Wyo., on the brief), for plaintiff-appellant.

Alfred M. Pence of Pence, Millett & MacMillan, Laramie, Wyo., for defendants-appellees.

Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, DOYLE, McKAY and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

We here consider, in light of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the availability to appellee School District of a "good faith" defense in an action brought for backpay under 42 U.S.C. § 1983 (1976). We hold that a good faith defense is not available.

I.

This case, begun in 1971, is making its third appearance before this court. In its first manifestation, 522 F.2d 1171 (10th Cir. 1975), we held that the school board unlawfully refused to renew Bertot's teaching contract because she exercised First Amendment rights. Accordingly, we reversed the jury verdict on that issue and ordered the district court to give Bertot declaratory and injunctive relief, including reinstatement. However, we also held, consistent with the verdict, that because the jury had found the defendants to have acted in good faith and without malice or retaliatory purpose, the individual defendants were immune from a § 1983 claim for backpay. 522 F.2d at 1184, Citing Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), Cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974). We left to the district court the consideration of the "good faith" defense's availability to the School District itself and to the individual defendants in their official capacities. ¹ 522 F.2d at 1185.

On remand, the district court held the good faith defense to apply to the School District on the backpay claim. Record, vol. 1, at 230. On appeal of that decision, a divided panel of this court, after reviewing the Monell decision, affirmed the district court's order. Because of the importance of the issues involved and the apparently contrary decisions of other circuits, we granted the petition for rehearing and heard arguments en banc.

II.

The Supreme Court in Monell "express(ed) no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 'be drained of meaning.' " 436 U.S. at 701, 98 S.Ct. at 2041, Quoting Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). ² The lower federal courts have thus been directed to fashion the "(i)nitial resolution of the question." 436 U.S. at 713-14, 98 S.Ct. 2018 (Powell, J., concurring). Since the Monell court observed that there is no basis for "distinguish(ing) between municipalities and school boards" in defining the application of § 1983, 436 U.S. at 696, 98 S.Ct. at 2038, we are clearly met with the duty to begin delineating the scope of that immunity. ³

Section 1 of the Civil Rights Act of 1871 the predecessor of § 1983 said nothing about official immunity. Its purpose, however, "was not to abolish the immunities available at common law." Butz v. Economou, 438 U.S. 478, 502 n.30, 98 S.Ct. 2894, 2908 n.30, 57 L.Ed.2d 895 (1978), Citing Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Determining the continuing validity of particular common law immunities in § 1983 actions is a judicial function, See Butz v. Economou, 438 U.S. at 501-02, 98 S.Ct. 2894; Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), requiring an analysis of the history and purpose of those immunities. The Supreme Court has read § 1983 as incorporating common law immunities when it finds that "the same considerations of public policy that underlie the common-law rule likewise countenance (the) immunity under § 1983." Imbler v. Pachtman, 424 U.S. 409, 424, 96 S.Ct. 984, 992, 47 L.Ed.2d 128 (1976). See generally Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).

Following the analytical framework set out by the Supreme Court, we begin by noting that the common law did Not recognize the same qualified immunity in damage actions for public bodies that it did for public officials personally when acting in good faith. Prior to 1871, federal courts often awarded monetary relief in suits against public bodies for violation of the federal Constitution. For example, as was stressed in Monell, the Supreme Court "vigorously enforced the Contract Clause against municipalities an enforcement effort which included various forms of 'positive' relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found." 436 U.S. at 681, 98 S.Ct. at 2031. To the extent that public bodies were afforded special protection, it was under the doctrine of sovereign immunity, as embodied in the Eleventh Amendment, a distinct theoretical construct. Where public bodies were amenable to suit, monetary damages were not precluded.

No state today including Wyoming insulates its school districts from backpay claims for wrongful dismissal under State law, and the teacher's right to recovery does not appear to depend on the existence of bad faith. See generally Jaffe, Suits Against Government and Officers: Damage Actions, 77 Harv.L.Rev. 209, 226 (1963); Annot., 22 A.L.R.3d 1047 (1968); 68 Am.Jur.2d Schools §§ 211-14 (1973). This universal policy is grounded in common law principles well understood when the Civil Rights Act of 1871 was under consideration. To be sure, that understanding had been manifested in breach of contract cases where teachers were wrongfully discharged prior to the end of their contractual terms. See N. Edwards, The Courts and the Public Schools 460-63, 466-68 (1933). Although Bertot's claim is for back salary during the period between her wrongful nonrenewal and the ordered reinstatement, the distinction between the breach of an ongoing contract and the unlawful failure to renew a contract does not affect a school board's qualified immunity from backpay claims. ⁴

We do not find in either the language or legislative history of § 1983 authority for the proposition that Congress intended to erode school boards' common law amenity to damage actions. The statute's language is unqualified: "(P)ersons (a category Monell determined included municipal bodies) shall be liable . . . ." We cannot impute to such unequivocal language an intention to provide public bodies with an immunity broader than that enjoyed at common law. Furthermore, the legislative history of § 1 of the Civil Rights Act, as discussed by the Supreme Court in Monell, indicates a legislative intention to provide federal court redress, under the authority of the Fourteenth Amendment, for previously immune municipal action. See 436 U.S. at 686-87, 98 S.Ct. 2018. As the Court stressed, in referring to the legislative intention that unconstitutional takings be redressable under § 1, "(I)t beggars reason to suppose that Congress would have exempted municipalities from suit, insisting instead that compensation for a taking come from an officer in his individual capacity rather than from the governmental unit that had the benefit of the property taken." 436 U.S. at 687, 98 S.Ct. at 2034. It would similarly beggar reason to suppose that Congress meant good faith individual immunity to preclude recovery altogether.

Regardless of the common law history discussed above, the School District argues that the rationale of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), applies to the facts of our case. In Wood, the Supreme Court undertook the necessary detailed analysis of the history and purpose of good faith immunity and found school board members acting in good faith personally immune from § 1983 damages. That immunity rests on two related grounds: First, "imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school." 420 U.S. at 319-20, 95 S.Ct. at 999, 1000. Second, capable candidates would not seek office because of the likely prospect of "heavy burdens upon their Private resources." 420 U.S. at 320, 95 S.Ct. at 1000 (emphasis added).

Although the Court explicitly cites the effect on private resources only in the second prong of the Wood rationale, the reference to "monetary costs" in the first prong is, under the posture of the case, a clear reference to the costs to the individual defendants. Indeed, in a later case, the Court described Wood as a discussion of the effects on decision-making of potential Personal liability. Hutto v. Finney, 437 U.S. 678, 699 n.32, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). The District argues, nonetheless, that imposition of liability on the School District would similarly deter creative and effective decision-making, since conscientious board members are as concerned about board liability as about personal liability. Indeed, the Second Circuit has accepted a similar argument. See Sala v. County of Suffolk, 604 F.2d 207, 210-11 (2d Cir. 1979). However, as a statement of purported psychological fact, we find that assertion unpersuasive. Other courts also have questioned the deterrent effect on individuals of potential entity liability. See, e....