dissenting:
States are insulated from civil rights damage actions by reason of the immunity granted by the Eleventh Amendment to the United States Constitution. While other “municipalities”, such as school districts, are not so protected, it is my view that it is both improper and impracticable to hold, as the majority does here, that these governmental entities are to be held absolutely liable without regard to fault. Such a holding denies recognition that local governmental entities are almost universally “strapped” for funds by reason of strict tax levy limitations and that many of the officials serving do so at substantial personal and financial sacrifice.
Absolute immunity has been accorded to judges, legislators, and prosecutors. See: Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Qualified immunity is available to other governmental employees, including municipal or state employees, in the form of a “good faith” defense which insulates them from liability in actions seeking damages for constitutionally prohibited conduct. See: Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Procunier v. Navarette, 434 U.S. 555, 98-S.Ct. 855, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Smith v. Losee, 485 F.2d 334 (10th Cir. 1973) (en banc), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974). Cf. O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). By denying a “good faith” defense to the political subdivisions of the various states comprising this Circuit, the majority has, in effect, exposed every city, town and village to absolute liability and its attendant financial repercussions.
In my view, we cannot be insensitive to the financial plight of local governmental bodies. Today’s decision needlessly expands individual recovery at the expense of our already overburdened taxpayers. Thus, municipalities and local agencies are deprived of any safeguards from damages which could significantly threaten municipal treasuries, even though their actions are taken in good faith and in reliance on opinions by this Court.
In our first opinion in this case, Bertot v. School District No. 1, 522 F.2d 1171 (10th Cir. 1975), we observed:
While we are satisfied that the paramount reason for the non-renewal was the impermissible consideration of Mrs. Bertot’s activities in connection with the paper, we cannot hold that it was beyond reason to find that the non-renewal was in good faith. Under the Wood test for the immunity, the record does not impel the conclusion that the defendants acted with a malicious intention to cause a deprivation of constitutional rights or other injury. Further, at the time of the 1971 non-renewal of Mrs. Bertot’s contract, Roth [Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548] and Sindermann [Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570] had not been decided and our controlling decision was Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 . (1970). [An en banc decision of this Court]. There a similar constitutional claim of unlawful termination of an untenured instructor’s employment because, inter alia, of founding an independent faculty-student publication was rejected for failure to state a claim. Id., at 1328-1329. Hence, we cannot say that the defendants knew or reasonably should have known that their actions would violate constitutional rights. Wood v. Strickland, supra, 420 U.S. at 322, 95 S.Ct. 992, . . . . Under these circumstances we feel that the verdict and finding on the good faith immunity should not be disturbed as to the individual defendants, in their individual capacities. *255522 F.2d 1171 at pp. 1184-1185. [Emphasis supplied].
Although we there remanded the case to the District Court for consideration of whether a “good faith” defense was available to the School District itself and to the individual defendants in their official capacities, we were obviously impressed with the fact that neither the School District or the individual defendants in their official capacities could have known or reasonably should have known that their actions would violate Bertot’s constitutional rights. In my view, the School District, and its members acting in their official capacities, “should not be charged with predicting the future course of constitutional law” — a matter which has troubled the Supreme Court at various times. Owen v. City of Independence (Owen II), 589 F.2d 335, 338 (8th Cir. 1978), cert. granted,-U.S.-, 100 S.Ct. 42, 62 L.Ed.2d 28 (1979).
Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) speaks extensively of the doctrine of stare decisis and its importance in cases such as that presented here. However, the majority opinion ignores the doctrine. Even though Monell does not deal with the issue of its retroactive application, the problem did not escape the attention of Mr. Justice Rehnquist, who, in dissent, observed that the doctrine of municipal immunity enunciated in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 “has protected municipalities and their limited treasuries from the consequences of their officials’ failure to predict the course of this Court’s constitutional jurisprudence”. Id. at 724, 98 S.Ct. at 2038. Mr. Justice Rehnquist, in my view, most pertinently addressed the drastic prospect of retroactive application of Monell, to-wit:
The Court’s assertion that municipalities have no right to act “on an assumption that they can violate constitutional rights indefinitely,” ante, at 700, is simply beside the point. Since Monroe, municipalities have had the right to expect that they would not be held liable retroactively for their officers failure to predict this Court’s recognition of new constitutional rights. No doubt innumerable municipal insurance policies and indemnity ordinances have been founded on this assumption, which is wholly justifiable under established principles of stare decisis. To obliterate those legitimate expectations without more compelling justifications than those advanced by the Court is a significant departure from our prior practice.
436 U.S. 658 at p. 717, 98 S.Ct. 2018 at p. 2049, 56 L.Ed.2d 611.
Even though the majority opinion is grounded on “equitable principles relating to backpay”, it is clear to me that the relief awarded Bertot is simply that of compensatory damages. Thus, the majority’s reliance on Gallagher v. Evans, 536 F.2d 899 (10th Cir. 1976), assuming that it stands for the proposition that equitable relief is not precluded by a “good faith” defense, is misplaced. It is, of course, my view that damages should never be awarded against a municipality or other political subdivision for violation of constitutional rights in the absence of a showing of bad faith.
Turpin v. Mailet, 579 F.2d 152 (2nd Cir. 1978) (en banc) (Van Graafeiland, J., dissenting), vacated, 439 U.S.-974 (1978), modified on remand, 591 F.2d 426 (2nd Cir. 1979) (en banc), observed:
The choice of remedial relief should not be exercised in a factual vacuum. Before we set out on a laudable pursuit of justice, we should have some notion of where we are going. “There can be no wisdom in the choice of a path unless we know where it will lead.”44 From the earliest days of our country, men of wisdom have expressed concern over the power of the judiciary to impose financial burdens upon state and local governments.45 This concern was one of the main reasons for the enactment of the Eleventh Amendment.46 Moreover, the proposed Sherman Amendment to § 1983, which would have allowed recovery against municipalities, was rejected in large part because of the devastating effect these damages might have had on *256municipalities.47 In recent years, the Supreme Court has expressed increasing concern about the effect of lower court decisions on the financial stability of communities and the consequent impairment of their ability to render essential governmental services.48
As Justice Blackman did in City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364, we “question the nonchalance with which the Court put aside the question of remedy.”
579 F.2d 152 at p. 180. [Footnotes omitted].
I am in complete agreement with these observations made by Chief Judge Seth, contained in the original panel opinion in this case:
The reasons for the application of the doctrine of qualified immunity are as compelling when considering the members individually as they are to the evaluation of the members acting collectively It is apparent that conscientious board members will be just as concerned that their decisions or actions might create a liability for damages on the board or the local entity as they would on themselves. The restriction on the exercise of independent judgment is the same. The individuals are the same in whatever capacity, their good faith is the same in each capacity whether it is individual good faith, board good faith when considered collectively, or official capacity good faith.
Bertot v. School District No. 1, 76-1169 (10th Cir., filed November 15, 1978).
I would unhesitatingly affirm the District Court.
SETH, Chief Judge, joins in this dissenting opinion.