The Volokh Conspiracy
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From Lull v. County of Sacramento, decided Tuesday by Magistrate Judge Jeremy Peterson (E.D. Cal.):
Plaintiff claims that defendants engaged in retaliation forbidden by the First Amendment when they refused to let him pay some of his property taxes with crumpled one-dollar bills emptied from garbage bags, which he brought to the Sacramento County Department of Finance office on tax day. Defendants maintain that, although they do accept some cash payments and had previously accepted one from plaintiff, they refused the payment at issue because it did not comply with the county's requirements for cash payments and because they did not have the resources to process it. Plaintiff disputes that defendants' rejection of his payment was motivated by these considerations, claiming instead that defendants sought to suppress his protest, but he offers scant evidence of this. I recommend that the court grant summary judgment for defendants….
In 2017, plaintiff was behind on his property tax payments and was under pressure from his mortgage holder to pay the taxes. He needed to pay by February 6 to avoid either a fee, a higher interest rate, or default. Plaintiff sought to make his tax payment in one-dollar bills, which he alleges was intended as a form of protest. Before attempting such a cash payment, he consulted with the county attorney, Keith Floyd. Floyd told him that coins were not an acceptable form of payment, but dollar bills would be acceptable under certain conditions, namely:
- All tendered bills would have to be in a readily countable condition. This means the bills must be flat when presented. No folded, crinkled, wadded up, rolled, or otherwise altered bills would be accepted.
- The payment would have to be offered in person at an agreed upon date and time. The Department of Finance needs to ensure that it has adequate staffing resources available to count the money during regular business hours while you or your representative remain present during the process.
- The Department of Finance would allow for one recount if the counted total appeared to be less than the tax bill amount.
Plaintiff arranged with Floyd to pay with 16,400 one-dollar bills on February 6, 2017.
When plaintiff came to the Department of Finance's public counter at 8:10 a.m., the 16,634 bills that he presented did not comply with the requirements that Floyd had laid out. Specifically, some of the bills were folded and crumpled, not flat. Plaintiff dumped them from garbage bags onto the counter, spilling some onto the floor. He also taped fake bills to the counter and spoke about his protest, recording it on video. Despite the condition of the bills, the county still accepted them as payment. Processing plaintiff's payment took 35 hours of staff time and involved six staff members.
On February 9, Floyd sent plaintiff a letter confirming that plaintiff had made a partial payment on February 6 and stating that he still had an outstanding balance, which was due by April 10, 2017. The letter notified plaintiff that "the Department of Finance's duty to serve the rest of the public through its normal budgeted operations prohibits accepting any further payment attempts in single, folded dollar bills. Placing a large pile of dollar bills on the Department of Finance public floor area also creates a significant security risk."
Department of Finance officials recognized the need for a policy on cash acceptance, in part because of the burden of processing plaintiff's payment on February 6. Thus, in addition to the guidance provided by the county attorney in advance of the February 6 payment, Ben Lamera, the director of finance, implemented an informal cash acceptance policy for the Department of Finance sometime prior to April 10. The policy stated:
- Bills must be readily countable (i.e. not folded, crinkled, or otherwise manipulated).
- Large quantities of bills or coins may not be placed on the public counter, floor, or any other place within the public area. The Tax Collector has the right to refuse the payment in coins of property taxes, penalties and interest.
- Large quantities of bills must be tendered by the customer in stacks that can be quickly placed in Department counting machines.
- The limit for non-tax payments made in coin is approximately $150 at a location where there is an automated coin counter and $5 at locations without one.
- All counting must occur at the public counter with the customer present.
- For payments involving significant quantities of cash, transactions must be able to be completed in a reasonable amount of time, during regular business hours. The county does not accept partial payments for property tax payments. Any counted cash must be returned to the customer if counting of tendered cash is not completed by the close of business, unless the customer offers to make a non-property tax partial payment.
On April 10, 2017, the state tax deadline, plaintiff came to the Department of Finance's public counter without an appointment and attempted to make a tax payment with folded and crumpled one-dollar bills contained in two trash bags.
Plaintiff recorded his appearance on video and spoke with members of the public and county employees. While he was in line, a security officer approached him and asked that he not dump money on the floor. The officer indicated that he did not know whether plaintiff's form of payment would be accepted. Defendant Mark Aspesi, a senior accounting manager, was working at the counter and refused to accept plaintiff's payment. There was a line of customers stretching out the door because it was tax day. Aspesi later testified that he refused the payment because the office's staff was busy and it would have taken a long time to count so many dollar bills. Plaintiff left without paying his taxes….
At issue is a single claim of First Amendment retaliation. To prevail, plaintiff would need to show that: "(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action." …
As for the first required element, plaintiff offers little to back up his claim that he engaged in constitutionally protected activity. Speech is protected by the First Amendment, but making a payment in a particular form is conduct, not speech—and conduct receives far more limited First Amendment protection. Although plaintiff apparently intended his choice of a form of payment—crumpled and folded one-dollar bills presented on tax day—to have an expressive element, it might merit no First Amendment protection at all….
But even if I accept the questionable proposition that the relevant activity was protected by the First Amendment, plaintiff has failed to offer evidence sufficient to satisfy the third element of retaliation: he has not shown that there was a substantial causal relationship between his purported constitutionally protected activity and the county's adverse action—its refusal to accept his second payment. On the other hand, defendants point to copious evidence in the record that plaintiff's form of payment was refused because the bills were not readily countable and could not be processed that day….
It is telling that both times that plaintiff brought trash bags full of money to the county office, he was permitted to engage in speech. He was able to film his interactions on April 10. He and his videographer were permitted to shove crumpled dollar bills through the service window, and he was able to speak out on video to county employees and members of the public. The evidence does not show that the county sought to shut down his protest, but rather that plaintiff ignored reasonable restrictions on cash payments, of which he had advance notice, and that this led to the rejection of his payment. Nothing in the record indicates that plaintiff's payment would have been rejected had his bills been stacked and readily countable….