Eslinger v. Thomas

• Decision Date: 28 March 1973
• Docket Number: No. 72-1542.,72-1542.
• Citation: 476 F.2d 225
• Parties: Victoria Lamonte ESLINGER, for herself and for all other women similarly situated, Appellants, v. Lovick Oliphant THOMAS, as Clerk of the Senate of South Carolina, Erie Elias Morris, Jr., as President ex officio of the Senate of South Carolina, and as a representative of the Senators of South Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

476 F.2d 225 (1973)

Victoria Lamonte ESLINGER, for herself and for all other women similarly situated, Appellants, v. Lovick Oliphant THOMAS, as Clerk of the Senate of South Carolina, Erie Elias Morris, Jr., as President ex officio of the Senate of South Carolina, and as a representative of the Senators of South Carolina, Appellees.

No. 72-1542.

United States Court of Appeals, Fourth Circuit.

Argued December 5, 1972.

Decided March 28, 1973.

Laughlin McDonald, Columbia, S. C. (Charles Morgan, Jr., Norman Siegel, Emily Carssow, Morris Brown and Neil Bradley, Atlanta, Ga., on brief), for appellants.

Randall T. Bell, Asst. Atty. Gen., and E. N. Zeigler, Florence, S. C. (Daniel R. McLeod, Atty. Gen., Hubbard W. McDonald, Jr., Asst. Atty. Gen. of South Carolina, and Paul M. Moore, Spartanburg, S. C., on brief), for appellees.

Before WINTER, CRAVEN and FIELD, Circuit Judges.

WINTER, Circuit Judge:

Victoria Lamonte Eslinger sued for herself and other women similarly situated, alleging that she had been denied temporary employment as a page in the South Carolina Senate solely because of her sex.¹ She prayed declaratory and injunctive relief on behalf of all temporary and permanent employees, as well as damages. The district court found as a fact that there was no discrimination on the basis of sex with regard to permanent employees. Although it found that employment as a page was denied her solely because of her sex, the district court denied her any relief. Eslinger v. Thomas, 340 F.Supp. 886 (D.S.C. 1972). In large part, we disagree and remand with directions to grant equitable relief.

I.

In November, 1970, plaintiff, a law student at the University of South Carolina, was recommended by a South Carolina state senator for appointment as a page for the senate for the 1971 session of the South Carolina General Assembly — a species of temporary employment. Subsequently, defendant Thomas, Clerk of the Senate, informed her that she could not be employed as a page because she was female. Her informal appeals to the Governor and Lieutenant Governor of South Carolina failed, as well as her sponsoring senator's intercession with the clerk.

The district court found that, at the time plaintiff sought employment, pages were usually college students and a large number were law students at the University of South Carolina Law School. Pages performed various duties assigned by senators, the clerk and other employees of the senate, including running errands, both personal and official, for senators, preparation and distribution of Acts, proofreading, indexing, bookkeeping, obtaining food and drink for the senators, assisting with committee records, relaying messages to senators, attending committee meetings, acting as assistants and helpers to clerks of various committees, and otherwise taking care of senators' needs.

Pages are temporary employees; they work only for the months the senate is in session. The positions are quite attractive to students. Although they are not overpaid, working hours are not long, working hours may be adjusted to suit the convenience of the employee, and pages have the opportunity to view the lawmaking process and to meet state officials.

Suit was filed in February, 1971. Several months thereafter, the South Carolina Senate adopted Resolution S. 525, establishing new classifications and duties of part-time employees formerly known as pages.² Under this resolution, females may be employed as "clerical assistants" and "committee attendants," but not as "Senate pages." As a condition of employment, a female is also required to furnish a written statement from her parent or guardian assuming responsibility for her transportation, safety and supervision to and from her local residence and the senate and at her local residence. At the time of trial, three women had been employed pursuant to this resolution, but plaintiff did not apply for such employment, insisting on her right to be a "Senate page."

After finding that the suit was not barred by the eleventh amendment, the district court found that defendants Morris, the Lieutenant Governor of South Carolina and President ex-officio of the Senate of South Carolina, Brown, the President Pro Tempore of the Senate, and all other senators were immune from suit as state legislators under the speech or debate clause (Art. I, § 6, cl. 1, U.S.Constitution). The Clerk of the Senate, defendant Thomas, was held not immune from suit under that clause. The district court determined that the custom of the South Carolina Senate to deny females positions as pages, prior to the adoption of Resolution S.525, denied plaintiff her "Constitutional right to seek employment and be employed." The district court concluded, however, that the constitutional rights of female citizens were not violated by the superseding provisions of S.525, and that the prohibition against females running personal errands for senators (one practical effect of the resolution) was not shown to be "arbitrary or wanting in rational justification."

In addition, the district court found that the claim for monetary damages against Morris and Brown was barred under the speech or debate clause; the clerk was found not liable for damages because he acted in good faith.

Finally, the district court found that the senate did not discriminate on the basis of sex with regard to permanent employees. Although the contention that such discrimination existed was not abandoned on appeal, it was not vigorously pressed; and since our examination of the record demonstrates that the finding was not clearly erroneous, we will not consider the issue further.

For the reasons stated below, we agree that damages are not recoverable by plaintiff, but we think that she and the class she represents are entitled to declaratory and equitable relief.

II.

It is clear that the Lieutenant Governor, the President Pro Tempore and all state senators joined as defendants in this suit are immune from suit, and liability for damages. The protection of the speech or debate clause of the Constitution of the United States has been extended to state legislators. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The scope of the privilege granted is not unlimited, but a senate resolution is protected to the same degree as words spoken in actual debate. Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The passing of acts and resolutions is the very essence of the legislative process, and any attempt to punish a legislator for such actions would manifestly tend to "control his conduct as a legislator," in derogation of the clause. Gravel, supra at 618, 92 S.Ct. at 2623. See United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); Tenney v. Brandhove, supra.

We reject plaintiff's argument that defendants waived their immunity under the speech or debate clause by their failure to allege it formally in their answers to the complaint and amended complaint. The issue was raised during trial. All parties requested and were given leave to file post-trial memoranda. While we do not have their briefs in the record, we presume that they discussed the issue, because it was a basis of decision by the district court. In any event, both the possibility and validity of an immunity defense in this case were apparent from the beginning, and plaintiff has shown no prejudice as a result of the timing of assertion of the defense. We can only conclude that assertion of the defense was sufficiently timely that it should be considered and where, as here, it is meritorious, it should be sustained.

The clerk was acting in good faith and, we agree, should not be liable for damages. His position was not unlike that of the Board of Visitors of the University of Virginia, whose actions in maintaining an all male state college did not subject them to liability under § 1983:

The defense of official immunity should be "applied sparingly in suits brought under § 1983". . . .

Nevertheless, it should be available to public officials who act in unquestioned good faith and in perfect accord with long standing legal principle only to find their discretionary conduct declared illegitimate under a later constitutional interpretation. In an analysis of the immunity doctrine, Judge Learned Hand stated that its purpose is to encourage conscientious public officials by not "exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors". . . . The admissions policy formulated by the University Board of Visitors and acquiesced in by the other defendants was in contravention of no clear constitutional principle when adopted. We hold that plaintiffs are not entitled to damages under § 1983.

Kirstein v. Rector and Visitors of University of Virginia, 309 F.Supp. 184, 189 (E.D.Va. Three-Judge Court, 1970).

Although the clerk may have acted with little sensitivity to a swelling tide of legal and social precedent rapidly eroding the bastion of male chauvinism, he acted in the light of a long-standing, albeit vaguely defined, "custom" of the South Carolina Senate barring female pages. He did no more, or less, than what had always been done. "While high state officials may be expected to be reasonable men, they neither can nor should be expected to be seers in the crystal ball of constitutional doctrine." Westberry v. Fisher, 309 F.Supp. 12, 17 (D.Me.1970). The clerk should not be "charged with predicting the future course of constitutional law." Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967).

Good faith alone may not always be enough to avoid liability for damages. Certainly there is nothing in § 1983, or the fourteenth amendment to suggest that an improper motive is a requirement for a federal cause of action. Instead, § 1983 "should be read against the background...