White v. Flemming

• Decision Date: 07 May 1974
• Docket Number: Civ. A. No. 70-C-704.
• Citation: 374 F. Supp. 267
• Parties: Dorothy Ann WHITE, Plaintiff, v. John FLEMMING, City Attorney of the City of Milwaukee, Wisconsin, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

374 F. Supp. 267

Dorothy Ann WHITE, Plaintiff, v. John FLEMMING, City Attorney of the City of Milwaukee, Wisconsin, et al., Defendants.

Civ. A. No. 70-C-704.

United States District Court, E. D. Wisconsin.

May 7, 1974.

Joseph P. Balistrieri, Milwaukee, Wis., for plaintiff.

Joseph H. McGinn, Asst. City Atty., Milwaukee, Wis., for defendants John Flemming and The Milwaukee Police Department.

Karl M. Dunst, Asst. Corp. Counsel, Milwaukee, Wis., for defendant Christ T. Seraphim.

OPINION AND ORDER

REYNOLDS, Chief Judge.

In this action brought under the Civil Rights Act, plaintiff challenges the constitutionality of a Milwaukee ordinance (§ 90-25) which prohibits female employees of a Class "B" tavern from sitting with a male patron at the tavern's tables or booths.¹ The facts are short and simple. Plaintiff, a female employee of a Milwaukee Class "B" tavern, was arrested and charged with unlawfully sitting with a male patron at the tavern in which she worked all in violation of § 90-25 of the Milwaukee Code of Ordinances.

In her complaint plaintiff alleges that the Milwaukee ordinance is unconstitutional in that it violates the first amendment of the Constitution; that it deprives the plaintiff of privileges and immunities guaranteed by the Constitution; that it denies her of equal protection of the law; and that it is a violation of the due process clause of the fourteenth amendment. In her prayer for relief, plaintiff requests both a declaration of unconstitutionality and the issuance of an injunction. Jurisdiction is based on 28 U.S.C. §§ 1343, 2201, and 2202, and 42 U.S.C. § 1983.

At the commencement of this action, plaintiff requested the issuance of a temporary restraining order. I denied such relief at that time, finding first that the possibility of prosecution did not require interference with the state court proceeding, and second, that the likelihood of probable success was not sufficient. Subsequent to this, plaintiff was tried in the Milwaukee County Court and the charges were dismissed. Defendants then moved for summary judgment on the ground that the cause of action was moot. I denied that motion in White v. Flemming, 344 F.Supp. 295 (E.D.Wis.1972). Defendants have now moved to dismiss the action, and I deny this motion as well, except as to the defendant Milwaukee Police Department.

First of all, it has recently become clear that the Milwaukee Police Department is not a "person" within the meaning of 42 U.S.C. § 1983 and, therefore, is not a proper party to this suit. The Milwaukee Police Department is not an independent entity but a division of the government of the City of Milwaukee. Previously, the Court of Appeals for the Seventh Circuit formulated a bifurcated approach to the ambit of § 1983. In Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961), and Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969), it was held that municipalities were not liable for damages under § 1983, but that they were proper defendants under § 1983 where equitable relief was sought. In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 38 L.Ed.2d 109 (1973), this theory was laid to rest. The Supreme Court stated at 513:

"We find nothing in the legislative history discussed in Monroe Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, or in the language actually used by Congress, to suggest that the generic word `person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, `Congress did not undertake to bring municipal corporations within the ambit of § 1983, id., at 187, they are outside of its ambit for purposes of equitable relief as well as for damages. * * *"

Therefore, on the basis of the Supreme Court's recent ruling in City of Kenosha v. Bruno, supra, the action against the Milwaukee Police Department must be dismissed.

I turn now to the named defendants: John Flemming, City Attorney of the City of Milwaukee; and Christ T. Seraphim, Judge of the County Court of Milwaukee County. Suit against these parties is not barred by City of Kenosha v. Bruno, supra.

Firstly, defendants assert that the complaint should be dismissed as against them for lack of jurisdiction because plaintiff has no absolute right to work in a tavern. Defendants' argument misses the point. Plaintiff does not have to show that she has a right to work in a tavern for jurisdiction under 28 U.S.C. § 1343.

Secondly, it is quite clear that the County Court judge and the City Attorney are not immune from suit under the 1871 Civil Rights Act, 42 U.S.C. § 1983, when equitable relief against an allegedly unconstitutional city ordinance is sought. Littleton v. Berbling, 468 F. 2d 389 (7th Cir. 1972).

Thirdly, defendants assert that the complaint fails to state a cause of action. I disagree. An action, especially under the Civil Rights Act, should not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of their claims. Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970), cert. denied 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed. 2d 91 (1970). See also Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967); York v. Story, 324 F.2d 450 (9th Cir. 1963), cert. denied 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); and 2A Moore's Federal Practice ¶ 12.08 at 2271-2274 (4th ed. 1974).

What is at issue here is not per se a regulation of the liquor industry but an ordinance which circumscribes the conduct of an individual in a tavern: conduct which would be legal in any other context but is herein made illegal solely because of the sex of the individual. I find that plaintiff has stated a cause of action, and deny the defendants' motion to dismiss.

Although the plaintiff has not filed a motion for summary judgment, I have the power to enter such judgment since the plaintiff is clearly entitled to prevail, and there is no genuine issue of material fact requiring a trial. 3 Barron and Holtzoff, Federal Practice and Procedure, § 1239 (Wright ed. 1958); Proctor & Gamble Independent Union of Port Ivory, N.Y. v. Proctor & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), cert. denied 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963); Pitts v. Knowles, 339 F.Supp. 1183 (W.D.Wis. 1972), affirmed 478 F.2d 1405 (7th Cir. 1973); Weber v. Weinberger (E.D.Wis., decided March 19, 1974). This action is therefore ripe for resolution as a summary judgment for plaintiff. I grant summary judgment to the plaintiff and herein declare § 90.25 of the Milwaukee Code of Ordinances to be unconstitutional.

Since the ordinance prevents the solicitation of drinks by females and not by males, plaintiff's complaint clearly shows the existence of a classification based on sex. In the absence of a fundamental interest and/or a suspect classification,² the question becomes whether the legislative distinction is arbitrary and without rational relationship to a legitimate legislative objective. As the United States Supreme Court stated in Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971):

"* * * this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Citations omitted The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U. S. 412, 415 40 S.Ct. 560, 561, 64 L. Ed. 989 (1920) * * *."³

I must therefore inquire whether defendants have shown that the ordinance in question is rationally related to a legitimate governmental interest. Identifying the city's purpose in passing this ordinance is not an easy task. Here defendants argue that the bar-girl ordinance was designated to prohibit women employees from fraternizing with male customers in a tavern because said fraternization leads to several evils; namely, solicitation of drink orders, loitering for the purpose of perpetrating or planning immoral acts, and commission of fraud on the patrons.

In other words, defendants contend that the prohibition of female employees from sitting at tables with male patrons is designed to achieve the following results: (1) less solicitation of drink orders by female employees; (2) less planning of and, assumably, consummation of immoral acts by female employees; and (3) less perpetration of fraud on the tavern's clientele by female employees. Defendants have presented nothing to support these conclusions. In addition, defendants do not advance any reasons to show why the elimination of solicitation, immorality, and fraud is any more attainable by regulating the service of drinks by women rather than by men.

The objectives of reducing the planning of immoral acts, the commission of fraud, and the bothersome solicitation of drinks are legitimate legislative objectives. What is crucial is that defendants have not shown that the bar-girl ordinance advances their objectives in a rational manner consistent with the dictates of the equal protection clause. Under normal circumstances, I would have given defendants the opportunity to present more substantive evidence in support of the ordinance. Here, however, I find the ordinance to be so irrational, invidious, and patently arbitrary that I cannot perceive of any possible showing that the ordinance is rationally related to a legitimate government interest. That is, I cannot...