# Melvin T. Smith v. Ferron C. Losee

> Court of Appeals for the Tenth Circuit · August 22, 1973 · 485 F.2d 334

URL: https://www.frixlaw.com/law-library/cases/9459893

## Case

- **Full name:** Melvin T. SMITH, Appellee, v. Ferron C. LOSEE Et Al., Appellants
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** August 22, 1973
- **Citations:** 485 F.2d 334
- **Precedential status:** Published
- **Opinion:** Concurring in part by Barrett
- **Judges:** Lewis, Hill, Seth, Holloway, McWilliams, Barrett, Doyle
- **Cited by:** 88 later opinions in the Frix Law Library

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## Opinion text

BARRETT, Circuit Judge
(concurring in part and dissenting in part).
I concur in the result reversing the damage judgments as to appellants Baekman, Allred, Baker, Snow, Morrill, Tanner, Ure, Riddle and Richards, individually, while serving as members of the Utah Board of Education, and dissent from the opinion insofar as it affirms the trial court awards in favor of Smith and against President Losee and administrators Barnum and Peterson in actual damages of $4,100.00 and punitive damages against Losee and Barnum, respectively, in the amount of $2,500.00.
I agree with much of the learned reasoning and the analysis of the various legal factors set forth in the majority opinion. However, I am extremely fearful that we have created a precedent which will ultimately permit the faculty of our educational institutions to “call all of the shots” from top to bottom. Not only does this possibility run contra to every principle I have heretofore known in fact and in law, but from a philosophical and historical basis it cannot pass muster. It is because we have now ventured into a previously uncharted sea (insofar as this court is concerned) that I must indulge more space and verbage than I would otherwise desire.
Congress, in the enactment of the Civil Rights Act, intended that the courts construe their provisos liberally in order to protect federal constitutional rights, privileges and immunities. Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961). 42 U.S.C.A. § 1983 was derived from the Ku Klux Klan Act. It was intended to protect every citizen of the United States or other persons within its jurisdiction against such deprivations by any other person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory” rendering the offender “ .. . . liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Obviously, Congress delegated to the courts the determination of “ . all necessary and appropriate remedies.” Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 , 90 S.Ct. 400 , 24 L.Ed.2d 386 (1969).
The majority opinion recognizes that there is little precedent for money damage judgments arising out of Civil Rights suits. Most of the relief granted is in the nature of injunctive or declaratory relief. A close examination of the *346 reported damage judgment award eases conveys a clear impression that the condemned acts were malicious in nature and performed in reckless and wanton disregard for the known rights of others. A person acting so abusively is not entitled to any immunity or privilege from a money judgment award. Such acts are maliciously motivated. That, I suggest, is the standard applied by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 , S.Ct. 710, 11 L.Ed.2d 686 (1964), even though the action there was one of libel. There the Court held that the First Amendment shields a newspaper from damage liability unless the publication is undertaken with actual malice. I see no justification for application of any less stringent standard of proof against the defendants-appellants in the case at bar.
I concur in the result reached in the majority opinion reversing the trial court judgments against each of the nine members of the Utah State Board of Education. Under Utah law the doctrine of sovereign immunity grants immunity to those officers and employees who perform acts within the scope of their official authority, so long as the acts are done without malice. Bingham v. Board of Education of Ogden City, 118 Utah 582 , 223 P.2d 432 (1950); Logan City v. Allen, 86 Utah 375 , 44 P.2d 1085 (1935). In Bingham, supra, the Court stated:
The maintenance of a system of public schools within the state is a matter of statewide interest. Boards of education are created by the legislature to perform the function of educating the children residing in the state. As agencies of the state, their activities are restricted to the duties and powers specifically granted to them. They act without profit, are supported by taxes, and act solely in a governmental capacity. The legislature has not imposed responsibility upon them and this court cannot adopt a refined distinction between two torts, one sounding in mere negligence and one sounding in aggravated- negligence and by such a judicial construction . impose liability in the other. (Emphasis ours) 223 P.2d at 437, 438 .
After the Board concurred in Smith’s contract non-renewal, Smith asked the Board to provide him a hearing. The Board, with Smith’s approval, made a special trip to Dixie College to hear him out. The last minute Smith declined to appear because he had been advised by someone that he should have counsel. The Board thereafter agreed to hear Smith out at a meeting to be held in Salt Lake City. Smith had agreed to appear and had requested the hearing. Again, Smith failed and neglected to appear before the Board. While it is unlikely that the Board would have reversed its position concerning Smith’s non-tenure, non-renewal status, still the fact remains that Smith, after requesting a hearing before the Board, displayed bad faith in not availing himself of the hearing opportunities afforded him. That alone should foreclose his claims.
In those states in our Circuit where the doctrine of sovereign immunity has not been abrogated insofar as official acts of members of a school board or board of education — trustees or educational administrators is concerned — I believe that the rule laid down in State Highway Commission of Wyoming v. Utah Construction Company, 278 U.S. 194 , 49 S.Ct. 104 , 73 L.Ed. 262 (1929) protects them from any personal liabilities because they serve as the state’s alter ego and, of course, the state is not a “person” subject to a Civil Rights suit under § 1983. Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). I am aware, however, that certain language in Harris v. Tooele County School District, 471 F.2d 218 (10th Cir. 1973), casts considerable doubt on the efficacy of the state sovereign immunity doctrine in federal actions for redress under the Civil Rights Act. I observe, however, that we may have placed form over substance in avoiding the immunity challenge head-on by distinguishing in Williams v. Eaton, supra, the immunity to which the individual members of the University of *347 Wyoming Board of Trustees were granted simply because they were sued in their official capacities and not individually while serving in those official capacities. This, to me, is form over substance.
I do not believe that the federal Civil Rights Act overrides the sovereign immunity grants recognized and nurtured in the wisdom of the legislative bodies and courts of the respective sovereign states, as guaranteed them by the federal Constitution (those powers not expressly granted to the United States are reserved to the states) and the protective armor of the Eleventh Amendment. In those states within our Circuit where the sovereign immunity doctrine is viable in relation to Boards of Education, school administrators, and other public officials, I would come down on the side of the states regardless of the fact that the action is based on the federal Civil Rights Act. But because there is no uniformity throughout the states in our Circuit on the application of and the extent of the doctrine of sovereign immunity, I am directing my future remarks relating to the basis for reversal by the majority opinion pertaining to the damage judgment awards entered against the individual members of the Utah State Board of Education to the doctrine of official privilege.
The majority opinion holds that these individuals, as Board members, have available a privilege defense which “must lie somewhere in the area between that of legislators (absolute) and of police officers (good faith and probable cause).” I recognize the difficulties' in this treacherous area of “balancing” rights, but I suggest that we can and should “pin down” that privilege not only as it applies to the members of the State Board of Education, but with equal application to the appellants President Losee and administrators Barnum and Peterson of Dixie College.
First, I cannot stress strongly enough that each of these defendants-appellants were at all times serving in their official capacities exercising a delegated power of the sovereign, entirely discretionary in nature under statutory authority. We recognized the significance of such authority in Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967). The crux of this and other like decisions is that acts which are discretionary in nature — -as distinguished from those which are ministerial in nature — must, of necessity, be entitled to a governmental immunity of a limited nature. For a thorough discussion of what constitutes “public offices” with attendant attributes, see State ex rel. McIntosh v. Hutchinson, 187 Wash. 61 , 59 P.2d 1117 (1936). In my judgment the same standard of official privilege immunity granted members of the Board of Education is applicable to the appellants Lo-see, Barnum and Peterson. They are immune from Civil Rights damage judgments unless they perform their discretionary functions relative to teacher employment, assignment, tenure and contract renewal, with malice. The majority opinion does not discuss what, if any, privilege Losee, Barnum and Peterson may be entitled to because it concurs with the trial court holding that each of the three acted maliciously and wilfully in disregard of Smith’s rights. The practical effect of leaving the standard of privilege undefined insofar as it relates to those administrators charged by law to exercise discretion in the subject areas to inform and advise the Board is that henceforth I am fearful that such persons shall no longer serve the intended public interest. At the risk of personal money judgments, they shall not recommend against tenure or non-renewal regardless of their good faith belief that certain persons should not be retained on the faculty. I simply cannot be a party to such a result. Neither Perry v. Sindermann, 408 U.S. 593 , 93 S.Ct. 2694 , 33 L.Ed.2d 570 (1972) nor Board of Regents of State Colleges v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972) in anywise addressed the subject of damage awards relative to teacher contract rights. Those cases held that a non-tenured teacher’s con *348 tract non-renewal could not be denied on a basis that invaded a constitutionally protected interest such as freedom of speech. Nothing in them indicates that the contracts could not be terminated (not renewed) for entirely arbitrary reasons which did not involve the invasion of such rights. In this sphere, I utterly reject the contentions that “academic freedom” is such an all-encompassing guarantee that it precludes considerations of both subjective and objective factors in considering whether a teacher’s contract should be renewed.
It is ridiculous to expect that those who are charged with the responsibility of hiring and retaining teachers for our children will not consider personal attitudes, demeanor, and teaching philoso-. phy in relation to their compatibility with the pedagogical aims of the institution. The effect of diluting the authority of or shadowing the limits of the variety of these considerations — both subjective and objective in nature — will most certainly have its impact upon those school officials that boards of education have historically relied upon to advise on the teachers’ merits for tenure status or termination for cause after tenure is achieved.
A board of education and authorized administrators must apply both objective and subjective tests and factors in the area of teacher employment, assignment and dismissal. Hetrick v. Martin, 480 F.2d 705 (6th Cir., June 15, 1973); Moore v. Board of Education of Chidester School District No. 59, Chidester, Arkansas, 448 F.2d 709 (8th Cir. 1971).
I dissent from the majority opinion’s affirmance of any damage awards in favor of Smith against President Losee and Administrators Barnum and Peterson. I would hold them harmless and would assess all costs to Smith. The absence of a governing statute such as the federal Hatch Act or a state Merit System delineating political activities of education personnel (who are, I recognize, exempt under most of those statutes), does not alter Losee’s legitimate good faith concern for the “good” of Dixie College. He was well aware that the “backlash” created over the Dixie Leavitt matter might well affect his requests for necessary funding from the Utah legislature on behalf of Dixie College. In my judgment Smith, as a member of the Dixie College faculty, was subject to reasonable restrictions on his First Amendment exercises if Losee and others charged with the administration of the college honestly and in good faith believed that his actions would ultimately do harm to the college. Those who would look askance at any consideration of the “subjective” test in the exercise of the discretionary duties imposed by law upon Losee, Barnum and Peterson do not move me by the use of the “chilling effect” terminology. Someone must run the railroad. If the engineers operate it in a malicious manner and in reckless disregard for the rights of others, they should be punished and discharged. I refuse to conclude that the evils of creating the “chilling effects” in the areas of First and Fourteenth Amendment rights prohibits or restrains any of the defendants-appellants before us here to formulate good faith judgments relative to Smith’s tenure and contract renewal status predicated upon his known methods and philosophy. There are real-life, day-to-day problems facing school boards and administrators which the courts are not able to cope with. Dismissal of a teacher with an expectancy of re-employment by college administrators because the teacher used profane language in speeches critical of the university administration and policies has been upheld and the administrators held harmless on the ground that they sought to maintain a competent faculty and to perpetuate public confidence in the university. Duke v. North Texas State University, 469 F.2d 829 (5th Cir. 1972).
I recognize our rules that Courts of Appeal cannot overturn holdings of the trial court unless they are clearly erroneous, that appellate courts do not try cases de novo, that the resolution of conflicting evidence is particularly within *349 the province of the trial court, and that trial courts’ findings must be given added weight when we consider the opportunity of the trial judge to hear and observe the witnesses.
With these rules in mind, I must nevertheless respectfully dissent from the majority opinion. I would hold that the trial court’s findings that Losee, Barnum and Peterson acted in “bad faith”, maliciously and/or wilfully are clearly erroneous. I am compelled to repeat that these officials were at all times acting in their discretionary capacities. In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949), the Supreme Court said:
It is argued that an officer given the power to make decisions is only given the power to make correct decisions, •x- * we have heretofore rejected the argument that official action is invalid if based on an incorrect decision as to law or fact, if the officer making the decision was empowered to do so. 337 U.S. at 695 , 69 S.Ct. at 1464 .
This court has held that in no event may the Court direct the manner in which discretionary acts are to be performed nor may it direct or influence the exercise of discretion in making a decision. McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971). And in Newman v. Nelson, 350 F.2d 602 (10th Cir. 1965), we held that punitive or exemplary damages may be awarded in addition to actual or compensatory damages only for the purpose of punishing a wrongdoer for willful or wanton invasions of another’s rights. Accord: Adickes v. S. H. Kress & Co., 398 U.S. 144 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970).
Neither a state nor its alter ego is a citizen or person subject to suit without its consent as required by the Eleventh Amendment. State Highway Commission of Wyoming v. Utah Construction Company, supra. And, of course, a state is not a person subject to a Civil Rights suit. Williams v. Eaton, supra. I observe that the State of Utah is not involved directly in this action. Because that State is not a person subject to suit relating to Smith’s claimed deprivations, I suggest that there is no constitutional authority whereby the State of Utah or any of its subdivisions or agencies may permissibly protect, either directly from the public treasury or via premiums for insurance coverage, any of the defendants-appellants from the subject damage judgments awards. Losee, Barnum and Peterson must pay Smith from their personal assets. The prospect is frightening to me — -and for that reason I turn now to this record to demonstrate why I believe that the trial court was clearly erroneous. I first take note of President Losee’s testimony explaining generally his reasons for not granting Smith tenure:
Specifically I told Mr. Smith that he was too active in other people’s affairs. I told him that he resented supervision, that he was critical and very vocal in being critical of anyone with any administrative responsibility at the College and that, in my opinion, he had possibilities and ability that, if he would use it in a positive manner, he could be of value, but he had seen fit to use it in a negative manner and therefore he was not doing the College any good. (Emphasis ours).'
In the present day clamor for unrestricted freedom — meaning freedom to follow one’s own wishes — any restraints thereon are looked upon with an air of alarm by many. The confrontation has all of the earmarks of a national crisis. In the case at bar, plaintiff Smith and the trial court would have us substitute the First Amendment for tenure, and would, in effect, elevate contract law to a constitutional status. College presidents and administrators are walking a veritable tightrope in their efforts to avoid confrontation with the campus aggressors, agitators and “doers”, many of whom perform under the protective guise of “academic freedom”. It is almost as if they are completely disassociated from the concern borne by college administrators in convincing legislators *350 and other public officials who control the public purse strings that a sum certain in funds is necessary to meet high educational standards which, of course, includes the payment of their salaries.
But beyond the practicalities of the problems confronting college administrators I would reverse the trial court’s judgments against appellants Losee, Barnum and Peterson because I believe they are clearly erroneous as a matter of law and not based upon substantial evidence. None of the three appellants acted maliciously or wilfully toward Smith. I would dismiss the judgments and assess all costs against appellee Smith. Smith was loudly, actively and unreasonably anti-administration and disloyal to the requirements lending to the maintenance of a high standard of morale and academic upgrading for the benefit of the students at Dixie College. By affirming any damage awards against Lo-see, Barnum and Peterson, we do so lacking proof of malice on their parts. The risk of personal judgments in the exercise of discretion relative to contract tenure and renewal confronting persons serving in administrative positions such as appellants Losee, Barnum and Peterson will almost certainly guarantee one result: Henceforth those in like positions shall not recommend against tenure or contract non-renewal regardless of their good faith beliefs otherwise. They simply cannot afford to be wrong when error hits their poeketbooks personally. Such a result does not speak well for the future of our system. I must acknowledge that my concern relates to many officials serving in areas other than education.
The record evidences no malice or wilful disregard of Smith by Losee, Barnum or Peterson:
(1) In 1966 Smith served as the faculty representative for the Dixie College Young Democrats. During that year he actively counseled the organization which ran a series of newspaper advertisements against State Senator Dixie Leavitt, a Republican. After the campaign — Leavitt was defeated — President Losee informed Smith that he (Losee) was receiving considerable “backlash” from many as a result of Smith’s activities. Losee indicated to Smith that he play less part or be less aggressive in the future. This does not evidence any malice on Losee’s part. To the contrary, President Losee expressed concern for the benefit of the college in relation to the practicalities of funding requirements and simply “waved a red flag” out of concern for the realities of partisan politics.
(2) Smith’s attitude toward administrators was always negative. He voted against a motion which would have permitted administrators on the campus to become members of the campus Faculty Association. He criticized the administrators in faculty meetings and in department meetings. He was in fact a trouble maker on the campus.
(3) Smith clearly interfered in the Phyllis Bell typing instructor assignment where, while serving as President of the Faculty Association, he challenged her ability to perform, even though it did not relate to his department and he made the assertions without consulting with her department head. This matter was in fact none of Smith’s business, and beyond his know-how or authority. His actions brought Phyllis Bell to tears and a most distraught and anxious condition.
(4) In November of 1968, Smith came to President Losee’s office at which time he questioned Losee about: (a) using work-study funds to train Losee’s horses during the previous summer; (b) per-, mitting state vehicles to be used to go to Losee’s ranch home located near the college, inferentially for Losee’s personal benefit; (c) permitting a member of the maintenance department at the college to take a state vehicle to his home and to deliver his two children in the vehicle to their elementary school near the college before reporting to work each morning, inferring wrongdoing; and (d) permitting the superintendent of the building and grounds to receive a “kickback” on plumbing materials purchased *351 from one of the local St. George, Utah, firms.
In each instance, Losee conducted a thorough and independent investigation of the charges, none of which had any merit. While Smith denied that these “matters” were accusations against Lo-see, he did acknowledge that they were being openly discussed on the campus. It is perfectly obvious to me that Smith was accusing Losee.
President Losee flatly denied that he had made any remarks in the presence of Mr. Laidlow or members of the president’s council that Smith’s non-renewal was based upon matters of a “terrible nature” which he could not divulge. Smith admitted, after his job was not renewed, that he prepared and circulated anonymous letters critical of Losee and the administration on the campus. When asked why he did not sign the letters, the court sustained an objection. The record discloses many instances of the trial court’s obvious partiality in favor of Smith.
For these and other reasons evidenced by the record, I cannot and do not agree that the record reflects any harassment of or malice toward Smith by Losee, Barnum or Peterson.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459893. Public record. Not legal advice.