# 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/9459894

## 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:** Dissent by Doyle
- **Judges:** Lewis, Hill, Seth, Holloway, McWilliams, Barrett, Doyle
- **Cited by:** 88 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459894

## Opinion text

WILLIAM E. DOYLE, Circuit Judge
(dissenting):
I respectfully dissent. I do not have any differences with the majority opinion insofar as the facts are concerned and, indeed, I do not have any major difference insofar as the legal pronouncements contained in the majority opinion are concerned. The main difference is in the majority’s application of the principles enunciated in the facts of the case.
The trial court made very extensive findings of fact. The court found, for example, that in 1969 when plaintiff was denied permanent status and was separated from Dixie Junior College, defendants Losee and Barnum made statements to faculty members that the reason for the separation was plaintiff’s misconduct of a serious nature. At the same time, they did not explain what it was. The court found that these statements were untrue and created strong innuendos and inferences, all of which were highly defamatory in that they indicated that plaintiff was guilty of illegal or immoral conduct. The court further found that the mentioned defendants acted wilfully and maliciously. Another significant finding which should be mentioned is that the other defendants, those on the Board, failed to make any inquiry as to the actions of the defendants Losee, Barnum and Peterson, but simply affirmed their actions. The court also found that as a result of statements made and the actions taken, plaintiff was injured in his reputation as an educator and was unable to obtain a teaching position. This was the basis for the award of actual and punitive damages.
I.
A crucial issue in this case has been the scope and extent of immunity, and the Supreme Court has not spoken on this issue. It has recognized absolute immunity for judicial officers and for legislators, Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951), and in Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), the Court ruled that qualified immunity existed in favor of police officers provided they acted in good faith and with probable cause.
It is submitted that immunity in the context of a § 1983 case must be considered separate and apart from the immunity which federal officers enjoy in tort actions. Cf. Dombrowski v. Eastland, 387 U.S. 82 , 87 S.Ct. 1425 , 18 L.Ed.2d 577 (1967) and Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959). It is confusing to cite these federal cases in § 1983 cases as the majority opinion does because in the § 1983 case we are dealing with violations of constitutional rights and thus, theoretically at least, the privilege should be restricted. See Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966).
*352 From an extensive search of the law in analogous situations it would appear that for a board member or officer the immunity should be a good faith exercise of discretion. See Briscoe v. Kusper, 435 F.2d 1046, 1057-1058 (7th Cir. 1970) which speaks of good faith and upon reasonable grounds. See also McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968) wherein the court said:
At best, defendants’ qualified immunity in this case means that they can prevail only if they show that plaintiffs were discharged on justifiable grounds. Thus here a successful defense on the merits merges with a successful defense under the qualified immunity doctrine.
398 F.2d at 290-291 . See also Young v. Coder, 346 F.Supp. 165 (M.D.Pa.1972) and Kirstein v. Rector and Visitors of Univ. of Vir., 309 F.Supp. 184, 188-189 (E.D.Va.1970), both of which indicate objective evaluation by the trier of the facts as to whether the defendants acted reasonably. To the same effect is Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) which speaks of discretion in terms of fair exercise of judgment based on fact and supported by reasoned analysis. Therefore, in striking a balance which will serve to protect the board members and officers from unjustified lawsuits and which will at the same time give some effect to the spirit of the Civil Rights Act, I would approve a standard of good faith, reasonable exercise of discretion; the evaluation to be made by the trier of the facts.
To allow the defendants’ assertion of good faith to be conclusive on the trier of the facts will result in rendering § 1983 a nullity. The majority opinion does not do this, but it is unclear what it does and what standard a trial court is to follow. If the matter is left to the discretion of individual courts there will be a variety of decisions. Therefore, it is unfortunate that the problem has not been settled.
But even under the majority’s standard the board members are subject to liability in this case because they did not investigate the facts. They merely adopted and affirmed the President’s conclusion and, therefore, they are subject to liability to the extent of actual damages. As to them, the elements of the Civil Rights action are fully established. If the Civil Rights Act is to be given a grudging and parsimonious application by the expedient of expanding the immunity, it means that the Supreme Court’s decisions in cases like Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972) and Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968) and the cases there cited mean very little. It does not seem likely that the Supreme Court would have gone to the trouble of recognizing civil rights violations in these circumstances if it had contemplated that the Act could be limited at will by expanding the immunity of the officers involved.
II.
I do concede that the damages awarded were excessive. This does not mean though that there were no actual damages beyond out-of-pocket. The nature of the violation of constitutional rights contemplated by § 1983 is that there will be actual intangible damages such as those which result from injury to the reputation. This I see as having a similarity to the intentional tort. If a man’s civil rights have been intentionally violated, he is certainly entitled to some award for humiliation or to injury to his reputation, or both. The cases arising under the Civil Rights Act which recognize damages other than punitive for injuries which attend violation of civil rights are numerous. 1
*353 I am not lacking in sympathy for members of boards who serve the community without pay. In the past they have operated on the basis that their immunity was absolute. As is apparent from the facts in this case the defendants believed that they could act in relationship to the plaintiff here as they wished even to the extent of invading his constitutional rights without a risk of liability. Immunity should not, however, be extended to this length so as to protect against a mistake of law. The majority opinion recognizes that there is hardship in extending liability to defendants. As a result, the legal definitions are lacking in meaning. The law should be declared and applied as positively and accurately as possible and relief should be given by adjusting the damages. Instead of an award of $40,000 I would reduce the actual damages to $10,000 plus out-of-pocket loss and would order the plaintiff to file a remittitur accordingly.
. See, e. g., Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970) ($5,000 compensatory damages, which included emotional and mental distress, for termination of em *353 ployment for exercise of First Amendment rights) ; Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968) ($3,173.60 and $2,563.31 compensatory damages and $250 counsel fees for two teachers dismissed by superintendent of schools and county board of education); Wall v. Stanly County Board of Education, 378 F.2d 275 (4th Cir. 1967) (actual damages ordered awarded for dismissal of teacher); Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958) ($5,000 damages for unlawful arrest); Sexton v. Gibbs, 327 F.Supp. 134 (N.D. Texas 1970), aff’d, 446 F.2d 904 (5th Cir. 1971) (per curiam), cert. denied, 404 U.S. 1062 , 92 S.Ct. 733 , 30 L.Ed.2d 751 (1972) ($500 and $250 in nominal damages against two defendants for outrage, embarrassment and humiliation for unlawful arrest); Collum v. Butler, 288 F.Supp. 918 (N.D. Ill.1968), aff’d. 421 F.2d 1257 (7th Cir. 1970) (new trial or remittitur of $11,500 ordered where verdict was returned in amount of $17,500 for beating by police officers and their refusal to allow telephone call); Rhoads v. Horvat, 270 F.Supp. 307 (D.Colo.1967) ($5,000 compensatory and $2,500 punitive damages for 30-45 minutes false imprisonment by county sheriff and deputy) ; Brooks v. Moss, 242 F.Supp. 531 (W.D.S.C.1965) ($3,500 actual damages and $500 punitive for arrest, detention, prosecution and physical attack by magistrate’s constable); Antelope v. George, 211 F.Supp. 657 (N.D.Idaho 1962) ($500 damages for unlawful arrest in view of willfulness of officers’ conduct and of indignity and humiliation suffered by plaintiff). See also Wayne v. Venable, 260 F. 64 (C.C. A. 8th 1919); Rue v. Snyder, 249 F.Supp. 740 (E.D.Tenn.1966); McArthur v. Pennington, 253 F.Supp. 420 (E.D. Tenn.1963); 35 A.L.R.2d, Excessiveness or Inadequacy of -Damages for Defamation, 218; id. at 273, Excessiveness or Inadequacy of Damages for False Imprisonment or Arrest; id. at 308, Excessiveness or Inadequacy of Damages for Malicious Prosecution.
There are, of course, some extraordinary cases. See Reynolds v. Pegler, 223 F.2d 429 (2d Cir. 1955) ($1 compensatory and $175,000 punitive damages for libel and slander) ; Gaston v. Gibson, 328 F.Supp. 3 (E.D.Tenn.1969) ($10,000 compensatory and $30,000 punitive damages for injury inflicted by law enforcement officer); Butts v. Curtis Publishing Co., 225 F.Supp. 916 (N.D.Ga.1964), aff’d, 351 F.2d 702 (5th Cir. 1965), aff’d, 388 U.S. 130 , 87 S.Ct. 1975 , 18 D.Ed.2d 1094 (1967) ($60,000 actual damages and $400,000 punitive damages, reduced from $3,000,000, for libel and slander).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459894. Public record. Not legal advice.