author: SIMPSON, Circuit Judge: BELL, Circuit Judge

text:
    Roosevelt WALKER, Petitioner-Appellant, v. E. B. CALDWELL, Warden, Georgia State Prison, Respondent-Appellee.
    No. 71-3253.
    United States Court of Appeals, Fifth Circuit.
    April 3, 1973.

      Joseph W. Popper, Jr., Macon, Ga., for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., Dorothy T. Beasley, Harold N. Hill, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Roosevelt Walker, a Georgia state prisoner, appeals from the district court’s denial of his petition for writ of habeas corpus. We are required here once again to examine the minimum standard of duty imposed upon appointed counsel in a felony case where the defendant pleads guilty. After careful review of the record, the briefs and the contentions of the parties at oral argument we reverse.

Walker was arrested in Baldwin County, Georgia, on August 23, 1969, and charged in eleven separate indictments with seven counts of burglary (Criminal Code of Georgia, 1969, § 26-1601), three counts of theft by taking (Criminal Code of Georgia, 1969, § 26-1802), and one count of carrying an unlicensed, concealed pistol. On Friday, August 29, 1969, Walker attended by court-appointed counsel pled guilty in Georgia state court to each of the charges against him. He was sentenced to three years confinement on each of the seven charges of burglary and on each of the three counts of theft by taking, all sentences to be served consecutively, a total of thirty years imprisonment. On the charge of carrying an unlicensed, concealed pistol, Walker was sentenced to six months in a public work camp, this sentence to be served concurrently.

Subsequent to his imprisonment, Walker petitioned the state courts of Georgia for a writ of habeas corpus contending, inter alia, that he was at all times innocent of the charges against him, that he had never expressed a desire to plead guilty, that he had been denied effective assistance of counsel at the time of his pleas, and that therefore his pleas of guilty were not knowingly, voluntarily and understandingly made. After a hearing, the state court denied relief.

Walker then sought habeas corpus relief from the Middle District of Georgia federal district court. On the basis of an insufficient state court record, that court denied relief without an evidentiary hearing. Walker v. Smith, 5 Cir. 1971, 439 F.2d 392. We reversed, and directed the district court to conduct an adequate evidentiary hearing to permit Walker to develop his contentions that he was deprived of his constitutional rights in connection with his criminal conviction by the State of Georgia, and to accord Walker representation in connection with such hearing if that court should, in its discretion, determine that such representation was required in the interests of justice.

The hearing was held on July 26, 1971. Walker testified. Deposition testimony was introduced from the Sheriff of Baldwin County, two of his deputies, the judge of the state court who accepted Walker’s pleas and sentenced him, and from Walker’s appointed counsel. Petitioner’s counsel attended and cross-examined at the depositions. On October 7; 1971, the district court again denied habeas corpus relief. Walker v. Caldwell, M.D.Ga.1971, 335 F.Supp. 308. This appeal followed.

At the time of Walker’s convictions, it was the practice to take all guilty pleas on Friday mornings in the Baldwin Superior Court. On Friday, August 29, 1969, Walker was transported to the court, apparently on the basis of an indication to the Sheriff or one of his deputies that he wished to plead guilty. Walker had not as yet discussed his case with any member of the bar.

The Judge of the Superior Court, Judge George S. Carpenter, appointed James M. Watts, Jr., an attorney, to represent Walker and his co-defendants at the proceeding. Watts, whose office adjoins the courtroom, handled roughly ninety per cent of the appointed cases in this court, without fee. He represented approximately 500 defendants each year, and usually handled about ten cases each plea day.

Watts talked to Walker for a very brief period of time. Walker testified that Watts only talked to him for five minutes. Watts, although unable to remember the specific incidents of his representation of Walker, testified in the court below by deposition that it was his usual practice to spend from ten to thirty minutes on each case on an average plea day. It is uncontradicted however, that on the morning in question Watts did not seek to investigate the facts of the charges against Walker, talk to any witnesses, explore the possibility of a motion to suppress, or engage in any plea bargaining. Watts testified below that he follows a substantially different practice when representing fee clients rather than appointed clients. Watts also testified that he only determined to his satisfaction that Walker’s pleas were voluntarily and understandingly made, and did not advise Walker whether to plead guilty.

After his brief discussion with Walker, Watts pleaded Walker guilty to all charges against him. Walker is illiterate and Watts signed the pleas of guilty. No record was made of the plea proceedings in the state court, other than the formal notations of pleas and sentencing.

On appeal to this Court, Walker contends that:

(1) habeas corpus relief must be granted under Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, since no record was made of the proceedings in state court;

(2) the district court erred in finding that Walker was afforded and enjoyed the benefits of effective assistance of counsel at the time of his pleading and sentencing; and

(3) the district court erred in finding that Walker knowingly, voluntarily, and understandingly entered pleas of guilty to the charges in state court.

Since we agree with the district court’s determination of the Boykin issue, we address ourselves solely to Walker’s contention that he was denied effective assistance of counsel at the time of his pleas, and that therefore his pleas were not voluntarily and intelligently given. The determination of these issues is first a question of fact for the trial court, not to be disturbed on appeal unless clearly erroneous. Rule 52(a), F.R.Civ.P. The precise issue of whether a particular defendant enjoyed “effective” assistance of counsel, is, in the end, however, a question of law. As implied by the Supreme Court in Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, there is a legal standard, by definition normative and prescriptive, which must be applied to a particular set of facts in order to determine whether an accused received effective assistance of counsel. Thus while we question the trial court’s findings of fact (see footnotes 4, 5, and 6 and accompanying text), we think the trial court erred in its conclusion of law, under either version of the facts, that Walker enjoyed effective assistance of counsel and thus pleaded guilty both voluntarily and intelligently.

In Powell v. State of Alabama, supra, the “Scottsboro case”, the Supreme Court granted certiorari to decide whether the denial of the assistance of counsel in a criminal case violated the due process clause of the Fourteenth Amendment of the United States Constitution. In that case several blacks were accused of the rape of two white females. The state trial court appointed “all the members of the bar” to represent the defendants at arraignment. Only at the trial itself was specific defense counsel appointed. Limiting itself to the facts of this particular case, the Supreme Court held that in a capital case where the defendant is indigent and incapable of making his own defense, the court has the duty of appointing counsel to represent the defendant. The Court held that this duty was not discharged by an appointment that precluded effective assistance, that mere appointment of counsel is insufficient in and of itself to comply with the due process clause. While limited to its facts, Powell discussed the principles underlying effective assistance of counsel:

“However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. . 287 U.S. at 52, 53 S.Ct. at 58, 77 L. Ed. at 162.
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“[S]uch designation of counsel as was attempted [here] was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard [T]his action of the trial judge in respect of appointment of counsel was little more than an expansive gesture, imposing no substantial or definite obligation upon any one . . . [T]he defendants did not have the aid of counsel in any real sense. .
287 U.S. at 53, 56, 57, 53 S.Ct. at 58, 59, 60, 77 L.Ed. at 162, 164.
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“It is not enough to assume that counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thorough-going investigation might disclose as to the
facts. No .attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial . . . Under the circumstances disclosed, we hold that defendants were not accorded the right of counsel in any substantial sense. To decide otherwise, would simply be to ignore actualities . . . 287 U.S. at 58, 53 S.Ct. at 60, 77 L.Ed. at 165.
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“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issues or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.
287 U.S. at 68, 69, 53 S.Ct. at 64, 77 L.Ed. at 170.
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“[W]e are of the opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.”
287 U.S. at 71, 53 S.Ct. at 65, 77 L. Ed. at 172, 173.

In Von Moltke v. Gillies, supra, the Supreme Court delineated the standards to be applied in determining whether an accused who pleads guilty has been afforded effective assistance of counsel. The Court held that the accused in Von Moltke, who pleaded guilty, was denied effective assistance of counsel, and stated that:

“A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial, [citations omitted] Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent.
332 U.S. at 721, 68 S.Ct. at 322, 92 L. Ed. at 319, 320.
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“In Powell v. State of Alabama [citations omitted], the trial court, instead of appointing counsel particularly charged with the specifc duty of representing the defendants, appointed the entire local bar. This Court treated such a cavalier designation of counsel as a mere gesture and declined to recognize it as a compliance with the constitutional mandate relied on in that case. It is in this light that we view the appointment of counsel for petitioner when she was arraigned. This lawyer, apparently reluctant to accept the case at all, agreed to represent her only when promised by the judge that it would take only two or three minutes to perform his duty. And it seems to have taken no longer. Even though we assume that this attorney did the very best he could under the circumstances, we cannot accept this designation of counsel by the trial court as anything more than token obedience to his constitutionally required duty to appoint counsel for petitioner. Arraignment is too important a step in a criminal proceeding to give such wholly inadequate representation to one charged with a crime.” 332 U.S. at 722, 723, 68 S.Ct. at 322, 323, 92 L.Ed. at 320.

The correct legal standard to be applied where an accused with appointed counsel pleads guilty is as stated by the Supreme Court in Von Moltke. Further we note the language of McCarthy v. United States, 1969, 394 U.S. 459, 89 S. Ct. 1166, 22 L.Ed.2d 418, to the effect that “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” [Emphasis added] 394 U.S. at 466, 89 S.Ct. at 1171, 22 L.Ed. at 425. Providing this “understanding of the law in relation to the facts” is the function of the accused’s appointed counsel.

We have previously considered the question of the standards to be applied to determine whether a defendant enjoyed effective assistance of counsel. We held in Kent v. Sanford, 5 Cir. 1941, 121 F.2d 216, that an attorney appointed to represent an indigent defendant is under an initial obligation to his client equal to that duty owed when he is retained and paid by the accused to represent him. We recognized in Lamb v. Beto, 5 Cir. 1970, 423 F.2d 85, however, that the same duty is not owed by appointed counsel to an accused who pleads guilty as to one who decides to go to trial:

Obviously, more would be required of counsel if the plea had not been guilty for some duty might have arisen to support this plea. However, it appears that the only required duty of counsel under the most liberal construction when a plea of guilty is entered is that counsel . . . should ascertain if the plea is entered voluntarily, and knowingly. Id. at 87.

The scope of this duty of appointed counsel in guilty plea cases, to insure that the plea is entered voluntarily and knowingly, has been examined by us in several recent cases. On the facts of these cases we have generally denied relief. The cases in which we have denied relief fall into two categories. First, in many cases the petitioner has merely presented a bare assertion, unsupported by the record and contradicted at an evidentiary hearing, that he was denied effective assistance of counsel. In these situations we have uniformly denied relief on the basis of the “clearly erroneous rule”, Rule 52, F.R.Civ.P. See Farmer v. Beto, 5 Cir. 1971, 446 F.2d 1357; Gotcher v. Beto, 5 Cir. 1971, 444 F.2d 696; Busby v. Holman, 5 Cir. 1966, 356 F.2d 75. Second, we have denied relief where the petitioner attacked the effectiveness of his appointed counsel on the sole ground of the shortness of the time his counsel spent on his behalf. In Daugherty v. Beto, 5 Cir. 1967, 388 F.2d 810, we denied relief on this ground, and noted that the petitioner’s appointed counsel was a highly respected attorney and that “although this' fact alone does not establish his effectiveness in a particular case, neither does brevity of consultation, without more, establish ineffectiveness.” Id. at 813. Daugherty has been consistently followed in this Circuit. See Woodard V. Beto, 5 Cir. 1971, 447 F.2d 103; Lamb v. Beto, supra; O’Neal v. Smith, 5 Cir. 1970, 431 F.2d 646; Evans v. Beto, 5 Cir. 1969, 415 F.2d 1129.

In the only recent habeas corpus case in which the petitioner did not present merely a bare conclusionary assertion or rely solely upon the shortness of time his counsel spent on his case, we affirmed the granting of habeas corpus relief to the petitioner. Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075. There we held that the petitioner was denied effective assistance of counsel in his state court proceeding when he pleaded guilty. Commenting upon the Supreme Court’s recent decisions in McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L. Ed.2d 785, and Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L. Ed.2d 747, we stated:

“A necessary result of the seriousness with which courts treat pleas of guilty, however, is that courts have a concomitant responsibility to assure that defendants who plead guilty do so voluntarily and knowingly. We think that an equally important aspect of the courts’ responsibilities in this problem area is the protection of the accused’s right to the benefit of reasonably competent counsel in making his plea, especially when that plea is entered on advice of counsel. One cannot read the Supreme Court’s opinions in McMann, Parker and Brady, supra, without being impressed by the significance the Court attached to the role of counsel in the process of deciding how to plead. In all three cases, it was obvious that the Supreme Court envisioned a system under which the defendant, advised by reasonably competent counsel, makes an informed and conscious choice ... In any particular case in which the system fails . . . it is the courts’ duty to supply relief.” [Emphasis original] Id., 438 F.2d at 1079.

In examining the facts of the Colson case, it is clear that more was involved than a bare assertion that his appointed counsel spent too little time with him:

“There is testimony from petitioner in this case that his court-appointed counsel informed him that one of his co-defendants was going to testify against him, that counsel could not undertake to defend him, and that the best thing petitioner could do was plead guilty. Petitioner’s counsel contradicted much of this testimony, but it was uncontroverted that petitioner adhered to his decision to plead not guilty until the day the case was called. Furthermore, it was uneontradieted that there was considerable discussion between the petitioner and his counsel, on the one hand, and the state trial judge, on the other, before petitioner entered his final plea. During this colloquy, it appears that petitioner resisted pleading guilty for some time before finally relenting. It also appears that although counsel knew beforehand that petitioner wanted to plead not guilty, counsel appeared in court on the day the case was called completely unprepared to go to trial. On this record the trial judge made a fact finding that petitioner’s guilty plea was the product of ineffective assistance of counsel . . . We agree . . . with the district court’s finding that under either version of the facts, the evidence in this case demonstrates that petitioner was ineffectively represented in his state court proceeding. We reach this conclusion even in light of the narrow duty imposed on counsel representing a defendant who pleads guilty. See Lamb v. Beto, supra. For we believe that the evidence in this case supports the conclusion that counsel actively tried to convince petitioner to plead guilty in the face of petitioner’s repeated protestations of innocence; and to offset this evidence, there was no evidence that counsel’s advice to plead guilty was based on any evaluation of petitioner’s chances had he gone ' to trial. In other words, we do not have before us a case of ‘reasonably competent’ advice which, with the benefit of hindsight, turned out to be mistaken . . .We are of the opinion that on this record there is no way that an appellate court could conclude that counsel had fulfilled his duty to ascertain that his accused client’s plea of guilty was voluntarily and understandingly made. We therefore affirm the district court’s order to set aside the conviction.” Id. at 1079, 1080, 1081.

The complete factual situation persuaded the Colson panel that the petitioner had been denied effective assistance of counsel. Note 5 noted that the advice given an accused by his appointed counsel need not be “correct”, only “reasonably competent”, but went on to state:

“. . . when . . . the defendant resisted pleading guilty and no reasons were given for urging a guilty plea on the defendant, courts cannot assume that there were satisfactory reasons for the plea. This is especially true when there appear positive reasons in the record why a petitioner might have pleaded not guilty.” id. at 1081.

Colson stresses the fact that petitioner’s counsel never spoke to the co-defendant, and never bothered to even find out who the witnesses were that petitioner maintained could provide an alibi for him. Also the petitioner had never been identified in a lineup, as had his co-defendants.

Our most recent decision in this area, Cooks v. United States, 5 Cir. 1972, 461 F.2d 530, was a direct appeal rather than a post-conviction state habeas case, but the constitutional standard applied is not different. There the defendant’s conviction was vacated on the basis of lack of effective assistance of counsel. Cooks, an indigent, pleaded guilty on the advice of his appointed counsel to interstate transportation of a forged security in violation of Title 18, U.S.C. § 2314. As in Colson, supra, we held that the record, taken as a whole, demonstrated that the defendant was denied effective assistance of counsel:

“Defendant, a virtual illiterate with a minimal, sixth-grade education, was charged on a facially defective six-count indictment . . . Notwithstanding the obvious inefficacy of the indictment, Defendant was advised by court-appointed counsel that should he go to trial on the indictment, he would face a maximum sentence of up to sixty years — ten years on each count. Instead of risking such an extended incarceration, defense counsel advised Defendant to accept a ‘plea bargain’ which had been negotiated with the Government’s Attorney — if Defendant would plead guilty to Count I of the indictment [transporting the American Express Money Order], and face a maximum penalty of ten years in prison, the Government would move to dismiss the other five (unenforceable) counts. The Defendant quite understandably accepted the deal.
“While the good faith errors of appointed counsel are normally insufficient to justify granting a motion to vacate sentence, significant misleading statements of counsel can rise to a level of denial of due process of law and result in a vitiation of the judicial proceeding because of ineffective assistance of counsel, [citations omitted] Where counsel has induced defendant to plead guilty on the patently erroneous advice that if he does not do so he may be subject to a sentence six times more severe than that which the law would really allow, the proceeding surely fits the mold we describe as a ‘farce and a mockery of justice’, [citations omitted]
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“. . . [Although counsel need not be a fortune teller, he must be a reasonably competent legal historian. Though he need not see into the future, he must reasonably recall (or at least research) the past [T]he controlling Supreme Court precedents which demonstrate unequivocally that defendant could not possibly receive a total of 60 years on the indictment were decided more than a decade before this defendant pleaded guilty. Effective counsel should have been aware of and advised the defendant of, at a minimum, the maximum — that is, the maximum penalty as the law was then understood.
“Moreover, in addition to not having adequately advised his client of the possible punishment under the indictment, there is affirmative evidence in the record that counsel did not even inform the defendant regarding the nature of the offenses charged —not even of the single count to which the defendant pleaded guilty.
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“. . . [T]here is absolutely nothing in the record to demonstrate that the defendant had any understanding of the nature of the offense charged in the indictment, the factual basis for it, or, as discussed above, of the possible criminal sanctions of that conduct.” [Emphasis original] 461 F.2d 531, 532, 533.

Thus taking into consideration the illiteracy of the defendant, the “patently erroneous” advice of appointed counsel, the failure of appointed counsel to even inform the defendant of the nature of the offenses charged, and the lack of any showing in the record of any understanding by the defendant of the proceedings against him, the Cooks panel of this Court held that the defendant’s guilty plea was invalid.

Against the backdrop of the Supreme Court’s admonitions in Powell and Von Moltke and in the light of our recent decisions in the area, particularly the Col-son case, we proceed to examine the record before us in the instant ease. The petitioner here does not merely make an unsupported assertion or rely exclusively on the brief time his appointed counsel, Watts, spent with him. Here we have the highly questionable prevailing practice in the Baldwin Superior Court of routinely appointing a single resident attorney to represent ten or more defendants at every Friday morning plea day without compensation; the lack of a record of the proceedings; the fact that Watts offered no advice to Walker as to whether or not to plead guilty; the significant fact of Walker’s illiteracy; numerous indictments involving ten separate offenses on different occasions, all dealt with in a few minutes; and the fact that Watts made no attempt (1) to investigate the facts of the charges against Walker, (2) to talk to any witnesses, (3) to explore the possibility of a motion to suppress, or (4) to engage in any plea bargaining even though the presence of ten serious charges should suggest the possibility of plea bargaining to the veriest tyro.

Of the eleven' indictments against Walker, three charged him with the crime of theft by taking under § 26-1802 of the Criminal Code of Georgia (1969). Section 26-1812 of this chapter states that “[a] person convicted of violation of sections 26-1802 shall be punished as for a misdemeanor except: (a) If the property which was the subject of the theft exceeded $100 in value . . . .” Section 26-401 defines a felony as “a crime punishable by death, or by imprisonment for life, or by imprisonment for more than 12 months,” (§ 26-401 (e)) while a misdemeanor “means any crime other than a felony” (§ 26-401 (g)). It would appear then that the maximum punishment for a misdemeanor under the Criminal Code of Georgia is 12 months’ imprisonment. The above is set forth in order to point out that each of the three indictments charging Walker with theft by taking involved property the value of which was less them $100, i. e., a misdemeanor. Yet the state trial judge sentenced Walker to three years on each indictment, clearly in excess of the statutory maximum. Since Walker does not here challenge the sentences he received we do not reach this point on appeal. But the unchallenged imposition of illegal sentences is indicative of the atmosphere surrounding Walker’s pleas of guilty, and is an eloquent testament to the quality of representation by his counsel. We emphasize at this point that no record was made at the time of Walker’s pleas and sentencing. Coupled with the admitted operation of a pro forma assembly line for the representation of criminal defendants by counsel on plea days this adds weight to our conclusion that the entire court proceedings lacked the requisite regard for the rights of accused persons appearing before the court.

Taking the situation here as a whole, we hold that Walker’s plea and conviction approximates the situation in Von Moltke, where the Supreme Court stated that “[e]ven though we assume that this attorney did the very best he could under the circumstances, we cannot accept this designation of counsel by the trial court as anything more "than token obedience to his constitutionally required duty to appoint counsel for petitioner.” In view of the total factual situation present when Walker pleaded guilty we hold that he was denied effective assistance of counsel, and hence that his pleas were not voluntarily and knowingly given. This result is reached on the facts here. We do not hold that every appointed counsel representing an accused who desires to plead guilty, or whom he advises to plead guilty, must investigate all the facts of the case, explore all possible avenues of defense, etc., to the extent required of appointed counsel representing an accused who pleads not guilty and goes to trial. We do hold that under these facts, as in Von Moltke and Colson, something more is required than the pro forma procedure followed here. The key words are “effective assistance of counsel.” Much of the language of our recent cases in the area refers to whether the assistance of counsel was “effective”. We must not ignore the equally important first requirement that appointed counsel actually and substantially assist his client in deciding whether to plead guilty.

The judgment of the district court is reversed, and the cause is remanded with directions to grant Walker’s petition for a writ of habeas corpus. The State of Georgia has the option, of course, of retrying Walker, at which time he will be allowed to replead.

Reversed and remanded.

BELL, Circuit Judge

(specially concurring) :

I concur in the result reached that appointed counsel was ineffective under the circumstances.

The district court did not really come to grips with the issue of the alleged ineffectiveness of counsel. The focus was on the Boykin claim, and on the claim that the pleas of guilty were not voluntarily made. The claim of ineffectiveness of counsel having been considered in a tangential fashion if at all, we would normally remand for findings and conclusions on this issue. However, this is the second appearance of the case in this court and it is in the interest of both petitioner and the public to conclude it if possible. The public has the right to hold petitioner responsible on the charges against him, and he has the right to plead anew, either guilty or not guilty.

I agree that the matter can be concluded on the basis of ineffectiveness of counsel, given the hurried process employed and the irrefutable proof of ineffectiveness which appears in the fact that petitioner pleaded and was sentenced to felonies on three counts which were in fact misdemeanors. It is also admitted that counsel did not familiarize himself with the facts as to any of the charges or make any judgment as to whether petitioner should plead guilty. These facts make out ineffectiveness of counsel as a matter of law.

I do, however, fully agree with Judge Bootle that petitioner failed to prove his claim that the state trial judge accepted the pleas of guilty in the face of petitioner’s protestations of innocence. I do not understand the majority to hold otherwise.

      . In Boykin v. Alabama, supra, the Supreme Court held that:
      “In Carnley v. Cochran [citations omitted] we dealt with a problem of waiver of the right to counsel . We held: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which simo, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
      We think that the same standard must be applied to determining whether a guilty plea is voluntarily made . We cannot presume a waiver of . . . important federal rights from a silent record.” [Emphasis added] 395 U.S. at 242, 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279, 280.
      Relying on the italicized language in Hoykin above and on this Court’s decisions in Dennis v. Henderson, 5 Cir. 1970, 435 F.2d 1288, and Nobles v. Beto, 5 Cir. 1971, 439 F.2d 1001, the district court determined that Boykin does not require the automatic setting aside of a conviction obtained on a plea of guilty where the record is silent. The court concluded that “ . . .in situations where the question of the voluntariness of a guilty plea is 2'aised in a habeas corpus action the court is authorized and should either hold an evidentiary hearing to establish a record whereby it can be deter-mined that a plea of guilty was freely and voluntarily entered or else rely on a record established in a state habeas corpus hearing, which record is adequate under the provisions of 28 U.S.C.A. § 2254.” Walker v. Caldwell, M.D.Ga.1971, 335 F. Supp. 308, at 313. The district court thus concluded that if an evidentiary hearing held after the entering of the plea shows that the pleas were voluntarily and intelligently made, that the proscriptions of Boylcin are satisfied and the lack of a record at the time of the original plea is not fatal. We agree. Dennis v. Henderson, supra; Nobles v. Beto, supra.

      . Nor can we ignore the Supreme Court's recent admonition in Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, to the effect that
      Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as felony cases. Counsel is needed so that the accused may know precisely what lie is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.

      . The formal requirements of this duty are now the responsibility of the trial judge in federal courts. Rule 11, F.R.Crim.P.

      . For example, Mr. Watts testified below that “usually if it is a burglary case, the person who is the victim of it — I say usually, a good part of the time — he will be in court”. Walker was, of course, charged with seven burglaries. Watts testified that he could not remember whether the victims of the burglaries were in court on the morning of Friday, August 29, 1969, but he was sure that he made no attempt to and did not talk to any of them.
      Mr. Watts also testified as to whether he made any investigation as to the value of the items alleged to have been stolen by Walker:
      Q. I notice that in each one of these accusations that the value is given to the property that was allegedly taken from these various places. For example, the first one gives a value of $200, and each one all the way through gives some value. What does that have to do with the case? Is that a necessary element of the crime?
      A. I don’t think it makes any difference in the burglary, but I think in the theft by taking, I believe over a certain value, there is a difference as to whether or not it is a felony or a misdemeanor. I am not certain offhand. And as to why the District Attorney puts the amount in, I don’t really know.
      Q. Did you make any independent investigation in any of these cases to determine if the value as stated in the accusation was an accurate value, a fair value.
      A. I don’t remember specifically on these, but usually I do inquire about that, and generally my opinion of the value of those items, unless they are in exceptionally poor condition, is that the valuation that they place on them is less than, in my opinion, a fair value should be, and I think it is the policy of the Sheriff’s Department and the District Attorney’s office to put minimum value on things instead of maximum. But there again, that is an opinion.
      Q. I notice here that a battery taken from the truck of Wilbur Wise, they have got it at $25, and that could be either way high or way low, couldn’t it, depending on the age and condition and type of battery?
      A. That’s true, but I believe most of Mr. Wise’s property consisted of trucks and machinery and it would be likely have been a heavy duty battery. He operated bulldozers and ten-ton trucks and things.
      Q. Did you ever see any of these items that were allegedly taken?
      A. Not that I recall.
      Q. I believe you have said that you did not leave the courtroom in connection with any of these eases?
      A. I don’t think I did with these.

      . Mr. AVatts testified below that he advised AValker of possible sentences he might receive if he pleaded guilty:
      Q. Were you satisfied that he [Walker] understood what the consequences of pleading guilty would be?
      A. Yes. I explained to him the number of counts for burglary and the number of other charges and told him that he could get 20 years for each count of burglary, and I am not certain but I think it is 10 years for theft by taking. I don’t recall offhand the punishment for the other two.
      Mr. Watts was also asked why each of the indictments included the dollar value of the property that had been allegedly stolen:
      A. I don’t think it makes any difference in the burglary, but I think in the theft by taking, I believe over a certain value, there is a difference as to whether or not it is a felony or a misdemeanor. I am not certain offhand. And as to why the District Attorney puts the amount in, I don’t really know.
      Thus Mr. Watts appears to have been ignorant of the fact that whether the crime of theft by taking is a felony or misdemeanor depends upon whether the value of the property taken is more or less than $100. As discussed in the text, each of the indictments charging Walker with theft by taking assesses the value of the property taken as less than $100, and thus was a misdemeanor, the maximum penalty for which is 12 months’ imprisonment.
      In addition, it appears from the testimony of Judge Carpenter, the state trial judge, that he was also unaware that AValker had been charged with three misdemeanors, i. e., theft by taking.
      Q. Now, you say there were nine burglaries. AVere not there three theft by taking or were there nine burglaries?
      A. Well, I believe they were burglaries.
      Q. Let me refer you to Accusation and Sentence No. 21315, 21316, and 21317 as the certified copies appear in the record from Tattnall Superior Court, the habeas corpus transcript, and ask you if they are three that you may have referred to as burglaries that are theft by taking.
      A. I think that by referring to 26-802, which is, of course, theft by taking, this happened about the time the new criminal code went into effect.
      Q. So we are talking about the same cases?

        A. Yes, it is the same thing. If you turn to Code Section 26-802, you will see that it deals with burglary and related offenses.
      The new Criminal Code of Georgia, including § 26-1802 (Theft by taking), went into effect on July 1, 1969, some two months prior to Walker’s pleading and sentencing. Section 26-802, referred to by Judge Carpenter above, deals with “Trial and conviction of parties who did not directly commit the crime.” Section 26-1802 deals solely with theft by taking. Burglary and related offenses are covered by Chapter 26-16 of the Code, sections 26-1601 and 26-1602. In light of the three year sentences received by Walker, we can only assume that Judge Carpenter was not aware that the value of the goods taken must be $100 or more to constitute the felony of theft by taking. We do note that under the old Georgia criminal law, tiie watershed value was $50. See, e. g., Ga.Code, § 26-2627 (1953).
      Judge Carpenter’s testimony below as to his usual practice in guilty plea cases was as follows:
      Q. What disposition was made of these eases [Walker’s] before you?
      A. They came on — I assume that this was tried on Friday. Friday is plea day for the Circuit. The matter came on, and while it has been almost two years, and handling cases in eight counties in the Circuit, and there are a great many of them, I cannot remember what happens in each case, and I wouldn’t attempt to say. But knowing my practice for a long time, I have always taken pains to see that defendants were properly represented. I realize the seriousness of that. Many times, after they have wanted to plead, there may be some intimation that they probably don’t, well, I stop it right then. I don’t ever take a plea unless I am satisfied that the plea is freely and voluntarily done and with the advice of counsel.
      Mr. Watts testified that he made no attempt to advise Walker whether to plead guilty. In addition, we hold today that AValker was not “properly represented”.

      . The district court made a credibility choice between Walker and his appointed attorney and the state trial judge. We cannot say that the court erred in finding much of Walker’s testimony before him to be unbelieveable. We do note two circumstances, however. First, Walker alone testified in person before the district court. His appointed attorney, the state trial judge, the sheriff and his deputies, all testified by deposition. Secondly, in his opinion denying Walker habeas corpus relief, the district court stated that:
      “To credit the testimony of petitioner would require that we discredit the testimony [deposition] of a member of the bar, the Sheriff of Baldwin County along with two of his deputies and of Judge Carpenter [the state trial judge]. Judge Carpenter affirmatively stated that he would never countenance an involuntary plea of guilty. 1 happen to know Judge Carpenter and I know that he would not do so even if he had not so testified. It is unthinkable that this experienced, capable and conscientious Judge would sentence a man to 30 years after that man told him that he was not guilty of the charges against him. Nor can it be presumed that a member of the bar would plead a man guilty without authority to do so and over his protestations of innocence. To make a finding that the events did transpire as alleged by petitioner would require a much stronger showing than we have here.” ' [Emphasis added]
      Walker v. Caldwell, M.D.Ga., 335 F. Supp. 308 at 315.
      Our decision of this case is not based upon either crediting Walker’s testimony or upon discrediting that of Judge Carpenter or Mr. Watts. Neither evaluation is necessary. But we note: (1) whether Judge Carpenter was “experienced, capable and conscientious” is not the issue ; rather, in a case of this kind we are concerned witli the particular events that transpired on the morning of Friday, August 29, 1969; (2) the lack of a record of the proceedings, combined with the inability of these witnesses to remember the details of Walker’s pleas and sentencing forces courts in cases like this to rely on circumstantial evidence to determine what actually occurred; the “usual practice” of court and counsel does not in and of itself render Walker’s testimony incredible ; and (3) in Colson, supra, at least, we had the situation where appointed counsel pled his client guilty against his will. In addition, were we to reach a different result in this case, we might consider remanding the case for reconsideration by a different district court judge not as well acquainted with the state trial judge.


source: Caselaw Access Project

author: WINTER, Circuit Judge:

license: Public Domain

text:
    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, Erle 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 Dec. 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. 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. 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 of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). Thus, what defenses there are to a § 1983 action are those that would exist in a parallel state common law tort action, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Jenkins v. Averett, 424 F. 2d 1228, 1233 (4 Cir. 1970); and only when good faith alone would be a sufficient defense to a tort, would it usually be a sufficient defense to a § 1983 action based on that tort. Roberts v. Williams, 456 F.2d 819, 826 (5 Cir. 1971), cert. denied 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971).

A federal cause of action based on sex-discrimination has no deep common-law roots; rather, it emerges from recent enlightened approaches to what constitutes equal protection of the laws under the fourteenth amendment. Consequently, there exists in this case no well-defined common-law defense of good faith to adopt as a'defense in the federal suit. Yet, as Kirstein, supra, points out, in the area of sex-discrimination, the inchoate state of legal guidelines suggest that good faith, coupled with reasonable grounds to believe one is acting within the law, should be sufficient to preclude liability for damages. Properly applied, such a test, based on the circumstances of each case, maintains the effectiveness of § 1983 actions while providing conscientious state officials with some protection against the cutting edge of a rapidly developing legal doctrine.

We are persuaded from our consideration of the record that, in fact, the clerk demonstrated a reasonable basis for his good faith actions and was justified in raising this defense to avoid monetary liability. We sustain it.

III.

Although Thomas is immune from damages, by virtue of his being a legislative employee, he is not immune from suit and the grant of equitable relief. Legislative employees who participate in unconstitutional activity are responsible for their acts. Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Thus, we turn to the merits of the claim for equitable relief.

Our starting point is the district court’s finding, which was not clearly erroneous, that “plaintiff was denied employment as a temporary employee of the Senate of South Carolina at the beginning of the January, 1971 Session solely because of her sex.” Plaintiff’s challenge to the employment practices of the South Carolina Senate is grounded primarily on the equal protection clause of the fourteenth amendment. She urges us to find sex a “suspect classification,” which would require “close judicial scrutiny” of a governmental action based upon such a classification, see, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).

Until recently an argument that a classification based upon sex violated the equal protection clause bore little chance of success. However, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L. Ed.2d 225 (1971), the Court struck down a classification based upon sex, holding invalid an Idaho statute which gave a mandatory preference to a male over a female for appointment as administrator of an estate when both were equally qualified and within the same entitlement class. In describing the test of validity, the Court said:

The Equal Protection Clause [denies] 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 . . .” [citation omitted]. The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of [the statute], (emphasis supplied).

404 U.S. at 75-76, 92 S.Ct. at 253-254.

Thus Reed, in a case of invidious sex discrimination, prescribed as a test of validity the presence of a “fair and substantial” relation between the basis of the classification and the object of the classification. A classification based upon sex is less than suspect; a validating relationship must be more than minimal. What emerges is an “intermediate approach” between rational basis and compelling interest as a test of validity under the equal protection clause. Green v. Waterford Board of Education, 473 F.2d 629 (2 Cir. 1973); Wark v. Robbins, 458 F.2d 1295, 1297 n. 4 (1 Cir. 1972); Gunther, The Supreme Court, 1971 Term. Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 17 (1972).

When we apply the test of Reed, we are compelled to conclude that S.525 denies equal protection. The “public image” of the South Carolina Senate and of its members is obviously a proper subject of state concern. Apparently, the South Carolina Senate felt that certain functions performed by pages on behalf of senators, e. g. running personal errands, driving senators about in their autos, packing their bags in hotel rooms, cashing personal checks for senators, etc., were “not suitable under existing circumstances for young ladies and may give rise to the appearance of impropriety.” Resolution S.525, n. 2, supra. In their brief, defendants argue that “[i]n placing this restriction upon female pages, the Senate is merely attempting to avoid placing one of its employees in a conceivably damaging position, protecting itself from appearing to the public that an innocent relationship is not so innocent, and maintaining as much public confidence while conducting the business of the people of South Carolina as possible.”

We find this rationale unconvincing. It rests upon the implied premise, which we think false, that “[o]n the one hand, the female is viewed as a pure, delicate and vulnerable creature who must be protected from exposure to criminal influences; and on the other, as a brazen temptress, from whose seductive blandishments the innocent male must be protected. Every woman is either Eve or Little Eva — and either way, she loses.” Johnson and Knapp, Sex Discrimination By Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 704-5 (1971). See also, Seidenberg v. McSorley's Old Ale House, Inc., 317 F. Supp. 593, 600 (S.D.N.Y.1970); Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal. Rptr. 329, 485 P.2d 529 (1971). We have only to look at our own female secretaries and female law clerks to conclude that an intimate business relationship, including traveling on circuit, between persons of different sex presents no “appearance of impropriety” in the current age, graduated as we are from Victorian attitudes. We note also that South Carolina has had female senators. While the record does not reflect their ages, the association of female senator with male page has not given rise to a sufficient “appearance of impropriety” to require legislative regulation which is the reverse of S.525. In short, present societal attitudes reject the notion that, in most forms of business endeavor, free association between the sexes is to be limited, regulated and restricted because of a difference in sex.

The requirements of S.525 of a written statement from the female’s parent or guardian assuming responsibility for her transportation, safety and well-being and for her “strict supervision” stand on no firmer ground. Adult females, or nearly adult females, are no longer chattels of their husbands or parents. If they are tendered and accept special protection or special courtesies, there is no violation of right; but unwelcome special protection, especially denial of employment opportunity, foisted upon them is counter to modern law and modern social thinking. We do not question the right of the Senate of South Carolina to make such regulations and to exercise such control as it may think appropriate in keeping with its sense of propriety as to the duties of all pages, male and female. But such regulation and control must be kept within the bounds of the Constitution. The latter does not permit denial of employment opportunity to female pages because they are female.

Since we can find no “fair and substantial” relation between the object of S.525 (combatting the “appearance of impropriety”) and the ground of difference (sex) upon which the classification rests, we reverse with regard to the denial of declaratory and injunctive relief and remand the case for further proceedings.

Affirmed in part; reversed in part; costs awarded to plaintiff.

      . Suit was grounded on the fourteenth amendment and 42 U.S.C.A. §§ 1983 and 1988. The district court was vested with jurisdiction under 28 U.S.C.A. § 1343(3) and (4) and 42 U.S.C.A. §§ 1983 and 1988.

      . A SENATE RESOLUTION RELATING TO CLASSIFICATION OF SOME PART-TIME EMPLOYEES AND CERTAIN RESPONSIBILITIES RELATING TO THEIR EMPLOYMENT.
      Whereas, the Senate desires to create reasonable classification of some part-time employees heretofore generally known as pages ; and
      Whereas, applicants for these part-time positions must be sponsored by a Senator and the final selection of these applicants is a prerogative of the Senators, subject to such rules and regulations as the Clerk of the Senate shall prescribe; and
      Whereas, it is the sense and judgment of the Senate that certain functions performed by pages in personal attendance upon the Senators and in the performance of personal errands for Senators while the Senate is in session are not suitable under existing circumstances for young ladies and may give rise to the appearance of impropriety; and
      Whereas, recent renovations in the State House have provided additional office space for routine clerical and committee functions; and
      Whereas, some routine clerical and committee duties may be appropriately performed by young ladies ; and
      Whereas, the Senate wishes to establish reasonable classifications and responsibilities for the filling of these positions according to the duties required, with reasonable restrictions.
      Now, therefore,
      Be it resolved by the Senate of the State of South Carolina:
      That the following classifications of some part-time employees are:
      1. Senate pages, whose primary duties shall be assisting the regular high school pages (three) in performing the various errands and duties as requested by the Senators, President and clerks, shall be male students.
      2. Clerical assistants, whose primary duties shall be posting of records or indexing, bookkeeping, preparation and distribution of temporary acts and proofreading, may be female students.
      3. Committee attendants, whose primary duties shall be answering telephones, assisting with committee records, relaying of messages to Senators attending committee meetings, and other duties assigned by the Chairman, may be female students.
      Be it further resolved that no female student nominated by a Senator to one of these positions classified herein shall be appointed until the Senator files with the Chairman of the Rules Committee of the Senate a written statement, accompanying such appointment, from the parent or guardian of the female student concerned that such parent or guardian:
      (1) Will be responsible for the safe transportation of the female student between the Senate and the female student’s place of local abode, and return; and
      (2) Will assume full responsibility for the safety, well-being and strict supervision of such female student while she is in her place of local abode.
      The Rules Committee of the Senate shall hear and report to the Senate complaints concerning the refusal of appointment of Senate pages, committee attendants and clerical assistants by the Senators nominating them, and the failure of a Senator promptly to make complaint to the Rules Committee shall be deemed to be a withdrawal of the nomination giving rise to the complaint.

      . Where good faith as a defense to damages is permitted, it is unnecessary to give any consideration to the significant issue of whether the eleventh amendment bars the granting of monetary damages against a state officer sued in his official eapacity. Compare Rothstein v. Wyman, 467 F.2d 226 (2 Cir. 1972); Like v. Carter, 353 F.Supp. 405 (D.E.Mo.1973); and Westberry v. Fisher, 309 F.Supp. 12 (D.Me.1970) with Jordan v. Weaver, 472 F.2d 985 (7 Cir. 1973).

      . Plaintiff argues that in damage actions against public officials charged with an unconstitutional violation of property or contractual rights, courts have generally not adopted the defense of good faith, citing, inter alia, the back pay cases of Harkness v. Sweeny Independent School District, 427 F.2d 319 (5 Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971) and Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 (4 Cir. 1966). But, as these cases point out, a claim for back pay is not simply a claim for damages, but rather an integral part of the equitable remedy of reinstatement. No question of reinstatement is involved here, and the damage claim, although labeled as one for back pay, is independent from plaintiff’s claim for injunctive relief to ban invidious sex classifications in the hiring of pages.

      . Bradwell v. Illinois, 16 Wall. 130, 83 U.S. 130, 21 L.Ed. 442 (1873) (license to practice law); Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908) (limitation on hours of work); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948) (prohibiting employment as a bartender); Hoyt v. Florida, 386 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (absolute right of exemption from jury duty). But see Alexander v. Louisiana, 405 U.S. 625, 634, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (concurring opinion of Mr. Justice Douglas).

      . For a sex discrimination case espousing the concept of a “suspect classification,” which requires a compelling state interest to sustain it, see Sail’er Inn v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971). See also, Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment? 84 Harv. L.Rev. 1499 (1971); Johnson and Knapp, Sex Discrimination By Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 686 (1971); United States ex rel. Robinson v. York, 281 F.Supp. 8, 14 (D. Conn.1968).

      . See, e. g., McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), “[t]he constitutional safeguard [the equal protection clause] is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective.”

      . See Dahlstrom, ed., The Changing Roles of Men and Women (1967) ; Montagu, Man’s Most Dangerous Myth 181-84 (4th ed. 1964); Myrdal, An American Dilemma 1073-78 (2d ed. 1962); Watson, Social Psychology: Issues and Insights 435-56 (1966); Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo.Wash.L. Rev. 232, 235-42 (1965).

      . This resolution was modeled on S.Res. 112, adopted by the United States Senate on May 13, 1971:
      Resolved, That no individual shall be denied appointment as a Senate page, elevator operator, or postoffice employee, or as a Capitol policeman whose compensation is disbursed by the Secretary of the Senate, solely on the basis of sex.
      In the case of Senate pages, however, until such time as the fireproof building containing dormitory and classroom facilities, as authorized by section 492 of the Legislative Reorganization Act of 1970, is constructed and the pages are living under appropriate supervision in such building, the Sergeant at Arms of the Senate shall promulgate and have in effect regulations for the appointment of pages of the Senate requiring that no female page shall be appointed by a Senator until the Senator files with the Sergeant at Arms a written statement accompanying such appointment that the Senator—
      (1) will be responsible for the safe transportation of the female page he appoints between the Senate and the page’s place of local abode and return ; and
      (2) will assume full responsibility for the safety, well-being, and strict supervision of such female page while such page is in her place of local abode.
      It is noteworthy that the U. S. Senate Resolution makes no distinction based on sex regarding employment of pages. The restrictions imposed on females are temporary in nature and they are not a fair indicator of decision here when one considers that U. S. Senate pages are of high school age while South Carolina Senate pages are usually college and law students.

      . Our resolution of this case suggests no departure from our recent holding in Cohen v. Chesterfield County School Board, 474 F.2d 395 (4 Cir., Jan. 18, 1973), rev’g 326 F.Supp. 1159 (E.D.Va. 1971). In Cohen, this Court applied the rational basis test to uphold a maternity leave regulation of the School Board against an equal protection attack. The majority concluded that the School Board regulation was “not an invidious discrimination based upon sex. It does not apply to women in an area in which they may compete with men,” i. e., having children. In contrast, the selection process for jobs as senate pages is an area in which women could be very much in competition with men.


author: CAMPBELL, Circuit Judge.

text:
    Herman A. STUHL, Plaintiff-Appellant, v. G. Joseph TAURO et al., Defendants-Appellees.
    No. 72-1390.
    United States Court of Appeals, First Circuit.
    Heard March 7, 1973.
    Decided March 29, 1973.
    Robert W. Hagopian, Wrentham, Mass., for plaintiff-appellant.
    Lawrence T. Bench, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., were on brief, for defendants-appellees.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   CAMPBELL, Circuit Judge.

Plaintiff-Appellant has conceded that the sole issue to be decided is whether the district court erroneously denied plaintiff’s request for a three-judge court. We conclude that the district court was correct in its determination, although we do not find it necessary anew to reach the issue of whether a substantial federal question was presented, preferring instead to rest our decision upon principles of res judicata and direct estoppel.

Plaintiff-Appellant’s complaint, with one addition hereinafter described, is practically identical to one he filed against the same defendants on June 18, 1971 (D.Mass. No. 71-1215-W). That suit was dismissed by the district court on June 30, 1971, for want of a substantial federal question. Proceeding under Local Rule 6, we affirmed dismissal on September 21, 1971, stating, in part:

Inasmuch as no substantial constitutional question exists it was appropriate for the single judge to dismiss the complaint and not to invoke a three-judge district court.

Plaintiff-Appellant’s motion for leave to file a petition for rehearing late was denied on October 12, 1971, and he apparently did not file a petition for certiorari in the United States Supreme Court.

Plaintiff-Appellant has thus fully and completely litigated the question of whether his complaint presented a substantial federal question; ^e may not now relitigate this issue, regardless of whether the prior decision is deemed to be on the merits or merely “jurisdictional.” Restatement of Judgments §§ 45(c), comment d and 49, comment b; Lyle v. Bangor & Aroostook Railroad Company, 237 F.2d 683, 685 (1st Cir. 1956) (citing Restatement of Judgments § 45(c), comment d); cert. denied, 353 U.S. 913, 77 S.Ct. 672, 1 L.Ed.2d 667 (1957); Acree v. Air Line Pilots Association, 390 F.2d 199, 203 (5th Cir. 1968); cert. denied 393 U.S. 852, 89 S. Ct. 88, 21 L.Ed.2d 122 (1968); Estevez v. Nabers, 219 F.2d 321 (5th Cir. 1955); American Hawaiian Ventures v. M. V. J. Latuharhary, 257 F.Supp. 622, 627-628 (D.N.J.1966); LaBarbera v. Batsch, 10 Ohio St.2d 106, 227 N.E.2d 55, 59 (1967); St. Paul Hosp. Wkrs. H. & W. v. Bethesda Lutheran Hosp., 265 Minn. 256, 121 N.W.2d 325, 326 (1963). As the Fifth Circuit observed in Estevez v. Nabers, supra 219 F.2d at 323-324:

Plaintiff insists that the first judgment was not “on the merits” and should not bar this subsequent action. The dismissal of the first action can be ascribed to a lack of jurisdiction or to the absence of a substantive claim; actually the ground of dismissal amounted to both of these. But even if regarded as a decision not on the merits, the first action precludes a new adjudication of the question already decided. . . .

The only difference between Plaintiff-Appellant’s complaint in 71-1235-W and the present case is an additional sentence to the effect that he “is arbitrarily being denied admission to law school.” This minor addition does not raise a question sufficiently distinct from those raised previously to avoid the estoppel created by decision of the prior action. “[Wjhether the first decision was on the merits or not is not important here, since we regard the two actions as not materially different, and the question actually decided in the first action disposes of the present one as well.” Estevez v. Nabers, supra 219 F.2d at 324.

The observations of Mr. Justice Frankfurter in Angel v. Bullington, 330 U.S. 183, 192-193, 67 S.Ct. 657, 662, 91 L.Ed. 832 (1947) may be pertinent:

The doctrine of res judicata reflects the refusal of law to tolerate needless litigation. Litigation is needless if, by fair process, a controversy has once gone through the courts to conclusion . . . . And it has gone through, if issues that were or could have been dealt with in an earlier litigation are raised anew between the same parties.

Judgment affirmed.


author: SPRECHER, Circuit Judge.

text:
    Janet M. HERREMAN et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 72-1055.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 24, 1973.
    Decided March 22, 1973.

      Jack Aulik, Sun Prairie, Wis., for plaintiffs-appellants.
    Harlington Wood, Jr., Morton Hollander, Robert M. Feinson, Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendants-appellees.
    Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The question is whether the widow of a National Guard officer killed while returning from a Florida fishing trip with the Adjutant General of the State of Wisconsin, as a non-paying passenger on a military aircraft, may sue the United States under the Federal Tort Claims Act.

Jerold F. Herreman was a Captain in the Wisconsin Army National Guard and the Army National Guard of the United States. On January 26, 1969, he joined Major General Ralph Olson, the Adjutant General of the State of Wisconsin, in Key West, Florida. The General and his wife were vacationing in Florida and had invited Captain Herreman to come down from Milwaukee to go fishing with the General. Intending to return home, on January 29, 1969, the Captain appeared at the Key West Naval Air Station, Florida, in military uniform and requested, on a space-available basis, transportation back to Milwaukee on the military aircraft assigned to transport General Olson home. The request was granted. The aircraft crashed on its flight from Key West to Milwaukee, killing General Olson, his wife, and Captain Herreman.

The visit to Key West to fish with the General was a purely social visit. At the time of the crash of the aircraft, Herreman was not on any mission pertaining to the Wisconsin Army National Guard. Neither he nor his unit of assignment was in active federal service. He was not on active duty for training or inactive duty training in his Army National Guard of the United States status, nor was he performing training or duty as a member of the Army National Guard.

Herreman’s widow brought this action pursuant to 28 U.S.C. § 2674 of the Federal Tort Claims Act, asserting that the United States is liable. She also named the Wisconsin Air National Guard as a defendant. After several affidavits were filed by the parties, the district court entered a summary judgment in favor of the United States and dismissed the claim against the Wisconsin Air National Guard. The court concluded at 332 F.Supp. 763, 766 (E.D.Wis.1971):

“[Ejven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then (whichever way the rule is phrased) he will be barred from suing the Government. In the instant case, Captain Herreman was fatally injured while taking advantage of special travel privileges granted military personnel. While taking advantage of this privilege, it is undisputed that he was under military jurisdiction. The fact that he was not on active duty or that he was pursuing purely pleasurable activities is of no . . . relevance . . .

The outer dimensions of this problem are measured by two Supreme Court cases decided in successive years.

In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), two brothers who were then members of the armed forces of the United States on furlough, driving their own automobile along a highway, collided at an intersection with a United States Army truck. The Court held that their injuries were “not incident to their service” and that their claims were therefore cognizable under the Federal Tort Claims Act. 28 U.S.C. § 2674.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), three servicemen while on active duty and not on furlough sustained injury due to the negligence of others in the armed forces. The Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159.

The issue in this ease is whether Herreman’s activity at the time he was killed in the crash was incident to his service.

At the time of his death Herreman was a member of the Wisconsin Army National Guard with the rank of captain, assigned to the Selective Service Section, Headquarters and Headquarters Detachment at Madison, Wisconsin. In accordance with 10 U.S.C. § 3351(a), he was also a federally recognized captain in the Army National Guard of the United States, a reserve component of the United States Army. 10 U.S.C. § 3077. “The Army consists of . the Regular Army, the Army National Guard of the United States . . .”. 10 U.S.C. § 3062(c)(1). Hence, Herreman at the time of his death was a member of the United States Army. See Layne v. United States, 190 F.Supp. 532 (S.D.Ind.1961), affirmed, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U. S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962).

“The transportation of members of the Army throughout the United States shall be under the immediate control and supervision of the Secretary of the Army and agents appointed or designated by him.” 10 U.S.C. § 4741. Similarly, the transportation of members of the Air Force is under the control and supervision of the Secretary of the Air Force. 10 U.S.C. § 9741.

The aircraft in which Herreman was killed was military property of the United States but was assigned to the Wisconsin Air National Guard for its use. At the time of the crash, the aircraft had been on a duly authorized flight for the purpose of providing navigational training for Wisconsin Air National Guard personnel on board the aircraft and of transporting Major General Olson from Key West Naval Air Station, Florida, to Milwaukee, Wisconsin.

Pursuant to his power to control and supervise the transportation of “members [and] . . . equipment” of the Air Force (10 U.S.C. § 9741), of which the Air National Guard of the United States is a component part (10 U.S.C. § 8062(d)(1), the Secretary of the Air Force promulgated Air National Guard Regulations No. 76-6 (May 23, 1950), which included paragraph 4b which describes passengers to include as follows:

“Military personnel in appropriate uniform in the categories indicated below, without reimbursement, upon proper identification and when the aircraft is on a duly scheduled training flight, or on a strictly military mission. No flight of an Air National Guard aircraft will be scheduled for the specific purpose of transporting military personnel on leave but such personnel may ride as passengers when the aircraft is on a training flight or a strictly military mission.
-X- * * -X- -X- *
“(2) Military personnel of the National Guard . . . ”

It is not disputed that the aircraft in this case was on a duly authorized and duly scheduled navigational training flight. Herreman was riding in uniform on the aircraft as a non-paying passenger. While on board the aircraft, he was subject to military courtesies and discipline. Most important however, he was subject to the “immediate control and supervision” of both the Secretary of the Army and the Secretary of the Air Force and “agents appointed or designated” by them. He was on board a military training flight engaged in a military mission.

The situation comes very close to that existing in Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955), where a cadet on leave from the United States Military Academy at West Point was “riding gratuitously in a military plane under military discipline and under the laws and regulations in force at the time.” Id. at 550. In dismissing the claim of the cadet’s parents under the Federal Tort Claims Act, the Court said at 551, 552:

“The Trial Court was undoubtedly correct in holding that a cadet riding under military discipline on an army plane under control of a superior officer has no claim under the Act for injury sustained through whatever cause. This principle would not vary even though the service man were on leave and whether he were on the plane voluntarily or by command. He was in line of duty. Under such circumstances, his parents could not recover for his death.
-X -X- * -X -X *
“ . . . In riding aboard that plane, under these allegations, Herman Archer was either ‘in command’ or ‘under command.’
“The complaint in this case on its face did not state a cause of action or a claim upon which relief could be granted against the United States.”

Here also, Herreman was “in line of duty” and “under command.” Under those circumstances, his activity at the time he was killed was incident to his service. The district court properly rendered judgment for the government under Feres v. United States, supra.

It is significant that if Herreman had sought passage without his uniform and in the capacity of non-military or civilian personnel, it would have been necessary (1) for Major General Olson to execute “a certificate to be attached to the flight clearance certifying” that Herreman was “on National Guard business,” Air National Guard Regulations No. 76-6, par. 4j, and (2) for Herreman to execute a release releasing and discharging “the Government of the United States, and all of its officers and agents, acting officially or otherwise, from any and all claims, demands, actions, or causes of action, on account of my death or on account of any injury to me which may occur by reason of the said flight . . . .” No. 76-6, par. 6.

The judgment is affirmed.

Affirmed.

      . As an Army officer, Herreman was also subject to 10 U.S.C. § 4743, which provides :
      “Under such conditions as the Secretary of tlie Army may prescribe, officers of the Army may, in the performance of their duties, use means of transportation provided for the Army and its supplies.” A similar statute applies to Air Force officers using transportation provided for the Air Force. 10 U.S.O. § 9743.