Appeal from a judgment in a 42 U.S.C. § 1983 action following a two-day jury trial in the United States District Court for the District of Vermont, Albert W. Coffrin, Judge, finding that appellant impermissibly infringed appellees' constitutional right to equal protection, and from a damage award of $39,375 after a second trial solely on damages. Cross-appeals from the district court's order granting the second trial on damages and from a denial of costs and attorneys' fees. Judgment reversed because of insufficiency of evidence to support finding in favor of appellees.
Before Kaufman, Chief Judge, Oakes, Circuit Judge, and Tenney, District Judge.*fn*
A dairy farm inspector employed by the Commonwealth of Massachusetts, William Saunders, appeals from an adverse judgment in an action under 42 U.S.C. § 1983 alleging a violation of equal protection of the laws, brought by appellees Harmasse ("Red") and Elizabeth LeClair, owners of a Vermont dairy farm. Following a two-day jury trial in the United States District Court for the District of Vermont, before Albert W. Coffrin, Judge, the jury returned a verdict for the LeClairs and awarded damages of $44,152. The district court subsequently ordered a partial new trial on the damages, which produced a lesser award of $39,375. Saunders appeals from the original verdict and from the second damage award. The LeClairs cross-appeal from the court's original order for a partial new trial on the damages and from denial of costs and attorneys' fees. Because the evidence was insufficient to support a finding of a violation of equal protection, we reverse.
Massachusetts requires that all dairy farms shipping milk into and within the Commonwealth pass an annual inspection to guarantee sanitary conditions. To this end, the Commonwealth employs a group of inspectors that covers New England and upper New York state. In the mid-1960s, Massachusetts adopted a policy designed to upgrade the quality of farm water supplies. In 1967, the Massachusetts Milk Regulation Board promulgated regulations to govern farm inspections that required farm water supplies to be "easily accessible, adequate, and of a safe sanitary quality," so as to assure safe water for cleansing milk storage tanks and utensils. Only water supplies coming from municipal systems or covered and protected private supplies such as deep wells were mentioned as acceptable under the regulation. Because many farmers had only unprotected water sources, and because conversion to approved water sources was in some cases costly or infeasible, the policy was only gradually enforced.
Appellees own a 235-acre, 50-cow dairy farm in Charlotte, Vermont, which appellant had been inspecting since around 1950. By 1975, out of the 1,200 farms within Saunders' territory, only 10 or 11 remained without an approved water source. These included the LeClair farm, which used an unprotected and sometimes visibly dirty open pond as the water supply to its milk room. Since adoption of the new policy around 1965, Saunders had suspended many farms for lack of satisfactory water supplies. This was true despite the fact that in the area it was often difficult to obtain water by drilling.
Beginning in 1971, Saunders wrote at least annually in his "Dairy Farm Inspection Reports" on the LeClair farm that they should "provide protected water supply for milk room," although he nevertheless continued to approve the farm for milk shipment to Massachusetts. During the April 9, 1975 inspection visit to the farm, Mr. LeClair told Saunders about an existing 600' deep drilled well, but stated that it probably had insufficient water to supply the milk room. Saunders urged Mr. LeClair to connect it, indicated that he was not approved for the following year, and said that another inspection would occur within a month. Saunders did not return until December 23, 1975, seven days before farm approval was needed to ship milk in 1976. He had heard from an H. P. Hood field inspector in the intervening months that Mr. LeClair had not hooked up the well, although he had had a well-digger look at it. Saunders, upon confirming this for himself, disapproved the farm and left an inspection report stating: "provide a protected safe water supply for milk room use. No further delays allowed on this problem." Mr. LeClair, who had not been present during this inspection, subsequently received a letter on January 14, 1976 officially suspending his farm. The LeClairs' attorney then sent Saunders a letter in late February, suggesting that this clients had been the victim of inequitable treatment and requesting an immediate reinspection. Saunders, with another inspector, returned to the farm on March 12, 1976, gave it an unusually detailed inspection, and still declined to give approval. Since that time, the LeClairs have not shipped milk to Massachusetts and for all practical purposes are out of business.
This case is lodged in a murky corner of equal protection law in which there are surprisingly few cases and no clearly delineated rules to apply. Appellees do not allege an unconstitutional state statute or regulation that impermissibly classifies dairy farms into different categories. If they had done so, such a claim would have almost certainly failed. Economic regulation concerned with public health is squarely within the state's police power, and any classification of water supplies and farms not wholly irrational thus would be proper. Moreover, equal protection does not require that all evils of the same genus be eradicated or none at all. Railway Express Agency, Inc. v. New York, 336 U.S. 106, 109-10, 69 S. Ct. 463, 465, 93 L. Ed. 533 (1949). Instead appellees' charge boils down to one of selective enforcement or prosecution by a state official pursuant to a lawful state regulation. The claim is that of the ten or eleven farms with unprotected water supplies only two were suspended and the one other than the LeClairs' was quickly reinstated.
The doctrine of immunity and the law of equal protection intersect in determining whether appellant is liable for damages in this § 1983 action. Mere failure to prosecute other offenders is not a basis for a finding of denial of equal protection. United States v. Rickenbacker, 309 F.2d 462 (2d Cir. 1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963). So too is appellant entitled to some degree of qualified immunity as an executive official for acts performed in the course of official conduct. Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572 (1980); Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S. Ct. 1683, 1692, 40 L. Ed. 2d 90 (1974). Given his responsibilities as an inspector who makes decisions necessarily affecting the economic well-being of farmers, Saunders must have the confidence to "call them as he sees them," and therefore should be shielded, for reasonable mistakes, from damage actions brought by unhappy farmers. See Wood v. Strickland, 420 U.S. 308, 319-20, 95 S. Ct. 992, 999, 43 L. Ed. 2d 214 (1975). At the same time, whatever protection is provided should not extend to the point where Saunders may operate with unbridled discretion, approving or suspending farmers by whim or caprice. Wood v. Strickland, supra, describes the scope of immunity in the school context: an official
is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.
Id. at 322, 95 S. Ct. at 1001. The Court there suggested an inquiry into whether the official
has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.
Id. Wood appears to propose, then, a test containing two independent parts: did the official, with subjective or objective knowledge, violate a person's constitutional rights, or did the official act with malicious intent to injure the person in some "nonconstitutional" sense? We think the Wood standard of ...