Petition — Stebbins v. Weaver

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. . — 46-609

JOHN L. STEBBINS, JR.,

Petitioner,

V

JOHN C. WEAVER and THE BOARD OF REGENTS OF THE

UNIVERSITY OF WISCONSIN SYSTEM,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

GERRY M. MILLER

211 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

(414) 271-4500

Attorney for Petitioner

Of Counsel

WALTER F. KELLY

GOLDBERG, PREVIANT & UELMEN s.c.

211 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

(414) 271-4500

St. Louis Law Printing Cce., Inc., 812 Olive Street 63101 314-231-4477

oad

INDEX

Page

PEE ibn Can heads Hoge os CRG TU OLe ORO CR Ra SRE eS l

EE, o cncacdheeks spetn<obade<ceuue cen vs l

RE Wis Chie aa CORRE Os hee BE kee 2

SE Do oda ce cnas beeMa deen eeenaess 2

Constitutional and Statutory Provisions Involved ....... 4

ee ee «cin ste eee ech ee bl cans 4

A. Facts Respecting the Denial of Tenure .......... 4

B. Facts Respecting the History of the Trial Litigation 9

C. Facts Respecting the History of the Appellate Litiga-

SN ew sh a a A ead nore WE So ce eH ES 14

Reasons for Granting the Writ ............2cceceees 17

I. With Respect to the Question of “Property”, the

Writ of Certiorari Should Be Granted Because the

United States Court of Appeals Exceeded Its Sub-

ject Matter Jurisdiction, Usurped the Proper Role

of the District Court Judge in Determining the

Relevant Local Law of the State of Wisconsin, In-

correctly Determined the Relevant Local Law of

the State of Wisconsin, and Established an Overly

Broad Per Se Rule Inconsistent With Prior Decisions

of This Court and Destructive of the Due Process

Rights of Non-Tenured Public Employees in the

States of Illinois, Indiana, and Wisconsin ....... 17

I]. With Respect to the Question of “Liberty”, the

Writ of Certiorari Should Be Granted Because the

United States Court of Appeals Exceeded Its Sub-

ject Matter Jurisdiction and Ruled Inconsistently

With Prior Decisions of This Court and Because

This Court Has Granted Certiorari in Similar Cases

Presently Pending Before This Court as to Which

the Courts of Appeals Are Divided ............ 21

III. With Respect to the Question of Administrative

“Arbitrariness and Caprice”, the Writ of Certiorari

Should Be Granted Because the United States Court

of Appeals Unduly Narrowed the Scope of Fed-

eral Judicial Review Inconsistently With Prior De-

cisions of This Court and Destructively to the Due

Process Rights of Non-Tenured Public Employees

in the States of Illinois, Indiana, and Wisconsin,

and Because This Case Presents a Vehicle for

Clarifying a Question of Public Importance as to

Which the Law Is Unsettled ................. 22

£6: he aR, RReIG Cit hoe eo Sh WACO oe rs ole 25

Appendix A—Order of the United States Court of Appeals

for the Seventh Circuit Denying Plaintiff-Appellant’s

Petition for Rehearing and Suggestion of Rehearing

REE Wk Weed a 9 y's Deewana ent iaha ater ou 6 A-1

Appendix B—Petition of the Plaintiff-Appellant, Cross-

Appellee for Rehearing of this Court's Opinion and

Judgment of July 7, 1976 and Suggestion of Rehearing

En Banc

Appendix C—Opinion of the United States Court of Ap-

peals for the Seventh Circuit of July 7, 1976 ........ A-14

Appendix D—Opinion of the United States District Court,

Western District of Wisconsin, of June 3, 1975

Appendix E—Opinion and Order of the United States Dis-

trict Court, Western District of Wisconsin, of July 3,

1975

Appendix F—Constitutional and Statutory Provisions In-

Conclusion

CSE se kpeeeudunue pieawavaeia te see tC Keas es A-46

Cases Cited

Anonymous v. Kissinger, 499 F. 2d 1097 (D.C. Cir. 1974) 24

Arnett v. Kennedy, 416 U.S. 134 (1974)... 0.0.0.2... 23

Bach v. Coughlin, 508 F. 2d 303 (7th Cir. 1974) ...... 17

Bishop v. Wood, — U.S. —, 96 S. Ct. 2074, 48 L. Ed.

ee See Ge Gk I iv oivies occ vokeact 18, 22, 24

Board of Regents v. Roth, 408 U.S. 564

SS ee rer 11, 12, 13, 15, 18, 19, 21, 24

Buhr v. Buffalo Pub. School Dist. No. 38, 509 F. 2d 1196

to gg IM rere ee er ee eee se 22, 24

Cafeteria Workers Union v. McElroy, 367 U.S. 886 (1961) 23

Chung v. Park, 514 F. 2d 382 (3rd Cir. 1975) ........ 23

City of Kenosha v. Bruno, 412 U.S. 507 ss 6 os wu 17

Cowley v. Velger, — F.2d — (2nd Cir. 1975), 44 Law

Week 3748, 45 Law Week 3023 (1976) ............ 22

Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) 23

Department of Banking v. Pink, 317 U.S. 264 (1942) ... 2

Foman v. Davis, 371 U.S. 178 (1962) ............-... 17

Goss v. Lopez, 419 U.S. 565 (1975) .........555005: 22

Hampton v. Mow Sun Wong, — U.S. —, 96 S. Ct. —,

48 L. Ed. 2d 495 (June 1, 1976) ..............4... 22

Hines v. Anchor Motor Freight, Inc., — U.S. —, 96 S.

Ct. 1048, 47 L. Ed. 2d 231 (March 3, 1976) ...... 24, 26

Hortonville Joint School District No. 1 v. Hortonville Edu-

cation Association, 66 Wis. 2d 469 (1975), affd., —

U.S. —, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (June 17, 1976) 20

Huntley v. Comm. School Board of Brooklyn, — F. 2d

—, 44 LW 2574 (2nd Cir. May 12, 1976) ....20, 22, 26

Jeffries v. Turkey Run Consolidated School District, 492

we Oty, Le wi Peererrrrrreyr Tr rTrerrer 24

Johnson v. Board of Regents of the University of Wiscon-

sin System, 377 F. Supp. 227 (W.D. Wis. 1974), affd.

summ., 510 F. 2d 975 (7th Cir. 1975) .........-.4-- 18

Konigsberg v. State Bar of California, 353 U.S. 252 (1957) 23

Liberty Mutual Insurance Co. v. Wetzel, — U.S. —, 96

S. Ct. 1202, 45 L. Ed. 2d — (March 23, 1976) ...... 17

Moore v. Fowinkle, 512 F. 2d 629 (6th Cir. 1975) ...... 17

Paul v. Davis, — U.S. —, 96 S. Ct. 1155, 47 L. Ed. 2d

GES GE BA, GGG cece tec cecwnseccccvesees 21

Perry v. Sindermann, 408 U.S. 593

eer rer rs ae ee 11, 12, 13, 15, 18, 26

iV

Ruchman & Hansen, Inc. v. Contracting & Material Co.,

oe ee te eee 17

Russell v. Hodges, 470 F. 2d 212 (2nd Cir. 1972) ...... 22

Scheelhaase v. Woodbury Cent. Community School District,

465 F. 26 297 Ge CR. FTEP coc cies tiene 24

Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). 23

Slochower v. Board of Education, 350 U.S. 551 (1956) .. 23

Terkildsen v. Waters, 481 F. 2d 201 (2nd Cir. 1973) .... 17

United States v. Healy, 376 U.S. 75 (1964) ............ 2

United States v. Ramos, 413 F. 2d 743 (Ist Cir. 1969) .. 18

United States v. Robinson, 361 U.S. 200 (1960) ........ 17

Vaca v. Sipes, 386 U.S. 171 (1967) ................ 24, 26

Weathers v. West Yuma County School District R-J-1, 530

F. 26 S55 COG Cie. ORE oo tcc ccuesnesewene 22, 24

Wieman v. Urdegraff, 344 U.S. 183 (1952)............ 23

Texts Cited

Comment: Substantive Due Process: The Extent of Public

Employees’ Protection from Arbitrary Dismissal, 122 U.

ke 24

Comment: The Due Process Rights of Public Employees,

30 N.Y.U. &. Rev. SOO GQOVED... . . vn aren eee 22, 24

Fed. R. Agp. P. Sd «00sec vendtenseeeee 17

Frug, Does the Constitution Prevent the Discharge of Civil

Service Employees?, 124 U. Pa. L. Rev. 942 (1976).... 24

Johnson, Probationary Government Employees And The

Dilemma of Arbitrary Dismissals, 44 Cincinnati L. Rev.

GOS (ODTS) . 22. ee vecussabeuese sae 22, 24

9 Moore’s Fed. Prac. € 203.18 at pp. 752-57 (Matthew

Senter Ce. 8079) ...icccccse. seen 17

Tribe, Structural Due Process, 10 Harv. C. R. & CL. L.

Baa. SEP CIGVED «oc cvvccsscusnde sen 24

Statutes Cited

§ 36.06(1), (2), Wis. Stats. Ann. (1966) .............. 19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

a

JOHN L. STEBBINS, JR.,

Petitioner,

v

JOHN C. WEAVER and THE BOARD OF REGENTS OF THE

UNIVERSITY OF WISCONSIN SYSTEM,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

Petitioner, John L. Stebbins, Jr., respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit entered in this

case on July 7, 1976.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit of July 7, 1976 is reported at 537 F. 2d 939

und reprinted in Appendix C hereto (infra, pp. App. A-14-A-19).

—

The opinion of the United States District Court, Western Dis-

trict of Wisconsin, of June 3, 1975 is reported at 396 F. Supp.

104 and reprinted in Appendix D hereto (infra, pp. App. A-20-

A-41). The further opinion of the United States District Court,

Western District of Wisconsin, of July 3, 1975 is unreported but

is printed in Appendix E hereto (infra, pp. App. A-42-A-45).

JURISDICTION

The judgment of the United States Court of Appeals for the

Seventh Circuit was entered on July 7, 1976. A timely peti-

tion for rehearing, with suggestion of rehearing en banc, printed

in Appendix B hereto (infra, pp. App. A-2-A-13), was denied on

August 3, 1976 by order, printed in Appendix A hereto (infra,

p. App. A-1), and this petition for certiorari was filed within

90 days thereafter. The petition is timely, Department of Bank-

ing v. Pink, 317 U.S. 264 at 266 (1942): United States v.

Healy, 376 U.S. 75 at 78 (1964), and this Court has jurisdic-

tion pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

Whether a professor in the University of Wisconsin higher

educational system who performed, pursuant to two successive

three-year contracts of employment, a six-year “tenure track”

pre-tenure term of employment and who was entitled objec-

tively by virtue of university regulations, memoranda, corre-

spondence and consistent practice-in-fact, as well as by the

common law of contracts of the State of Wisconsin, to tenure,

if he satisfied certain performance criteria, which he alleges

he did in fact fully satisfy, has a “property” interest in his em-

ployment sufficient to mandate the application of the due proc-

ess clause of the Fourteenth Amendment to the United States

es)

Constitution to the University of Wisconsin's denial of tenure

to him?

Whether a professor in the University of Wisconsin higher |

educational system whose tenure denial was predicated in part

upon a statement by the responsible university tenure decision-

makers that his “research was not such as to warrant promo-

tion” qualitatively, which statement was disclosed publicly and

included in his university personnel file, and who alleges actual

foreclosure from subsequent employment opportunity in his en-

tire field of higher educational specialization and interest by

reason of the statement, its public disclosure, and its inclusion

in his university personnel file, has a “liberty” interest sufficient

to mandate the application of the due process clause of the

Fourteenth Amendment to the United States Constitution to

the University of Wisconsin's denial of tenure to him?

Whether a professor in the University of Wisconsin higher

educational system who is denied tenure and who, by assump-

tion arguendo has a property interest in his employment or a

liberty interest with respect to his tenure denial, within the

meaning of the due process clause of the Fourteenth Amend-

ment to the United States Constitution, may obtain federal ju-

dicial review of the University of Wisconsin’s denial of tenure

to him, which denial he alleges to be arbitrary and capricious

because unsupported by any basis in fact whatsoever and con-

tradicted by the entire record of his performance?

Whether the United States Court of Appeals for the Seventh

Circuit exceeded its subject-matter jurisdiction by deciding the

“property” and “liberty” questions set forth, supra, where those

questions were not appealled by the respondents (by virtue of

their disclaimer of appeal in their notice of cross-appeal, re-

iterated by them during appellate oral argument); or, in the

alternative, whether the United States Court of Appeals for the

Seventh Circuit exercised its subject-matter jurisdiction improp-

— wo

erly by deciding the “property” and “liberty” questions set forth

supra, without notice to appellate counsel, briefs, or oral anne

ment, without consideration of record facts or the Statutory

regulatory, or common law of the State of Wisconsin selovent

to those questions, and without regard to the contrary opinion

of the district court judge as to those questions and therefore

in contravention of that judge’s proper role, as set forth in

Bishop v. Wood, — U.S. —, 96 S. Ct. 2074 at 2076-77 and

nn. 9 and 10, 48 L. Ed. 2d 684 at 690-91 and nn. 9 and 10

(June 10, 1976), in assessing the relevant local law of the

State of Wisconsin?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant provisions of the Constitution of the United

States, of the Wisconsin statutes, and of the University of Wis-

consin regulatory law are set forth in Appendix F hereto (infra,

pp. App. A-46-A-50).

STATEMENT OF THE CASE

A. Facts Respecting the Denial of Tenure.

John L. Stebbins, Jr. was and is a citizen of the United States

and of the State of Wisconsin and a resident of Milwaukee,

Wisconsin.’ In 1965 he was hired as an assistant professor

' All facts set forth herein are taken from the facts set f i

= opinions of the United States District Court, Western District of

— 396 F. Supp. 104, reprinted in Appendix D hereto, infra

pp. pp. A-20-A-41, and the United States Court of Appeals for the

seventh Circuit, 537 F. 2d 939, reprinted in Appendix C hereto

A PP. App. a we ey — eg noted, in which event

nal recor i ibi

je ome A pthread pleadings, exhibits, and where oc-

—_ vn

of mathematics by the University of Wisconsin to be employed

in the mathematics department of the Milwaukee campus of the

university system. Pursuant to statute, regulation, guidelines,

memoranda, and correspondence, his appointment was for a

three-year term and was subject to renewal thereafter for a

second three-year term. It was a probationary, “tenure track”

appointment, the essence of which, under Wisconsin law, is that

the appointee will be renewed for a second three-year term and

tenured after six years of normal development in the areas of

teaching, research, and community service.* Professor Stebbins

was so informed in writing and orally. His appointment was

renewed for a second three-year term, 1968-71. During the

entire term of his “tenure track” employment, Professor Stebbins

enjoyed an extremely successful teaching career, was productive

in terms of both research publication and community service,

was awarded merit salary increases, and was assigned expanded

duties.

In January of 1970, however, the executive committee of the

mathematics department met and voted to terminate Professor

Stebbins’ appointment. He was not notified of the meeting, was

not afforded any opportunity to be heard, and was not permitted

to consider and discuss whatever negative statements may have

been made about him. More than that, the executive committee

did not have before it any information respecting his record of

accomplishment during the term of his six-year “tenure-track”

uppointment.*

2 Section 36.06(1), (2), Wis. Stats. (1966), Regulations of the

University of Wisconsin System, Section 10A.05, R. App. Doc. No.

32 Ex. No. 49, Appendix F hereto, infra, pp. App. A-46-A-50; R.

App. Doc. No. 32, Ex. Nos. 50, 51, 53 at 7, and 21, Appendix B

hereto, infra, pp. App. A-2-A-13.

% The trial court did not note fully in its opinion the absence of

any information before the executive committee respecting Professor

Stebbins’ performance record. Moreover, the trial court drew cer-

tain inferences in its opinion respecting the probable flow of evalua-

tive information about Professor Stebbins amongst and between the

’ il

— oe

Between January, 1970 and July 6, 1970 the dean of the

college of letters and science disapproved the action of the ex-

ecutive committee of January 1970 and disapproved certain

other attempted actions of the executive committee which oc-

curred during that period.' On July 6, 1970 the executive com-

mittee met again and reaffirmed its January, 1970 decision.

This time it stated two reasons for that decision: (1) Professor

Stebbins’ research was not such as to warrant promotion; and

(2) his area of mathematical specialization, complex analysis,

was adequately covered by tenured faculty within the depart-

ment.” Once again Professor Stebbins was not afforded any

Opportunity to be heard and was not permitted to consider and

members of the executive committee, which inferences were not at

all supported by the complaint. R. App. Doc. No. 2, Complaint at

*€ 9(d) and 11. Professor Stebbins sought to correct the trial court’s

failure and impermissible inferences through the vehicle of his pro-

posed amended and supplemental complaint. R. App. Doc. No. 25,

wey a Complaint at €€ 10-21, 28, 31, 33, 34-39, 42, 44,

-4/. His motion to permit its filing was denied. i

hereto, infra, pp. App. A-42-A-45, ° aliments

The central thrust of Professor Stebbins’ appeal focused not on the

trial Court’s abstract lawmaking but rather on its erroneous findings

and inferences of fact, application of law to those facts, and failure

to permit their correction by denial of Professor Stebbins’ motion to

amend and supplement. See Brief of the Plaintiff-Appellant, Cross-

Appellee at pp. 20-42, 48-53. The Circuit Court compounded that

problem by simply affirming what the trial court did, without ex-

ploration of the pleadings or the record and without regard to de-

tailed bricfing and oral argument comparing and contrasting the trial

court’s “facts with the pleadings. 537 F. 2d 939 at 941-42, Ap-

pendix C hereto, infra, pp. App. A-14-A-19. Strenuous reiteration of

that com arison and contrast in the petition for rehearing and sug-

gestion of rehearing en banc, Appendix B hereto, infra, pp. App. AD.

A.-13, fell on deaf ears. Appendix A hereto, infra, p. App. A-1.

+ For a more detailed elaboration of the “oth tt i

rd + ———s es R. App. Doc. No. 32, Ee Now da

-, 3a.-3d.; Brief of the Plaintiff-Appellant, Cross-A ‘Brie

Jt. App. pp. 6-7 & n. 1. “in Nr

*” R. App. Doc. No. 32, Ex. No. 2e.

=

discuss whatever negative statements may have been made about

him.®

The committee’s statement that “Professor Stebbins’ research

was not such as to warrant promtion . . . ”, was publicly dis-

closed by it and was included by it in Professor Stebbins’ per-

sonnel file.‘

Four months after the July 6, 1970 meeting, the same com-

mittee voted to promote and to award tenure to another assistant

professor within the department who had been untenured and

whose area of mathematical specialization was complex analysis.

Also after the July 6, 1970 meeting the university committee

on the Milwaukee campus of the University of Wisconsin and

the office of legal counsel to the chancellor of the Milwaukee

campus of the University of Wisconsin prodded the executive

committee of the mathematics department to hold a hearing

respecting its denial of tenure to Professor Stebbins.~ However,

because the conduct and decisions of the executive committee

were repeatedly disapproved by the dean of the college of letters

and science and because the executive committee was resistant

to holding a hearing respecting its denial of tenure to Professor

Stebbins, it became hostile to him.

In that posture, in March of 1971, the executive committee

held hearings on the issue of reopening its earlier decision of

July 6, 1970 regarding Professor Stebbins’ tenure status. After

four days of hearings, during which Professor Stebbins was given

an opportunity to present information concerning his qualifica-

tions. the committee voted, by a seven-to-five margin," to allow

“ Supra, note 3.

7 R. App. Doc. No. 32, Ex. Nos. 2e., 3h., 3k., 30.

a

R. App. Doc. No. 32, Ex. Nos. 3}.-3s.

* R. App. Doc. N.o 2, Complaint at § 20(d) (i).

— won

its original decision to stand, thus denying him tenure status and

effectively terminating his employment at the University of Wis-

consin. Two of the committee members who participated in

the vote on whether Professor Stebbins’ case should be reopened

did not attend the informational portions of the hearings. The

committee refused Professor Stebbins’ request that its decision

be based solely on the evidence adduced at the hearing. The

committee refused to disqualify from participation in the hearing

or subsequent vote members who had participated in the earlier

decision then under review. Professor Stebbins was not allowed

to examine committee members as to the evidence upon which

they had made their earlier decisions to deny him promotion

and terminate his employment. The committee refused to state

in writing the evidence upon which it based its determinations.

No information whatsoever unfavorable to Professor Stebbins was

presented at the hearing; information overwhelmingly favorable

to him was presented at the hearing.

Professor Stebbins then appealed both alleged procedural

errors by and the substantive decisions of the executive committee

to the dean of the college of letters and science of the Milwaukee

campus, to the university committee of the Milwaukee campus,

then to the respondent Weaver, and finally to the respondent

Board of Regents. Each reviewing agency or person allowed

the decision of the executive committee to stand; each did so

on the basis of lack of intra-university system jurisdiction or out

of intra-university system comity-deference to other intra-uni-

versity system decision makers; none actually reviewed either

the alleged procedural errors by or the substantive decisions of

the executive committee.'®

During the pendency of the intra-university system appeals,

Professor Stebbins was employed for a temporary, one-year

1” Tbid. at ©€ 14-18.

—

period in the office of the dean of the college of letters and

science of the Milwaukee campus."'

B. Facts Respecting the History of the Trial Litigation.

This federal civil rights action was commenced on April 27,

1972 by Professor Stebbins.'* He alleged in his complaint that

he had been denied tenure, and that his employment had been

‘terminated by action of the respondent Board of Regents of the

University of Wisconsin System and President of the University

of Wisconsin System, and by their authorized delegees, all acting

under color of state law.'® He claimed property and liberty in-

terests in access to tenure and continued employment.'* He

predicated his complaint jurisdictionally upon 28 U.S.C.

$§ 1331 and 1343 and alleged an amount in controversy in

excess of $10,000.00, exclusive of interest and costs.'® He based

his causes of action upon 42 U.S.C. § 1983 and the due process

clause of the Fourteenth Amendment to the United States Con-

stitution.'" For relief, he sought declarations pursuant to 28

U.S.C. § 2201 respecting his right to procedural due process as

to both the determination of tenure and the continuation of his

employment; and his right to a non-arbitrary, non-capricious

decision as to both the determination of tenure and the continua-

tion of his employment.'’ He sought also mandatory injunctive

relief requiring reinstatement, a specific type of fair hearing, and

11 R. App. Doc. No. 32, Ex. Nos. 3rr.-3uu.

12 R. App. Doc. No. 1, Summons; App. Doc. No. 2, Complaint.

13 R. App. Doc. No. 2 Complaint at €€ 1, 3, 6, 19 & 20.

14 R. App. Doc. No. 2 Complaint at € 1, 7, & 8.

1 R. App. Doc. No. 2 Complaint at €€ 2 & 4.

16 R. App. Doc. No. 2 Complaint at €{ 2 & 3.

17 R. App. Doc. No. 2 Complaint Prayer at €¢ 1, 2, & 3.

== 10

a non-arbitrary, non-capricious decision as to both the deter-

mination of tenure and the continuation of his employment.'*

And, he sought a prohibitory injunction against the immediate

future filling of any tenured positions by any other persons in the

mathematics department until the latter declaratory and man-

datory injunctive measures were accomplished.'®

Professor Stebbins immediately moved for preliminary in-

junctive relief in the district court prohibiting the respondents

from “ . filling any tenured positions in the Mathematics

Department of the University of Wisconsin-Milwaukee until

after the final determination of this action . . .” and mandating

that respondents “. . . continue to employ him in his present

or equivalent position with the University of Wisconsin-Mil-

waukee until after the final determination of this action.”2°

On May 17, 1972 the respondents answered, denying his

allegations of due process violations and setting up by way of

affirmative defense allegations respecting their conclusion that

“[aJll due process and other rights of the petitioncr, a non-

tenured teacher whose contract was not renewed, were fully

accorded to him.”?!

Between April 27, 1972 and July 3, 1972 Professor Steb-

bins filed two affidavits respecting certain facts,?2 and the parties

filed an extensive stipulation of evidence which included a

transcript of the executive committee administrative “hearing”

of March, 1971 and sixty-nine (69) exhibits offered therein,

minutes of the executive committee and fifty-six documents

'* R. App. Doc. No. 2 Complaint Prayer at €€ 4 & 5.

19 Tbid. |

20 R. App. Doc. Nos. 3 & 7.

“1 R. App. Doc. No. 4 Answer, Aff. Def. at € 3.

22 R. App. Doc. Nos. 8 & 9.

tracing the formal facts and proceedings respecting Professor

Stebbins’ loss of employment and denial of tenure.-’ Extensive

briefs and replies were filed with the district court:** and, when

this Court ruled on June 29, 1972 in Board of Regents v. Roth,

408 U.S. 564 (1972), and Perry v. Sindermann, 408 U.S. 593

(1972), supplemental briefs were filed.-*

On October 4, 1972 Professor Stebbins’ motion for pre-

liminary injunction was denied in a brief opinion and order

in which the district court held, as to his due process claim

_ that there has been inadequate exploration of these pro-

cedural refinements to support interlocutory relief . . .,” and,

as to the requisites of “property” or “liberty” mandated by

Roth-Sindermann, that Professor Stebbins “. . . has not dem-

onstrated a sufficiently good chance that he would ultimately

prevail in this action in this respect.”*"

On June 12, 1974 the respondents filed in the district court

a notice of motion and motion to dismiss on the grounds that:

(1) the Eleventh Amendment to the United States Constitu-

tion deprived the court of subject matter jurisdiction, (2) be-

cause the respondents were not “persons” within the meaning

of 42 U.S.C. § 1983, the court lacked subject matter jurisdic-

tion: and (3) Professor Stebbins failed to state a claim upon

which relief could be granted, because he failed “. . . to al-

2% R. App. Doc. Nos. 31 & 32 and indexed, stipulated documents

and exhibits included herein.

i inti - llee

24 Jt. App. to the Brief of the Plaintiff-Appellant, Cross-Appellec,

Nos. 2-6. Bee letter of 9/26/75, Walter F. Kelly to Thomas 4

Strubbe; Affidavit of Walter F. Kelly at Jt. App., No. 1. After : ?

initial round of briefing, Jt. App. Nos. 2-4, the district court calle

for supplemental briefs in light of this Court's Roth-Sindermann

opinions. Jt. App. Nos. 5 & 6.

2° [bid.

-* R. App. Doc. No. 10.

tienes,

lege facts showing that . . . [he] . . . possessed a job interest

protected by the due process clause of the Fourteenth Amend-

ment to the United States Constitution and the only ‘right,

privilege or immunity’ allegedly denied to him by employes

and agents of the respondents is the here nonexistent right

to . . . due process.”** On the same day, the respondents

filed with the court an eighteen-page brief in support of said

motion.** The brief reviewed the facts, as perceived by the

respondents, and argued extensively the following questions:

Eleventh Amendment immunity; whether the respondents are

“persons” within the meaning of 42 U.S.C. § 1983; and

whether Professor Stebbins had a sufficient Roth-Sindermann

“job interest” to invoke the due process clause of the Four-

teenth Amendment.*"

On July 11, 1974 Professor Stebbins filed his brief respect-

ing the issues of law as to the Eleventh Amendment, the “per-

sons” defense, and the Roth-Sindermann “property,” “liberty”

issues. *”

Never did the respondents seek a ruling on their motion to

dismiss beyond the briefed issues of (1) Eleventh Amendment

immunity, (2) 42 U.S.C. § 1983 “persons”; and (3) Roth-

Sindermann “property”, “liberty” issues as to due process.*! Nor

did the trial court, although obviously preparing an extensive

opinion respecting the operation of the tenure system generally

and in this particular case,** ever call upon the parties to pre-

-* R. Ap. Doc. No. 27.

=“ R. Ap. Doc. No. 35, Item No. 1.

2" [bid.

*“” R. App. Doc. No. 35, Item No. 3.

*! R. App. Doc. No. 35, Items Nos. 1 & 4; App. Doc. No. 17.

*2 R. App. Doc. Nos. 21, 35, Items Nos. 14, 15, 16, 17, 18, 19,

20, 21 & 22.

—_— =

sent their views, either factually or legally, respecting the appli-

cation of the due process clause to the tenure system either gen-

erally or in this particular case.**

On June 3, 1975 the trial court ruled. Its opinion granted

a motion to dismiss—and not the respondents’ motion to dismiss.

Indeed, the trial court denied the respondents’ motion to dis-

miss as to the Eleventh Amendment immunity question, the 42

U.S.C. § 1983 “persons” defense, and most importantly, the

Roth-Sindermann “property”, “liberty” defense, as to which the

trial court held, 396 F. Supp. 104 at 111:

“In the present case the plaintiff has alleged an explicit,

though unwritten [sic], contractual agreement under which

he was entitled to tenure provided certain conditions on his

part were met, and he has alleged those conditions were

met. Dismissal for lack of such a protected interest would

be proper only after consideraiion of whatever evidence

the plaintiff may be able to submit.”

On June 12, 1975 Professor Stebbins moved to amend the

trial court’s June 3, 1975 judgment to permit the filing of a

motion to amend and supplement his complaint to“. . . con-

form to the decision. . .”**

On June 13, 1975 the trial court stayed its June 3, 1975 judg-

ment and permitted Professor Stebbins to file by June 25, 1975

a motion to amend and supplement with attached, proposed

amended and supplemental complaint, with accompanying

brief.*”

*: Compare and contrast the relative briefing and opinions on the

motions for preliminary injunction and to dismiss. R. App. Doc.

Nos. 10, 21, & 35, Items Nos. 1, 3, & 4; Jt. App. Nos. 2-6.

*4 R. App. Doc. Nos. 23, 35, Item 22.

“> R. App. Doc. No. 24.

—

On June 24, 1975 Professor Stebbins filed the preceding docu-

ments, together with an affidavit of his counsel respecting the

showing of “cause” as to amendment and supplementation.**®

On July 3, 1975 the trial court in an opinion and order denied

the motion and vacated the stay order of June 13, 1975.°7

Thereafter, Professor Stebbins filed Notice of Appeal and ap-

propriate costs bond, thereby appealing the opinion, order, and

judgment of June 3, 1975 and the opinion and order of July 3,

1975.3"

On August 6, 1975 respondents cross-appealed on the

Eleventh Amendment and 42 U.S.C. § 1983 “person” rulings

by the trial court; they expressly did not appeal the trial court’s

ruling denying their motion to dismiss as to the Roth-Sinder-

mann “property”, “liberty” defense.*®

C. Facts Respecting the History of the Appellate Litigation.

The parties to the appeal and cross-appeal presented five issues

to the Court of Appeals for decision. Professor Stebbins pre-

sented the questions of (1) whether the trial court properly

reached out to the merits of his due process claims; (2) whether

the trial court properly determined the facts of and decided the

merits of his tenure-denial due process claims; and (3) whether

che trial court properly denied his motion to amend and supple-

ment his complaint, which motion sought to meet the trial

court's dismissal opinion. John C. Weaver and the Board of

Regents of the University of Wisconsin System presented the

*6 R. Ap. Doc. Nos. 25, 35, Item No. 23.

* Appendix E hereto, infra, pp. App. A-42-A-45.

sf

R. App. Doc. Nos. 27, 28 & 29.

** R. App. Doc. No. 30.

_—

questions of (4) whether they were “persons” within the mean-

ing of 42 U.S.C. § 1983; and (5) whether as to each of them

the Eleventh Amendment to the Constitution of the United

States was a bar to the declaratory and injunctive relief sought

by Professor Stebbins. The parties did not brief and did not

argue the Roth-Sindermann “property”, “liberty” issues. Dur-

ing oral arguments in the Circuit Court the bench inquired of

both counsel respecting those issues and was informed by both

counsel that those issues were not before the Circuit Court.*°

In its opinion of July 7, 1976, the Circuit Court did not

decide issues (2), (4), and (5). The Court did decide issues

(1) and (3).*' It also expressly decided that Professor Stebbins

had neither a sufficient “property” interest nor sufficient “liberty”

to invoke the due process protections of the Fourteenth Amend-

ment. Respecting “property”, it held broadly that Professor

Stebbins’ employment status was identical to that of Professor

Roth, and it thereby established a per se rule denying due process

protections to every non-tenured public employee in the states

of Illinois, Indiana, and Wisconsin. The Circuit Court also mis-

takenly determined that there had been no public disclosure of

the reasons for Professor Stebbins’ tenure denial and therefore

held that he had not been deprived of “liberty”. And, it sug-

gested by way of dicta that, even if Professor Stebbins had

either a sufficient “property” interest or sufficient “liberty” to

invoke the protections of the Fourteenth Amendment, it would

not review his claim because federal courts should not review

claims of arbitrariness and caprice in tenure-denials based on

“subjective evaluation” of tenure candidates unless that degree

of substantive arbitrariness and caprice which it characterized

as “gross abuse” could be demonstrated by the tenure candidate.

4” The oral argument was tape recorded, but it has not been tran-

scribed.

41 Supra, note 3.

_

Professor Stebbins timely petitioned for rehearing en banc due

to the Circuit Court's excess of subject-matter jurisdiction by de-

ciding unpresented issues, improper exercise of subject-matter

jurisdiction, constitutional error in not deciding presented issues,

error of law, mistakes as to record facts, and most importantly,

overbreadth of rationale as to the “property” issue and over-

breadth of dicta as to the “arbitrariness and caprice” issue with

serious consequential harm to all nontenured public employees

in the states of Illinois, Indiana, and Wisconsin.*? The petition

was denied on August 3, 1976 summarily and without explana.

tion.**

*2 Appendix B hereto, infra, pp. App. A-2-A-13.

** Appendix A hereto, infra, p. App. A-1.

= aT et

08 el ak edt

—=

REASONS FOR GRANTING THE WRIT

I. With Respect to the Question of “Property”, the Writ of

Certiorari Should Be Granted Because the United States Court

of Appeals Exceeded Its Subject Matter Jurisdiction, Usurped

the Proper Role of the District Court Judge in Determining the

Relevant Local Law of the State of Wisconsin, Incorrectly De-

termined the Relevant Local Law of the State of Wisconsin,

and Established an Overly Broad Per Se Rule Inconsistent With

Prior Decisions of This Court and Destructive of the Due Process

Rights of Non-Tenured Public Employees in the States of Ilinois,

Indiana and Wisconsin.

A. This Court has been scrupulous in assuring that federal

trial and appellate courts do not exceed their subject-matter

jurisdiction. See, e.g., City of Kenosha v. Bruno, 412 U.S. 507

(1973); Liberty Mutual Insurance Co. v. Weizel, —U.S.—, 96

S. Ct. 1202, 45 L. Ed.— (March 23, 1976). Fed. R. App.

P. 3(c) compels the appealing party to designate the whole or

part of the judgment or order from which it appeals, and com-

pliance with Rule 3 is a precondition to appellate jurisdiction.

United States v. Robinson, 361 U.S. 200 at 224 (1960). While

this Court has been quite liberal in giving interpretation to the

intent of appealing party, see, e.g., Foman v. Davis, 371 U.S.

178 (1962), see generally, 9 Moore's Fed. Prac. € 203.18 at

pp. 752-57 (Matthew Bender Co. 1975), with respect to the

issues sought to be appealed, it has never read Rule 3(c) to

permit an expressly unappealed issue to be decided. And the

entire weight of the case law in the courts of appeals, including

this circuit, is against such an excess of appellate jurisdiction,

see, e.g., Bach v. Coughlin, 508 F. 2d 303 (7th Cir. 1974),

Ruchman & Hansen, Inc. v. Contracting & Material Co., 328

F. 2d 744 (7th Cir. 1964), Moore v. Fowinkle, 512 F. 2d 629

(6th Cir. 1975), Terkildsen v. Waters, 481 F. 2d 201 (2nd Cir.

—

1973), United States v. Ramos, 413 F. 2d 743 (list Cir. 1969),

where, as here, the intent of the appealing party is clearly not

to present the issue.

B. Bishop v. Wood, —U.S.—, 96 S. Ct. 2074, 48 L. Ed. 2d

684 (June 10, 1976), expressly directs that federal judicial deci-

sions determining whether a particular employment interest con-

stitutes “property”, depending as they do upon assessments of

local law, should be decided in the first instance by federal trial

judges, who are best situated to determine the law of the locality

in which they sit. In the instant case“. . . the opinion of the

United States District Judge who sits in [Wisconsin] and prac-

ticed law there for many years”, and who, we add, is thoroughly

familiar with the law of this locality respecting the University

of Wisconsin higher educational employment system, e.g., John-

son v. Board of Regents of the University of Wisconsin System,

377 F. Supp. 227 (W.D. Wis. 1974), aff'd summ., 510 F. 2d

975 (7th Cir. 1975), held that the “property” interest asserted

by Professor Stebbins should be tried. The appellate court

usurped the trial court's role in deciding that issue over against

the trial court’s contrary assessment, and, as we shall see, did

so erroneously.

C. All the imaginable dangers of deciding an unpresented

issue, without the benefit of briefs and arguments, and over

against the decision of the trial judge to the contrary, were

realized in the Court of Appeals’ opinion of July 7, 1976, for

the Court incorrectly equated Professor Roth’s employment

status, Board of Regents v. Roth, 408 U.S. 564 (1972), at the

Oshkosh campus of the state college system with Professor Steb-

bins’ employment status at the Milwaukee campus of the Uni-

versity of Wisconsin system; failed to realize that Professor

Stebbins did indeed allege a de facto tenure similar to that

considered in Perry v. Sindermann, 408 U.S. 593 at 601

(1972) and recently reiterated in Bishop v. Wood — U.S. —,

96 S. Ct. 2074, 48 L. Ed. 2d 684 and nn. 6 and 7 (June 10,

= =

1976), and failed to examine either the applicable tenure

statutes and regulations or the common-law of contracts of the

State of Wisconsin, all of which utterly contradict the Circuit

Court's conclusion that “{a]s with Roth, it is settled that plain-

tiff ‘did not have a property interest sufficient to require’ the

Fourteenth Amendment's procedural protections.”

Professor Roth was a member of the political science depart-

ment of the Oshkosh faculty of the “old”*' state college system.

His appointment was governed by the statutes and regulations

applicable to that system. They are set forth in Board of

Regents v. Roth, 408 U.S. 564 at 566-68 and nn. 1-4, 578-79

and n. 16 (1972). Roth had essentially a one-year temporary

appointment ‘which this Court characterized as providing

‘.. no real protection for a nontenured teacher who simply is

not reemployed for the next year,” . . . “thus clearly leav[ing]

the decision to rehire a nontenured teacher for another year to

the unfettered discretion of university officials.” 408 U.S. 564

at 567 (1972).

Professor Stebbins, on the other hand, was a member of the

mathematics department of the Milwaukee campus faculty of

the “old”** University of Wisconsin system. His appointment,

two successive, three-year contracts, and employment status

were governed by the statutes and regulations applicable to

that system. The statute was § 36.06(1), (2), Wis. Stats. Ann.

44 The term “old” is used, because the two systems—state college

and University of Wisconsin—were merged at times subsequent to

the happening of the primary facts in this action. See Title VI, Ch.

36, Wis. Stats. Ann. (1973), respecting L. 1971, c. 100, initially

consolidated the two “old” systems, and respecting L. 1973, c. 335,

$§ 5 and 6, repealing “old” chapters 36 and 37 and creating “new

chapter 36, thereby legislatively effectuating the merger. The rele-

vant legislation and history is located in the pocket part of Vol. No.

5, Wis. Stats. Ann., and is reprinted in pertinent part in Appendix

F hereto, infra, pp. App. A-46-A-5S0.

4% Ibid.

== 20) <u

(1966). It is a broad authorizing statute, pursuant to which

regulations and letters and terms of appointment were issued,

all of which are in this record. See R. App. Doc. No. 32, Ex.

Nos. 49 § 10A.05, Appendix F, infra, pp. App. A-46-A-50, de-

fining a “tenure track” probationary appointment; 50, the initial,

unconditional appointment of Professor Stebbins; 51, the second,

unconditional reappointment of Professor Stebbins; 53, € 7, de-

scribing the “tenure track” commitments made to Professor

Stebbins; and 21, the “tenure track” guideline criteria of the

Milwaukee campus division of natural science of which the

mathematics department was a part. These statutes, regula-

tions, guidelines, and other documents show unequivocally, as

briefed to the trial court judge on the preliminary injunction,

see Jt. App. No. 6 at pp. 1-5, and on the subsequent motion io

dismiss, R. App. Doc. No. 35, Item No. 3 at pp. 6-7, that,

unlike Professor Roth, Professor Stebbins, a “tenure track” pro-

fessor, had a clear objective expectation of continued employ-

ment; and it was these materials and these briefs, which were

before him at the time, that led the trial court judge, in light

of his knowledge of the system, to conclude correctly that the

respondents’ motion to dismiss had to be denied as to the

“property” issue Moreover, Professor Stebbins did allege a de

facto tenure similar to that considered in Perry v. Sindermann,

408 U.S. 593 at 601 (1972). R. App. Doc. No. 2, Complaint

at ©€ 7 and 8; Jt. App. No. 6 at pp. 1-5; R. App. Doc. No. 35,

Item 3 at pp. 6-7; and R. App. Doc No. 24, Am & Supp. Comp.

at €€ 3, 22-28.

The common law of contracts of the State of Wisconsin,

taken together with the statutes, regulations, guidelines, and

other documents set forth supra, create a “property” right in

Professor Stebbins’ objective expectation of continued employ-

ment. See, e.g., Hortonville Joint School District No. 1 vy.

Hortonville Education Association, 66 Wis. 2d 469 at 487-89

(1975), aff'd. on this issue, — U.S. —, 96 S. Ct. 2308, 49

L. Ed. 2d 1 n. 2 (June 17, 1976) by this Court, citing Roth

=

and Sindermann; Johnson v. Board of Regents of the Unive--

sity of Wisconsin System, 377 F. Supp. 227 at 234-35 (W.D.

Wis. 1974), aff'd. summ., 510 F. 2d 975 (7th Cir. 1975).

Compare Goss v. Lopez, 419 U.S. 565 at 573-74, 576-77

(1975).

D. The Circuit Court's decision respecting “property”, writ-

ten as broadly as it is, and giving the reading that it does to

this Court's opinions in Roth, Sindermann, and Bishop, has

the effect of denying the protection of the due process clause

of the Fourteenth Amendment to the United States Constitu-

tion to every non-tenured professor in the University of Wiscon-

sin system and very likely to every non-tenured public employee

in the states of Illinois, Indiana, and Wisconsin.

Il. With Respect to the Question of “Liberty”, the Writ of

Certiorari Should Be Granted Because the United States Court

of Appeals Exceeded Its Subject Matter Jurisdiction and Ruled

Inconsistently With Prior Decisions of This Court and Because

This Court Has Granted Certiorari in Similar Cases Presently

Pending Before This Court as to Which the Courts of Appeals

Are Divided.

A. As to this ground, see Point I A, swpra, p. A-1.

B. The Circuit Court erroneously determined that Professor

Stebbins is“. . . free to seek another job . . .,” and that there

was “. . . no public disclosure of the reasons for the denia! of

tenure. However, as set forth in the statement of facts, supra,

there was, indeed, public disclosure, and the reasons were

placed in Professor Stebbins’ personnel record, and Professor

Stebbins did allege actual foreclosure from subsequent employ-

ment by virtue of the disclosure and personnel record inclusion.

Hence, the Circuit Court's opinion as to Professor Stebbins’

“liberty” is inconsistent with this Court's recent decisions in

Board of Regents v. Roth, 408 U.S. 564 at 575 (1972); Paul

=

v. Davis, —U.S. —, 96 S. Ct. 1155 at 1161-66, 47 L. Ed. 2d

405 at 414-20 (March 23, 1975), and Bishop v. Wood, —

U.S. —, 96 S. Ct. 2074 at 2077, 48 L. Ed. 2d 684 at 691-92

and n. 12 (June 10, 1976). Compare Goss v. Lopez, 419 U.S.

565 at 574-75 (1975), and Hampton v. Mow Sun Wong, —

U.S. —, 96 S. Ct. — at — and n. 23, 48 L. Ed. 2d 495 at

508 and n. 23 (June 1, 1976).

C. In Cowley v. Velger, — F. 2d — (2nd Cir. 1975), this

Court has granted the writ of certiorari to review a similar ques-

tion, 44 Law Week 3748, 45 Law Week 3023 (1976), as to

which the courts of appeals are in conflict. Compare, e.g., Rus-

sell v. Hodges, 470 F. 2d 212 (2nd Cir. 1972); Buhr v. Buf-

falo Pub. School Dist. No. 38, 509 F. 2d 1196 (8th Cir. 1974):

Huntley v. Comm. School Board of Brooklyn, — F. 2d —, 44

LW 2574 (2nd Cir. May 12, 1976); Weathers v. West Yuma

County School District R-J-1, 530 F. 2d 1335 at 1338-39 (10th

Cir. 1976). See generally Comment: The Due Process Rights

of Public Employees, 50 N.Y.U. L. Rev. 310 at 329-35 (1975);

Johnson, Probationary Government Employees and The Di-

lemma of Arbitrary Dismissals, 44 Cincinnati L. Rev. 698 at

711-13 (1975).

III. With Respect to the Question of Administrative “Arbi-

trariness and Caprice”, the Writ of Certiorari Should Be Granted

Because the United States Court of Appeals Unduly Narrowed

the Scope of Federal Judicial Review Inconsistently With Prior

Decisions of This Court and Destructively to the Due Process

Rights of Non-Tenured Public Employees in the States of Mli-

nois, Indiana, and Wisconsin, and Because This Case Presents

a Vehicle for Clarifying a Question of Public Importance as to

Which the Law Is Unsettled.

A. As to the Circuit Court's footnote alternative holding re-

specting the scope of judicial review of allegedly arbitrary and

capricious tenure denials, the Court is wrong as a matter of

= =

law in abstracting into creation a new and more rigorous stand-

ard of “gross abuse”, and wrong as a matter of application of

law to fact in implying that, because the denial of tenure to

Professor Stebbins involved “subjective” evaluation, there was no

“gross abuse” in this case.

A long line of this Court's decisions has established that the

state administrative action which deprives a citizen of “prop-

erty” or “liberty” irrationally constitutes a deprivation of due

process of law. See, e.g., Cramp v. Board of Public Instruction,

368 U.S. 278 (1961); Cafeteria Workers Union v. McElroy,

367 U.S. 886 (1961); Konigsberg v. State Bar of California,

353 US. 252 (i957); Schware v. Board of Bar Examiners,

353 US. 232 (1957): Slochower v. Board of Education, 350

U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952).

The Circuit Court in this case, citing Chung v. Park, 514 F.2d

382 at 387 (3rd Cir. 1975), suggested an incursion upon this

elemental principle of fairness by stating “. . . im cases such

as this one, where the decision is based on a subjective evalua-

tion, we would decline to review the merits absent some show-

ing of gross abuse.” In addition to its suggestive limitation of

“administrative arbitrariness” review, that holding conflicts with

the more recently articulated view of at least one member of

this Court, see Arnett v. Kennedy, 416 U.S. 134 at 180, 183-

85 (1974). Moreover, Chung v. Park, supra, is to the con-

trary for there the court did review the decision to terminate

Dr. Chung’s employment and found it to be supported by the

evidence. In the instant case, Professor Stebbins alleges, and

the trial and appellate courts assumed as fact, that all evidence

was favorable to him and that there was no evidence unfavor-

able to him.

B. The direction set by the Circuit Court's opinion will be

clear to all state employers: simply articulate a “subjective

evaluative” basis for termination and federal judicial scrutiny

is eliminated, absent “gross abuse.” Indeed, this Court's dicta

— *s

in Bishop v. Wood, — U.S. —, 96 S. Ct. 2074, 48 L. Ed. 2d

684 at 692-93 and n. 14 (June 10, 1976), when lifted out

of its explanatory context, is susceptible of the same interpre-

tation. Hence, the instant case, coupled with Bishop's dicta

seriously endangers the right to be treated fairly of public

employees in the states of Illinois, Indiana, and Wisconsin.

C. The question of the application of the due process clause

to administratively arbitrary public employment terminations

is one to which this Court has not turned, although this Court

has considered and resolved the same question in the area of

private employment governed by federal labor law. See, e.g.,

Vaca v. Sipes, 386 U.S. 771 (1967); Hines v. Anchor Motor

Freight, Inc., — U.S. —, 96 S. Ct. 1048, 47 L. Ed. 2d 231

(March 3, 1976). The question has festered at trial and ap-

pellate levels in the federal judicial system, e.g., Buhr, supra,

Weathers, supra, Jeffries v. Turkey Run Consolidated School

District, 492 F. 2d 1 at 4 (7th Cir. 1974), Scheelhaase v.

Woodbury Cent. Community School District, 488 F. 2d 237

(8th Cir. 1973), Anonymous v. Kissinger, 499 F. 2d 1097 at

1102 (D.C. Cir. 1974), and is troubling the commentators

as well. E.g., Johnson, Probationary Government Employees

and The Dilemma of Arbitrary Dismissals, supra, at pp. 714-24

(1975), Comment: The Due Process Rights of Public Em-

ployees, 50 N.Y.U. L. Rev. 310 (1975), Comment: Substan-

tive Due Process: The Extent of Public Employees’ Protection

from Arbitrary Dismissal, 122 U. Pa. L. Rev. 1647 (1974).

Compare Frug, Does the Constitution Prevent the Discharge of

Civil Service Employees?, 124 U. Pa. L. Rev. 942 (1976)

with Tribe, Structural Due Process, 10 Harv. C. R. & C.L. L.

Rev. 269 at 275-89, 302, 308-10, 312 n. 128, 319 (1975).

=

CONCLUSION

With Respect to All Questions Presented, the Writ of Cer-

tiorari Should Be Granted to Resolve the Unsettled Questions

of the Proper Role of the Trial and Appellate Courts of the

Federal Judiciary in Scrutinizing Pursuant to the Due Process

Clause of the Fourteenth Amendment the Minimum Rationality

and Procedural Fairness of State Higher Educational Decision-

making at the Critical “Breaking-Point” of Tenure Vel Non,

Which Decisionmaking Impacts Upon a Special Class of Public

Employees Peculiarly Susceptible to Caprice and Procedural

Irregularity and Relates Directly and Substantially to the Ro-

bustness of That Class’ Exercise of Academic Freedom.

Tenure is the key to job security within the higher educational

system of this Nation. Generally speaking, neither collective

bargaining agreements, to the extent they exist within higher

educational employment systems, nor civil service statutes and

regulations, to the extent that they govern, nor “campus common

law”, to the extent it either occupies the field or fills gaps in

contract, statutory, or regulatory law, afford substantial quali-

tative protection to those professors who are not yet tenured

yet who have made substantial commitments of their lives, in

time and energy, to higher educational employment. Because

most public university systems, and especially the larger, state-

financed, integrated systems, such as the University of Wiscon-

sin system, place the responsibility and the power respecting

tenure decisions in the majoritarian institution of departmental

committees, nontenured professors are peculiarly subject to

majority authority. Structurally the danger is great that they

will do “what they have to do”, with particular respect to their

secure seniors and university administrators, to “get tenure”.

Such a structure inherently contains serious obstacles to the

full freedom of thought, inquiry, exploration, and expression

embodied in the concept of academic freedom. In this re-

== 26 au

spect, not yet tenured professors are not unlike collective bar-

gaining unit minorities who must cope with employer-bargain-

ing representative controlled grievance mechanisms to decide

their grievances. Compare Vaca v. Sipes, supra, Hines v.

Anchor Motor Freight, supra. Yet, the public law is in disarray

as to whether such professors may claim the protection of the

due process clause of the Fourteenth Amendment, and if so,

as to whether they may claim such protections to the extent of

assuring the minimum rationality of tenure vel non decision-

making, and the minimum requisites of a procedurally fair per-

sonnel system. The petitioner requests this Court to grant the

writ of certiorari in this case in order to resolve that disarray

on this full and complete record.

Respectfully submitted,

GERRY M. MILLER

Attorney for Petitioner

Of Counsel

WALTER F. KELLY

GOLDBERG, PREVIANT & UELMEN s.c.

October, 1976

APPENDIX

—

APPENDIX A

United States Court of Appeals

For the Seventh Circuit

August 3, 1976

John L. — om . } Appeal and Cross-Appeal

aintifl-Appellant, | trom the United States

i —— District Court, Western

Nos. 75- , = ’ District of Wisconsin.

John C. Weaver, et al., Civ No. 72-C-111

Defendants-Appellees, James E. Doyle, Judge.

Cross-Appellants. —

Order

On consideration of the petition of the appellant, John L.

Stebbins, Jr., for a rehearing by the Court in the above-entitled

appeal, and no member of the panel and no judge in regular

active service having requested that a vote be taken on the sug-

gestion for an en banc rehearing, and the panel having voted

to deny a rehearing,

It Is Ordered that the petition of |»= appellant for a rehearing

in the above-entitled appeal be, and the same is hereby denied.

—

APPENDIX B

In the United States Court of Appeals

For the Seventh Circuit

John L. Stebbins, Jr.,

Plaintiff-Appellant, | Appeal and Cross-Appeal

Cross-Appellee, from the United States

VS. District Court, Western

_ District of Wisconsin.

John C. Weaver and Board of { Civil Action No. 72-C-111.

Regents of the University of | (Honorable James E. Doyle)

Wisconsin System, App. Nos. 75-1845,

Defendants-Appellees, 75-1846.

Cross-Appellants. |

Petition of the Plaintiff-Appellant, Cross-Appellee for Rehearing

of This Court’s Opinion and Judgment of July 7, 1976

and Suggestion of Rehearing En Banc

To: Honorable Walter J. Cummings, Circuit Court Judge,

United States Court of Appeals for the Seventh Circuit

Honorable Robert A. Sprecher, Circuit Court Judge,

United States Court of Appeals for the Seventh Circuit

Honorable William E. Steckler, Chief Judge, United States

District Court, Southern District of Indiana, Sitting

by Designation United States Court of Appeals for

the Seventh Circuit

As the Panel that Decided this Case

And to Ail the Judges of the United States Court of Appeals

for the Seventh Circuit

—_-

Now Comes the Petitioner, John L. Stebbins, Jr., the Plaintiff-

Appellant, Cross-Appellee in this action, by his attorneys, Walter

F. Kelly and Goldberg, Previant & Uelmen s.c., 6th Floor Mid-

land Bank Bidg., 211 West Wisconsin Avenue, Milwaukee, Wis-

consin 53203, and hereby petitions the panel that decided this

case on July 7, 1976 to rehear the case, and hereby further

suggests to all the judges of the United States Court of Appeals

for the Seventh Circuit that this case be reheard en banc. The

basis for this Petition and Suggestion is set forth in full in this

Petition and Suggestion.

Dated at Milwaukee, Wisconsin, this 19th day of July, 1976.

Introduction

The parties to the appeal and cross-appeal in this action,

John L. Stebbins, Jr., the plaintiff-appellant, cross-appellee, and

John C. Weaver and the Board of Regents of the University of

Wisconsin System, the defendants-appellees, cross-appellants,

presented five issues to this Court for decision.

John L. Stebbins, Jr. presented to the Court the questions

of (1) whether the trial court properly reached out to the merits

of his procedural and substantive due process claims; (2)

whether the trial court properly decided the merits of his tenure-

denial procedural and substantive due process claims; and (3)

whether the trial court properly denied his motion to amend

and supplement his complaint, which motion sought to meet

the trial court's dismissal opinion. John C. Weaver and the

Board of Regents of the University of Wisconsin System pre-

sented to the Court the questions of (4) whether they were

“persons” within the meaning of 42 U.S.C. § 1983; and (5)

whether as to each of them the Eleventh Amendment to the

Constitution of the United States was a bar to the declaratory

and injunctive relief sought by John L. Stebbins, Jr.

—_—

In its opinion of July 7, 1976, this Court did not decide

issues (2), (4), and (5S). This Court did decide issues (1)

and (3). It also expressly decided that John L. Stebbins, Jr.

had neither a sufficient “property” interest nor a sufficient

“liberty” interest to invoke the procedural and substantive due

process protections of the Fourteenth Amendment. And, it

suggested by way of dicta that, even if John L. Stebbins, Jr.

had a sufficient “property” interest or a sufficient “liberty” in-

terest to invoke the substantive protections of the Fourteenth

Amendment, federal courts should not review claims of sub-

Stantive arbitrariness and caprice, in tenure denial based on

“subjective evaluation” of the tenure candidate unless that de-

gree of substantive arbitrariness and caprice which it char-

acterized as “gross abuse” could be demonstrated by the candi-

date-plaintiff.

Reasons for Petitioning for Rehearing and Suggesting Re-

hearing En Banc

(A) As to the “property” and “liberty” decisions of this

Court, the issues were expressly not presented by John C.

Weaver and the Board of Regents of the University of Wiscon-

sin System on their cross-appeal, App. Doc. No. 30, Original

Brief of the Plaintiff-Appellant, Cross-Appellee at pp. 15-16

and n. 49, Original Brief for Defendants-Appellees, Cross-Ap-

pellants at pp. 3, 8, 45, Reply-Response Brief of the Plaintiff-

Appellant, Cross-Appellee at p. 9, Reply Brief of Defendants-

Appellees, Cross-Appellants on Cross-Appeal at pp. 1, 4,! and

the trial court had ruled favorably to John L. Stebbins, Jr.

on those issues, 396 F. Supp. 104 at 111 (W.D. Wis. 1975);

and, so, this Court lacked subject-matter appellate jurisdictional

power to decide them. Fed. R. App. P. 3(c). See Bach v.

' It is counsel's recollection that the Court was also expressly in-

formed on oral argument that the “property”, “liberty” issues were

not before it.

—_* =

Coughlin, 508 F. 2d 303 (7th Cir. 1974); Ruckman & Hansen,

Inc. v. Contracting & Material Co., 329 F. 2d 744 (7th Cir.

1964). See also Moore v. Fowinkle, 512 F. 2d 629 (6th Cir.

1975): Terkildsen v. Waters, 481 F. 2d 201 (2nd Cir. 1973);

United States v. Ramos, 413 F. 2d 743 (lst Cir. 1969).?

(B) As to the “property” and “liberty” decisions of this

Court, the issues, while briefed and argued below by the par-

ties, see Joint Appendix, Nos. 2-6, App. Doc. No. 35, Item 1,

App. Doc. No. 35, Item 3 at pp. 5-10, App. Doc. No. 35, Items

10, 15-22, were neither briefed nor argued in this Court, ob-

viously because those issues were not presented to this Court.

The patent irony, in this respect, for John L. Stebbins, Jr. is

that an identical practice was visited upon him by the trial

judge as to the merits of his procedural and substantive due

process claim, which practice he asked this Court to condemn,

and now this very Court turns around and engages in the very

same practice with respect to the “property” and “liberty” issues.

Just as we argued in our Original Brief that this practice, with-

out more, by the trial court was a basis for reversal, see Original

Brief at pp. 16-20, so now we argue that this practice by this

Court, without more, is a basis for rehearing.

(C) As to the “property” and “liberty” decisions of this

Court, the very case cited by this Court in support of its hold-

ings on “property” and “liberty”, Bishop v. Wood, — US. —,

44 L.W. 4820 (June 10, 1976), expressly directs that such

* Nor are the “property”, “liberty” issues subject-matter jurisdic-

tional in the trial court and therefore raisable at any time by the -

ties or sua sponte by the Court. See generally Bator, Mishkin, Sha-

piro & Wechsler, Hart & Wechsler's THE FEDERAL COURTS

AND THE FEDERAL SYSTEM at pp. 835-840 (Foundation Press

1973). Those issues go to cause of action under the Fourteenth

Amendment and 42 U.S.C. § 1983. E.g., Board of Regents v. Roth,

408 U.S. 564 (1972); Perry v. Sindermann, 408 U.S.593 (1972);

Arnett v. Kennedy, 416 U.S. 134 (1974); Goss v. Lopez, 419 U.S.

565 (1975); Paul v. Davis, — U.S. —, 44 L.W. 4337 (March 23,

1976); Bishop v. Wood, — U.S. —, 44 L.W. 4820 (June 10, 1976).

So

decisions, depending as they do upon assessments of local law,

should be decided by the federal trial judge, who is best situ-

ated to determine the law of the locality in which he sits. See

Bishop v. Wood, — U.S. —, 44 L.W. 4820 at 4821-22 and

nn. 9 and 10 (June 10, 1976).

“We do, however, have the opinion of the United States

District Judge who, of course, sits in North Carolina and

practiced law there for many years.”

In our case “the opinion of the United States District Judge

who sits in [Wisconsin] and practiced law there for many years”,

and who, we add, is familiar with the law of the locality re-

specting the University of Wisconsin System, because so many

of the cases on his docket, e.g., Johnson v. Board of Regents

of the University of Wisconsin System, 377 F. Supp. 227 (W.D.

Wis. 1974) arise out of that System, held that the “property”

interest asserted by John L. Stebbins, Jr. should be tried. 396

F. Supp. 104 at 111.

(D) All the imaginable dangers of deciding an unpresented

issue, without the benefit of briefs and arguments, and over

against the decision of the trial judge to the contrary, were

realized in this Court's opinion of July 7, 1976, for, the Court

incorrectly equated David Roth’s legal status, see Board of

Regents v. Roth, 408 U.S. 564 (1972), at the Oshkosh cam-

pus of “old” state college system with John L. Stebbins, Jr.'s

legal status at the UW-M campus of the “old” University of

Wisconsin system; failed to realize that John L. Stebbins, Jr.

did indeed allege a de facto tenure identical to that permitted

in Perry v. Sindermann, 408 U.S. 593 at 601 (1972), and re-

cently reaffirmed in Bishop v. Wood, — U.S. —, 44 L.W. 4820

at 4821-22 and nn. 6 and 7 (June 10, 1976), and failed to

examine either the applicable tenure statutes and regulations

or the common-law of contracts of the State of Wisconsin, all

of which utterly contradict this Court’s conclusion that “{a]s

with Roth, it is settled that plaintiff ‘did not have a property

—

interest sufficient to require’ tthe Fourteenth Amendment's pro-

cedural protections.” (Slip Opinion at p. 4.) And, on the “lib-

erty” issue, this Court failed to consider that there was, indeed,

disclosure of the reasons for plaintiff's denial of tenure, and

that plaintiff did indeed allege actual foreclosure from subse-

quent employment, both of which facts give him a protected

“liberty” interest under Roth, 408 U.S. 564 at 575 (1972);

Paul v. Davis, — U.S. —, 44 L.W. 4337 at 4342, 4343 (March

23, 1976), and Bishop v. Wood, — U.S. —, 44 L.W. 4820

at 4822 and n. 12 (June 10, 1976).

(i) David Roth was a member of the political science de-

partinent of the Oshkosh faculty of the “old”® state

college system. His appointment was governed by

the statutes and regulations applicable to that system.

They are set forth in Board of Regents v. Roth, 408

U.S.564 at 566-68 and nn. 1-4, 578-79 and n. 16

(1972). Roth had essentially a one-year probation-

ary appointment which the Supreme Court charac-

terized as providing “. . . no real protection for a

non-tenured teacher who simply is not re-employed

for the next year,” .. . “thus clearly leaving) the

decision to rehire a nontenured teacher for another

year to the unfettered discretion of university officials.”

408 U.S. 564 at 567 (1972).

John L. Stebbins, Jr., on the other hand, was a mem-

ber of the Mathematics department of the UW-M

* The term “old” is used, because the two systems—state college

and University of Wisconsin—were merged at times subsequent to

the happening of the primary facts in this action. See Title VI, Ch

36, Wis. Stats. Ann. (1973), respecting L. 1971, c. 100, initially con-

solidating the two “old” systems, and rR L. 1973, c. 335, §§

5 and 6, repealing “old” chapters 36 and 37 and creating “new”

chapter 36, thereby legislatively effectuating the merger. rele-

vant legislation is located in the pocket part of Vol. No. 5, Wis.

Stats. Ann., as was cited to this Court by John L. Stebbins, Jr. at p. 7

o. his Reply-Response Brief.

—~ on

faculty of the “old”* University of Wisconsin system.

His appointment, two successive, three-year contracts,

and employment status were governed by the statutes

and regulations applicable to that system. The stat-

ute was § 36.06(1), (2), Wis. Stats. Ann. (1966).

It is a broad authorizing statute, pursuant to which

regulations and letters and terms of appointment were

issued, all of which are in this record. See App. Doc.

No. 32, Ex. Nos. 49 § 10A.05, defining a “tenure

track” probationary appointment; 50, the initial, un-

conditional appointment of John L. Stebbins, Jr.; 51,

the second, unconditional reappointment of John L.

Stebbins, Jr.; 53, © 7, describing the tenure track

commitments made to John L. Stebbins, Jr.; and

21, the tenure track guideline criteria of the UW-M

Division of Natural Science of which the Mathemat-

ics Department was a part. These statutes, regulations,

guidelines, and other documents show unequivocally,

as briefed to the trial court judge on the preliminary

injunction, see Joint Appendix No. 6 at pp. 1-5, and

on the subsequent motion to dismiss, App. Doc. No.

35, Item No. 3 at pp. 6-7, that, unlike David Roth,

John L. Stebbins, Jr., a tenure track professor, had

a clear objective expectation of continued employ-

ment; and it was these materials and these briefs,

which were before him at the time, that led Judge

Doyle to conclude correctly that the motion to dis-

miss of John C. Weaver and the Board of Regents

of the University of Wisconsin System had to be de-

nied as to the “property” issue.

(ii) John L. Stebbins, Jr. did, indeed, allege a de facto

tenure identical to that permitted in Perry v. Sinder-

mann, 408 U.S. 593 at 601 (1972). App. Doc. No.

2, €€ 7 and 8; Joint Appdx. No. 6 at pp. 1-5; App.

+ Ibid.

aS vn

Doc. No. 35, Item 3 at pp. 6-7; and App. Doc. No.

24, €€ 3, 22-28

(iii) The common law of contracts of the State of Wis-

consin, taken together with the statutes, regulations,

guidelines, and other documents set forth in D(i),

supra, create a “property” right in John L. Stebbins,

Jr.'s objective expectation of continued employment.

See Hortonville Joint School District No. 1 v. Hor-

tonville Education Association, 66 Wis. 2d 469 at

487-89 (1975), aff'd. on this issue, — U.S. —, 44

L.W. 4864 at 4866 n. 2 (June 17, 1976), by the

U.S. Supreme Court, citing Roth and Sindermann;

Johnson v. Board of Regents of the University of Wis-

consin System, 377 F. Supp. 227 at 234-35 (W.D.

Wis.1974).

(iv) In July, 1970 the reasons for John L. Stebbins, Jr.’s

denial of tenure were publicly disclosed. App. Doc.

No. 32, Stipulation 2. e., Minutes, Exec. Comm.,

7/6/70; and John L. Stebbins, Jr. did allege actual

foreclosure from subsequent employment. Joint Ap-

pendix No. 6 at pp. 6-8; App. Doc. No. 35, Item

No. 3 at pp. 7-10. See, e.g., Huntley v. Comm. School

Board of Brooklyn, — F. 2d —, 44 L.W. 2574 (2nd

Cir. May 12, 1976).

(E) As to this Court's dicta respecting the scope of ju-

dicial review of allegedly arbitrary and capricious tenure de-

nials, the Court is mistaken as to certain facts in this case,

wrong as a matter of law in abstracting into creation a new and

more rigorous standard of “gross abuse”, and wrong as a

matter of application of law to fact in implying that there was

no “gross abuse” in this case.

(i) We set forth the facts respecting the arbitrary and

capricious action in our Original Brief in complete

(ii)

(ili)

— A-10 —

detail at pp. 22-30 and nn. 56-76, pp. 39-40 and

nn. 108-116. The court completely ignored those

facts, repeated the factual errors of the trial court,

and thereby patently abused the rule of liberal con-

struction and fair inferences required by Fed. R.

Civ. P. 12.

All arbitrary and capricious administrative action

which deprives a citizen of “liberty” or “property”

constitutes a Fourteenth Amendment substantive vio-

lation, regardless of whether it meets some judge’s

idea of “gross abuse”. Arnett v. Kennedy, 416 U.S.

134 at 180, 183-85 (1974) (Opinion, White J.).

See Original Brief at p. 47. Chung v. Park, 514

F. 2d 382 at 387 (3rd Cir. 1975), cited by the

Court in justification of its “gross abuse” standard;

is not to the contrary, but rather absolutely sustains

John L. Stebbins, Jr.’s position, because it holds for

the same standard we assert. 514 F. 2d 382 at

385, 387 and nn. 8-10 (3rd Cir. 1975).

In applying the general standard of Chung v. Park,

supra to this case, the Court fails to recognize that

in Dr. Chung’s case substantial evidence sustained

the accusation of incompetence, 514 F. 2d 382 at

385, 387 (3rd Cir. 1975), whereas in this case, it is

undisputed that all the evidence sustained, and not

one shred of evidence countervailed, John L. Steb-

bins, Jr.'s case. This case takes as true that the

two “reasons” of the Executive Committee of July

6, 1970 were in fact incorrect. Hence, this is a

case of complete irrationality. Cf., Kelley v. Johnson,

— US. —, 44 L.W. 4469 at 4472 (April 5, 1976).

See generally Brest, “Constitutional Rights to Fair

and Rational Treatment”, PROCESSES OF CON-

STITUTIONAL DECISIONMAKING at p. 806

(Little, Brown & Co. 1975). A refusal to review

i

an fpht <-

such a decision on the ground that it may involve

“subjectivity” is the creation of a rule of judicial

abdication that flies in the face of the language,

history, and purpose of the Fourteenth Amendment

and 42 U.S.C. § 1983. See Original Brief at p. 47.

(F) As to the Court's decision on issue (1), the Court is

factually wrong, and therefore legally wrong as well. The

Court says the merits were raised by the motion to dismiss.

They were not! Original Brief at pp. 7-11 and nn. 21-30; 13

and n. 39; 16-20 and nn. 50-55. The Court says the merits were

adequately briefed. There was no such briefing whatsoever!

Original Brief at pp. 7-11 and nn. 21-30; 13 and n. 39; 16-20

and nn. 50-55; 49-50 and nn: 128-135. The Court says the

trial judge gave John L. Stebbins, Jr.’s complaint the benefit

of liberal construction and fair inferences. The trial judge did

not! Original Brief at pp. 22-41 and nn. 56-122. The Court

says the trial judge considered the entire record before ruling,

and the Court cites for that proposition the trial judge’s stand-

ard-form closing recitation “. . . upon the basis of the whole

record...” However, again, as we pointed out in our Original

Brief, the trial judge did not consider the entire record, for that

record, even more so than the pleadings, contravenes the trial

judge’s “findings” of fact. Original Brief at pp. 6 and nn. 19

and 20: 29-30 and nn. 74-76; 41 and nn. 117-122. The Court

says the trial judge invited further factual information. He did

not! Original Brief at pp. 13-14 and nn. 40-41; 19 and nn.

54-55; 30 and n. 76; 41 and n. 121; 49-51 and nn. 128-135.

The Court says no further factual information came forth from

John L. Stebbins, Jr. It did! App. Doc. No. 24; Original

Brief at pp. 30 and n. 76; 41 and n. 121; 49-51 and nn. 128-

135. Then, the Court concludes by telling us that “[iJn such

a setting, there was no abuse of Rule 12.” The trouble is there

was no “such a setting”; there was, rather, a setting which, as

this paragraph AND THE RECORD show, is in every respect

the opposite of this Court’s description. Once the real setting

— A-12 —

is admitted, the conclusion of the Court falls: there was glar-

ing abuse of Rule 12. Original Brief at pp. 16-20 and nn.

50-55.

(G) As to the Court’s decision on issue (3), the Court is again

factually wrong, and therefore legally wrong as well. The Court

says the amended and suppiemental compaint “alleged no new

facts which would have required the court to reconsider its

earlier decision.” But a simple comparison of App. Doc. No. 2,

the original complaint, and App. Doc. No. 24, the amended

and supplemental complaint, shows the specific allegation of ap-

proximately one hundred new facts, all of which were alleged

to meet directly the trial court’s erroneous factual assumptions

and inferences. All this, too, was set forth in our Original Brief;

and, here too, once the reality is admitted, the Court’s con-

clusion that the motion to file the amended and supplemental

complaint “was properly denied,” must fall. Original brief at

pp. 48-53 and nn. 128-142.

(H) It follows from paragraphs (A) through (G), hereof, that

this Court is also legally obliged on this record to decide, and

cannot lawfully avoid, issues (2), (4), and (5), i.e., the proce-

dural and substantive due process merits, the 42 U.S.C. § 1983

“persons” questions, and the Eleventh Amendment immunity

questions. Those were the dispositive questions below; they

were properly brought here on appeal and cross-appeal; they

were briefed and argued; and Article II] compels them to be

decided. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

(Marshall, C.J.). See also Marbury v. Madison, 5 US. (1

Cranch) 137 (1803) (Marshall, C.J.), See generally Wechsler,

Toward Neutral Principles of Constitutional Law, 73 Harv. L.

Rev. 1, 6-9 (1959).

(1) This Court’s decision respecting “property” and “liberty”

and this Court’s dicta on the scope of judicial review of arbitrary

and capricious tenure denial decisions have the effect of deny-

— A-13 —

ing the protection of the Fourteenth Amendment to the United

States Constitution to every non-tenured professor in the Uni-

versity of Wisconsin system and very likely to every non-tenured

public employee in the States of Illinois, Indiana, and Wisconsin.

(J) This Court’s choice not to decide the three major sub-

stantive questions decided by the trial court leaves the law dis-

turbed and unsettled as to important and basic constitutional

and statutory questions, critical to this case, to state govern-

ments and those who seek properly to sue them, and to the fed-

eral trial courts in this Circuit.

SUMMARY

In sum, this Court's brief Per Curiam opinion works a grave

abridgement of the individual rights of John L. Stebbins, Jr.,

while at the same time setting precedent which forecloses the

Fourteenth Amendment rights of public employees and failing

to set precedent—though obliged to do so—which would re-

solve important and basic, currently unresolved questions of law

as to which citizens, state governments, and the federal trial

courts in this Circuit require guidance.

Respectfully submitted,

/s’ WALTER F. KELLY

GOLDBERG, PREVIANT &

UELMEN s.c.

6th Floor Midland Bank Building

211 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

(414) 271-4500

Attorneys for Plaintiff-Appellant, Cross-

Appellee, John L. Stebbins, Jr.

—_

APPENDIX C

John L. Stebbins, Jr.,

Plaintiff-Appellant, Cross-Appellee,

v.

John C. Weaver and Board of Regents of the

University of Wisconsin System,

Defendants-Appellees, Cross-Appellants.

Nos. 75-1845, 75-1846.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 27, 1976.

Decided July 7, 1976.

Rehearing and Rehearing En Banc

Denied Aug. 3, 1976

Before CUMMINGS and SPRECHER, Circuit Judges, and

STECKLER, District Judge.*

PER CURIAM.

In this civil rights action filed under 42 U.S.C. § 1983, plain-

tiff, formerly an assistant professor in the Mathematics Depart-

ment of the University of Wisconsin-Milwaukee, challenges de-

fendants’ refusal to grant him tenure. Plaintiff was first em-

ployed as an assistant professor in 1965 pursuant to a 3-year

contract. Thereafter he received another 3-year contract. At

* The Honorable William E. Steckler, Chief Judge of the Southern

District of Indiana, is sitting by designation.

ee

— A-15 —

the time of his 1965 appointment plaintiff was informed that with

normal development in the areas of teaching, research and com-

munity service he could expect to obtain tenure. During his six

years’ service, he had an extremely successful teaching career

and was productive in terms of academic publishing and com-

munity service. However, in March 1970, the dean of the Col-

lege of Letters and Science advised plaintiff that his appoint-

ment would terminate in June 1971 upon the expiration of his

second contract of employment.

In January 1970, the Executive Committee of the Depart-

ment of Mathematics voted to deny plaintiff tenure. At its July

1970 meeting, the Executive Committee gave the following rea-

sons for its action:

1. His research was not such as to warrant promotion;

2. His area of complex analysis was adequately covered by

tenured faculty in the department.

In late March and early April 1971, the Executive Committee

of the Mathematics Department considered whether to reopen

its earlier decision regarding plaintiff's tenure. During the four

days of hearings, he was given an opportunity to present infor-

mation concerning his qualifications, but nevertheless the Com-

mittee did not change its original decision. Two of the com-

mittee members did not attend all the hearings but participated

in the final vote. The Committee refused plaintiff's request that

the decision be based solely on the evidence adduced at the

hearings. It refused to disqualify members who had participated

in the earlier decision under review. Plaintiff was not allowed

to examine members of the Committee as to the evidence upon

which they had made their earlier decisions, and the Committee

refused to state in writing the evidence on which it based its de-

terminations. At this session, no information or evidence un-

favorable to the plaintiff was presented but information over-

whelmingly favorable to him was considered.

— A-16 —

Plaintiff's subsequent appeals were respectively denied by the

dean of the College of Letters and Science of the University of

Wisconsin-Milwaukee, the University Committee there, the presi-

dent of the University of Wisconsin System and finally by the

Board of Regents.

This action against the president and the Board of Regents

of the University of Wisconsin System was then instituted. Plain-

tiff sought a judgment that their decision not to promote and

grant him tenure violated his rights under the Fourteenth Amend-

ment. He also sought reinstatement as an assistant professor

and an injunction against defendants’ filling any tenured posi-

tions in the Mathematics Department of the University of Wis-

consin-Milwaukee “until a final determination is made in ac-

cordance with procedural due process as to whether the Plaintiff

should be granted tenure as a professor” in the department.

The district court ultimately granted defendants’ motion to

dismiss the action on the ground that the complaint failed to

state a claim on which relief could be granted. Stebbins v.

Weaver, 396 F.Supp. 104 (W.D.Wis.1975).

In his comprehensive opinion, the district judge overruled

defendants’ contentions that they were not persons within the

meaning of 42 U.S.C. § 1983 and that the suit was barred by

the Eleventh Amendment. He pointed out that plaintiff had

alleged “an explicit, though unwritten, contractual agreement

under which he was entitled to tenure provided certain condi-

tions on his part were met, and he has alleged that those con-

ditions were met.” 396 F.Supp. at 111. Therefore, Judge Doyle

concluded that dismissal for lack of a protected property in-

terest in reemployment would be improper in the absence of

whatever evidence plaintiff might be able to submit.

Balancing the interests of the State and the plaintiff, the

court decided that he was constitutionally entitled to “some

—_ <<

minimal due process.” 396 F.Supp. at 112. However, the court

found that the procedure followed by the defendants in this

case was sufficient to comply with the requirements of due -

process. We affirm the decision of the district court to dismiss

the suit, but we rely on different reasons.

[1] Initially, plaintiff attacks the district court's failure to

permit him to file an amended and supplemental complaint. -

Plaintiff sought to file this pleading after the court had rendered

but stayed its original ruling. The new complaint alleged no

new facts which would have required the court to reconsider

its earlier decision. Consequently, the motion to file the com-

plaint was properly denied. Asher v. Harrington, 461 F.2d 890,

895 (7th Cir. 1972); O'Bryan v. Chandler, 352 F.2d 987,

990-991 (10th Cir. 1965), certiorari denied, 384 U.S. 926,

86 S.Ct. 1444, 16 L.Ed.2d 530.

[2] Plaintiff also asserts that the district court should not

have decided the merits of this case under Rule 12 of the Fed-

eral Rules of Civil Procedure. However, the merits were put

in issue by virtue of defendants’ motion to dismiss for failure

to state a claim upon which relief could be granted and were

adequately briefed below. Judge Doyle accepted the truth of

the allegations of the complaint, construed liberally to the plain-

tiff, and considered the entire record before ruling. 396 F.

Supp. 106, 117. He even invited further factual information,

but none wdas forthcoming. In such a setting, there was no

abuse of Rule 12.

[3] Because the case is before us on defendants’ motion to

dismiss, we also must take as true plaintiff's allegation that he

was informed that he could eventually expect tenure if he met

certain standards of professional competence. This is of course

true of most neophyte members of university faculties, includ-

ing this very institution. Board of Regents v. Roth, 408 U.S.

564, 566-567, 92 S.Ct. 2701, 33 L.Ed.2d 548. As with Roth,

— A-18 —

it is settled that plaintiff “did not have a property interest suf-

ficient to require” the Fourteenth Amendment's procedural pro-

tections. 408 U.S. at 578, 92 S.Ct. at 2710.' Our decision in

Hostrop v. Board of Junior College District No. 515, 523 F.2d

569 (7th Cir. 1975), certiorari denied, — U.S. —, 96 S.Ct.

1748, 48 L.Ed.2d 208, 44 LW 3624 (Hostrop Il) is not to

the contrary, for there the junior college president was dis-

charged in July 1970 even though he had a valid employment

contract at least through June 30, 1971.

As to plaintiff's liberty right, there is no allegation that de-

fendants have injured his good name, reputation, honor or in-

tegrity by charging him with dishonesty or immorality. He is

free to seek another job. There has been no public disclosure

of the reasons for the denial of tenure. Therefore he has not

been deprived of liberty. Board of Regents v. Roth, supra, 408

U.S. at 573-575, 92 S.Ct. 2701; Bishop v. Wood, supra, —

U.S. at —, 96 S.Ct. at 2077, 44 LW at 4822.

[4-6] Plaintiff also asserts that the defendants’ arbitrary and

capricious action in denying him tenure violated his constitu-

tional right to substantive due process. This argument in effect

asks us to review the merits of the decision to deny plaintiff

tenure.- We decline to do so. The right to substantive due

! See also Bishop v. Wood, — U.S. —, —, —, 96 S.Ct. 2074,

2077-2080, 48 L.Ed.2d 684, 44 LW 4820, 4821-4822. In Perry

v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, the

plaintiff was entitled to show his entitlement to continued employ-

ment because of the de facto tenure program at Odessa College.

- Even if plaintiff were entitied to procedural due process, our

scope of review of the tenure decision would be limited to determin-

ing whether it was arbit. wy or capricious. Chung v. Park, 514 F.2d

382, 387 (3d Cir. 1975) certiorari denied, 423 U.S. 948, 96 S.Ct.

364, 46 L.Ed.2d 282, 44 LW 3280; Thompson v. Gallagher, 489

F.2d 443, 447 (Sth Cir. 1973). However, in cases such as this one,

where the decision is based on a subjective evaluation, we would de-

cline to review the merits absent some showing of gross abuse.

Chung v. Park, supra... ..

— A-19 —

process, as then Judge Stevens admonished, is no greater than

the right to procedural due process in this type of case. As seen,

Stebbins had no property or liberty right entitling him to pro-

cedural due process, and accordingly there is no basis upon

which we can say the denial of tenure was error.* Jeffries v.

Turkey Run Consolidated School District, 492 F.2d 1, 4 (7th

Cir. 1974); Miller v. School District Number 167, Cook

County, Illinois, 495 F.2d 658, 660 (7th Cir. 1974); cf. TA

Moynahan Properties, Inc. v. Lancaster Village Corp., Inc.,

496 F.2d 1114, 1117 (7th Cir. 1974).

Because the due process and other points have been resolved

in defendants’ favor, it is unnecessary to resolve whether they

are “persons” within 42 U.S.C. § 1983 and whether they are

immunized by the Eleventh Amendment, as presented by the

cross-appeal.

Judgment affirmed.

* Of course, had plaintiff been able to demonstrate that the de-

cision was based on an impermissible discrimination, such as on the

basis of race, or made in retaliation for the exercise of a protected

right, we would review it. Hostrop II, supra, 523 F.2d at 573; Illinois

State Employees Union v. Lewis, 473 F.2d 561, 568 (7th Cir.

1972), certiorari denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d

590.

— A-20 —

APPENDIX D

John L. STEBBINS, Jr., Plaintiff,

Vv.

John C. WEAVER and Board of Regents

of the University of Wisconsin

System, Defendant.

No. 72-C-111.

United States District Court,

W. D. Wisconsin.

June 3, 1975.

JAMES E. DOYLE, District Judge.

This is a civil action for declaratory and injunctive relief.

Jurisdiction is invoked pursuant to 42 U.S.C. § 1983. The

amount in controversy is alleged to exceed ten thousand dollars

exclusive of interest and costs.

Plaintiff seeks a declaratory judgment holding that, both as

to form and result, the procedures by which he was denied tenure

as a member of the faculty of the University of Wisconsin-Mil-

waukee violated the due process clause of the Fourteenth Amend-

ment of the United States Constitution. He further seeks injunc-

tive relief reinstating him as an assistant professor, and barring

the defendants both from denying him tenure without awarding

him a hearing procedure comporting with constitutional require-

ments and from filling any tenured positions in the Mathematics

Department of the University of Wisconsin-Milwaukee until

such time as a final decision regarding the plaintiff's tenure is

reached by means of a constitutionally adequate decision-mak-

ing process.

— A-21 —

Defendants have moved to dismiss this action on the grounds

that this court lacks jurisdiction over the subject matter and

that the complaint fails to state a claim upon which relief can

be granted. It is to this motion that this opinion and order are

addressed.

For the purpose of this motion, I take as true the allegations of

the complaint, construed liberally to the plaintiff. Those allega-

tions are summarized in the following section of this opinion

headed “Facts.”

Facts

Plaintiff is a Wisconsin resident. Defendants Weaver, Presi-

dent of the University of Wisconsin System, and the Board of

Regents of the University of Wisconsin System are legally em-

powered to govern and manage public higher education in Wis-

consin, and to appoint professors at the University of Wisconsin-

Milwaukee. In 1965 plaintiff was retained by the predecessors

of the defendants as an assistant professor in the Mathematics

Department of the University of Wisconsin-Milwaukee pursu-

ant to a three-year contract. At the time of his appointment, the

plaintiff was informed that with normal development in the areas

of teaching, research, and community service he could expect

to obtain tenure. During the ensuing six years the plaintiff en-

joyed an extremely successful teaching career, was productive

both in terms of academic publishing and community service,

received a second three-year contract at the conclusion of the

first three years, was awarded merit salary raises, and was as-

signed expanded duties. |

In January of 1970, however, the Executive Committee of

the Department of Mathematics met and voted to terminate

plaintiff's faculty appointment. Plaintiff was not notified of the

meeting, nor given an opportunity to be heard, nor allowed to

confront the witnesses against him, nor permitted to submit to

— A-22 —

the Committee copies of his professional works or a record of

his accomplishments.

On July 6, 1970 the Executive Committee met again, and

took a position on the reasons for which the plaintiff was de-

nied tenure: (a) his research was not such as to warrant promo-

tion; and (b) his area, namely, complex analysis, was adequately

covered by tenured faculty in the Department. Again the plain-

tiff was not given an opportunity to be present at the Com-

mittee’s meeting. Four months later, the Committee voted to

promote and to award tenure to an assistant professor, other

than plaintiff, who was also untenured and who had the same

research specialty. Because the conduct and decisions of the

Executive Committee were repeatedly disapproved by the Dean

of the College of Letters and Science, the Executive Committee

became hostile toward plaintiff.

In March of 1971, the Executive Committee held hearings on

the issue of reopening its earlier decision regarding the plaintiff's

tenure status. After four days of hearings, during which the

plaintiff was given an opportunity to present information con-

cerning his qualifications the Committee voted to allow their

original decision to stand, thus denying the plaintiff tenure

status and effectively terminating his employment at the Uni-

versity. Two of the committee members who participated in the

vote on whether the plaintiff's case should be reopened did not

attend the “substantive portions of the hearings.” The Com-

mittee refused plaintiff's request that its decision be based solely

on the evidence adduced at the hearing. The Committee re-

fused to disqualify from participation in the hearing or subse-

quent vote members who had participated in the earlier decision

then under review. Plaintiff was not allowed to examine Com-

mittee members as to the evidence upon which they had made

their earlier decisions to deny him promotion. The Committee

refused to state in writing the evidence upon which it based its

determinations. No information unfavorable to the plaintiff was

ee en

— A-23 —

presented at the hearing. Information overwhelmingly favorable

to the plaintiff was presented at the hearing.

The plaintiff then appealed both alleged procedural errors by,

and the substantive decisions of, the Executive Committee to

the Dean of the College of Letters and Science of the University

of Wisconsin-Milwaukee, then to the University of Wisconsin-

Milwaukee University Committee, then to the defendant Weaver,

and finally to the defendant Board of Regents. Each reviewing

agency or person allowed the decision of the Executive Com-

mittee to stand.

Opinion

I. Jurisdiction

A. 28 U.S.C. § 1343(3).

[1] Defendant Weaver argues that this court lacks subject

matter jurisdiction over this suit against him, as he is being sued

in his “official capacity” and is therefore not a “person” within

the meaning of 42 U.S.C. § 1983.' I hold that defendant Weaver

is a “person” for the purpose of § 1983 regardless of whether he

is being sued in an individual or official capacity.

[2, 3] Since Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961), it has been clear that state officials charged

as individuals with unconstitutional activity are amenable to

suit under 42 U.S.C. § 1983. Federal jurisdiction may also be

exercised through § 1983 to redress constitutional wrongs

. through requiring appropriate official acts by officials

sued in their representative capacities.” Harkless v. Sweeny

Independent School District, 427 F.2d 319, 323 (Sth cir. 1970).

The Supreme Court has frequently permitted relief under § 1983

! It may be that only a § 1983 cause of action can provide a fed-

eral court with subject matter jurisdiction under § 1343(3). See

City of Kenosha v. Bruno, 412 U.S. 507, 511-513 (1973); The Su-

preme Court, 1972 Term, 87 Harv.L.Rev. at 254, footnote 15.

a Dt

against state officials sued in this representative capacity.* See,

e. g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d

506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11

L.Ed.2d 481 (1964). Although the distinction between a suit

against a state official individually and one naming that same

defendant in an official capacity may be relevant to issues of

constitutional or common law immunity (see the following sec-

tion of this opinion), it is immaterial to the definition of the

term “person” in § 1983. Defendant Weaver is a “person” under

$ 1983, and subject matter jurisdiction over the suit against

Weaver is present under 28 U.S.C. § 1343(3).

The defendant Board of Regents also contends that this court

lacks subject matter jurisdiction in this suit against it, arguing

that state agencies are not “persons” for the purpose of § 1983.

It is true that other circuits have held state agencies in general

and educational institutions in particular to be outside the scope

of § 1983. See, e. g., Whitner v. Davis, 410 F.2d 24 (9th cir.

1969); Blanton v. State University of New York, 489 F.2d 377

(2nd cir. 1973). The law of the Seventh Circuit, however, is

quite clearly to the contrary. In Lee v. Board of Regents of

State Colleges, 441 F.2d 1257 (7th cir. 1971), a state agency

similar to the present Board was held to be a “person” for the

* The exclusion of “municipalities” from the scope of § 1983, see

Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.

2d 596 (1973) and City of Kenosha v. Bruno, 412 U.S. 507, 93

S.Ct. 2222, 37 L.Ed.2d 109 (1973), has no bearing on whether

State officers are “persons” within the meaning of that statute. And

the notion that the term “person” in § 1983 was not intended to refer

to individual state officers, whether sued in their representative ca-

pacity or not, is so strained and would produce such a substantial

reduction in the power of the federal courts to vindicate federal

rights, that I would be loathe to accept it without explicit direction

from an appellate court.

The contention of the defendant that state officials sued in their

official capacity are not “persons” because they are the “state,” is an

attempt to raise an Eleventh Amendment defense as if it were a

Statutory claim. It will be discussed in the following section on the

Eleventh Amendment.

ee

oe NO RS as 6 EI Ret Oe

—~ =

purpose of 42 U.S.C. § 1983. See also Roth v. Board of Re-

gents of State Colleges, 310 F.Supp. 972, 974 (W.D.Wis.1970),

aff'd 446 F.2d 806 (7th cir. 1971) rev'd on other grounds, 408

U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The defendar. Doard argues that these Seventh Circuit de-

cisions were implicitly overruled by the Supreme Court's de-

cisions in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct.

1785, 36 L.Ed.2d 596 (1973) and City of Kenosha v. Bruno,

412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In

Moor, elaborating on its holding in Monroe v. Pape, supra, the

Court held counties not to be “persons” for the purposes of

$ 1983. Bruno established that municipalities were not “per-

sons” under § 1983 irrespective of the relief requested in any

action brought against them. The defendant argues that a state

agency is a “political subdivision” of the state, and therefore no

more subject to suit under § 1983 than are cities and counties.

See Moor, 411 U.S. at 693, 93 S.Ct. 1785.

The Monroe, Moor, and Bruno decisions were exercises in

statutory interpretation. In each case the Court turned to the

legislative history of § 1983 to find an explicit intent to exclude

cities and counties from the scope of that statute. The decision

to exclude “municipalities” from the reach of § 1983 was

prompted by a fear on the part of influential House members

that Congress lacked “the constitutional power to impose li-

ability” upon such entities. Moor, 411 U.S. at 709, 93 S.Ct. at

1796. In the opinion of these congressmen, the Congress had

the power to impose liability on the states on the one hand and

individuals on the other, but not “local subdivisions” of govern-

ment. /bid., footnote 24. The Conference Committee was told

by the delegates from the House that a section of the Senate’s

proposed bill imposing liability upon towns and counties

“. . . must go out or we should fail to agree.” 411 U.S. at 709,

93 S.Ct. at 1796. Congress had no doubt that states were sub-

ject to the provisions of the Fourteenth Amendment and could

a ee

— A-26 —

be held responsible for the preservation of a citizen’s rights un-

der the Constitution. See Moor, 411 U.S. 709, at footnote 24,

93 S.Ct. 1785. The argument that liability could clearly be

placed upon the states was advanced against imposing such li-

ability upon cities and counties. If liability could be constitu-

tionally imposed on the states, it could be imposed on their

agencies as well. While cities and counties were frequently

mentioned in legislative debate as examples of the “subdivisions”

not to be included as “persons” under § 1983, state agencies

were not. Congress saw no constitutional impediment to im-

posing liability on state agencies and no need to place them be-

yond the ambit of § 1983.

[4] I follow the law of this circuit holding such agencies to be

“persons” for the purpose of § 1983. Subject matter jurisdic-

tion in this suit against the defendant Board of Regents exists

under 28 U.S.C. § 1343(3).

B. The Eleventh Amendment

B. The Eleventh Amendment to the Constitution of the

United States provides: “The Judicial power of the United

States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United

States by Citizens of another State . . .” The Eleventh Amend-

ment is considered to bar suits in federal court in which an un-

consenting state is named as a defendant by one of its own

citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.

842 (1890); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154,

64 L.Ed. 280 (1920); Parden v. Terminal R. Co., 377 US.

184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Defendant

Weaver contends that because he is being sued in his official

capacity, the plaintiff's suit against him is a suit against the state

of Wisconsin for the purpose of the Eleventh Amendment. He

considers it irrelevant that the plaintiff has requested only in-

junctive and declaratory relief, rather than monetary damages.

Ce

ee ae ena ee ae ses a

—

He states that the law of Wisconsin considers a suit against a

state officer in his or her “official” or “representative” capacity

to be a suit against the state. I will assume that defendant Weaver

is correct in that contention.

[5-7] The proper interpretation of the Eleventh Amendment

is a question of federal law. State law is relevant only to the

extent that federal law makes it so. The history of the Eleventh

Amendment reveals its purpose to be protection from suits

brought in the federal courts seeking to impose a liability which

must be paid from state governmental funds. Cohens v. Virginia,

19 U.S. 264, 405, 5 L.Ed. 257 (1821); Edelman v. Jordan,

415 US. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). It bars

actions which are “in essence one(s) for the recovery of money

from the state . . . even though individual officials are nominal —

defendants.” Ford Motor Co. v. Department of Treasury, 323

U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); accord,

Edelman v. Jordan, supra.

[8] In situations where a state official is sued for damages or

a retroactive injunction compelling payments of some kind, a

federal court may be required to consider the relationship under

state law between the defendant official and the state. If that

relationship is such that any monetary judgment rendered against

the defendant official would necessarily be paid out of a state

treasury rather than out of the official’s personal resources, then

a suit for monetary relief against that official will be considered,

for the purpose of the Eleventh Amendment, a suit against the

state. Great Northern Life Insurance Co. v. Read, 322 US.

47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Kennecott Copper

Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.

Ed. 862 (1946).

{9] Under constitutional principles long established and re-

cently reaffirmed, however, the Eleventh Amendment does not

bar a suit by a citizen against a state officer where the relief re-

— A-28 —

quested is a prospective injunction against allegedly unconstitu-

tional behavior on that officer’s part. Ex Parte Young, 209 U.S.

123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Edelman v. Jordan,

415 US. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Scheur

v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

The Young principle—that a state official can be acting “under

color of state law” for the purpose of the Fourteenth Amendment,

though not qualifying as the “state” for the purpose of the

Eleventh—has been called a “fiction.” 3 Davis, Administraitve

Law § 27.03 (1958). If so, it is a durable fiction, critical to the

network of protections afforded constitutional liberties. Long

after the passage of the Eleventh Amendment, the Fourteenth

Amendment created for the first time constitutional guarantees

against the unwarranted exercise of state, as opposed to federal,

power. Congress radically expanded the jurisdiction of the fed-

eral courts, demonstrating its intention to establish the federal

judiciary as the primary “guarantor of basic federal rights against

State power.” Mitchum v. Foster, 407 U.S. 225, 238-239, 92

S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972); see also Frankfurter

and Landis, The Business of the Supreme Court: A Study in the

Federal Judicial System, 64 (1928). This guardianship could

not be maintained by the federal courts if they lacked the power,

claimed in Young and reaffirmed consistently since then,* to

enjoin unconstitutional actions by state officials.

Defendant Weaver maintains that if defendants are enjoined

to rehire plaintiff, his future wages will be paid out of state funds.

It is a rare prospective injunction against a state official that will

not affect a state treasury in the same way.* Acceptance of de-

fendant’s position would severely limit Young. Defendant urges

that Edelman v. Jordan and Scheur v. Rhodes, supra, \end sup-

* See, e. g., Georgia R.R. & Banking Co. v. Redwine, 342 U.S.

299, 304, 72 S.Ct. 321, 96 L.Ed. 335 (1952).

4 See Justice Rehnquist’s discussion of this point in Edelman, 415

U.S. at 651, 94 $.Ct. 1347.

ao 5 ee Ae ee tas

s — A-29 —

port to his contention. Examination of Edelman or Scheur

reveals that they explicitly rejected any narrowing of the Young

principle. In Edelman, the court heid the Eleventh Amendment

a bar to a suit in federal court seeking the payment of back wel-

fare benefits illegally withheld by a state agency from eligible

recipients. The Court stated clearly that the Eleventh Amend-

ment posed no bar to that part of the suit seeking an injunction

to compel the payment of such benefits prospectively. The Court

found that “such an ancillary effect on the state treasury is a

permissible and often an inevitable consequence of the principle

announced in Ex Parte Young, supra.” 415 U.S. at 669, 94

S.Ct. at 1358. The Court is equally clear in Scheur that the rule

of Young “that the Eleventh Amendment prevides no shield for

a state official confronted by a claim that he had deprived an-

other of a federal right under the color of state law” remains

“well settled” in cases involving “a question of the federal courts’

injunctive power, [as opposed to claims] for monetary damages.”

416 US. at 238-239, 94S.Ct. at 1687.

{10} Suits against state educational officers have been upheld

against an Eleventh Amendment defense on previous occasions

in this court. See, e. g., Roth v. Board of Regents of State Col-

leges, 310 F.Supp. 972 (W.D.Wis.1970), aff'd 446 F.2d 806

(7th Cir. 1971), rev'd on other grounds, 408 U.S. 564, 92 S.Ct.

2701, 33 L.Ed.2d 548 (1972); Lee v. Board of Regents of

State Colleges, 306 F.Supp. 1097 (1971) aff'd 441 F.2d 1257

(1971). Plaintiff's claim for prospective injunctive relief against

defendant Weaver is not barred by the Eleventh Amendment.

{11} Defendant Board of Regents also claims that the plain-

tiff's suit against it is a suit against the state barred from federal

court by the Eleventh Amendment. If this were a suit for

damages I would be required to examine carefully whether any

monetary judgment against the Board would be satisfied out of

the state funds. See, e. g., Hopkins v. Clemson College, 221

U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890 (1911). However, the

— A-30 —

relief requested is solely a prospective injunction. The prin-

ciple of Young is as applicable to a suit against a state agency

for prospective injunctive or declaratory relief as it is to a suit

against an individual state officer. Lee v. Board of Regents,

supra at 441 F.2d 1260. Plaintiff's suit against the Board is

not barred by the Eleventh Amendment.

Il. Motion to Dismiss for Failure to State a Claim

A. Presence of “property” interest.

Defendants contend that Board of Regents v. Roth, 408 US.

564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sind-

ermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)

conclusively hold that a nontenured faculty member whose con-

tract has expired has no remaining interest in employment pro-

tected by the due process clause, and therefore can be severed

from state employment without being afforded the procedural

and substantive protections available when one’s liberty or prop-

erty is at stake. In Roth, the court noted that the record dis-

closed simply that a person hired by the state for one year had

not been rehired for a second. It found in these circumstances

alone no legally cognizable interest in continued employment

requiring protection under the Fourteenth Amendment. But in

Perry the Court stated that the absence of an explicit tenure

provision in one’s contract “. . . may not always foreclose the

possibility that a teacher has a ‘property’ interest in re-employ-

ment.” 408 U.S. at 601, 92 S.Ct. at 2769. It held that a

plaintiff could well possess an interest in continued employment

created by some other sort of contractual provision, expressed

or implied, of which he or she could not be deprived constitu-

tionally without being afforded due process. “Subjective ex-

pectancy” of future employment by a plaintiff is not sufficient

to invoke constitutional protections, but a plaintiff claiming a

protected property interest “. . . must be given an opportunity to

Se eae ae eae eae.

SOR Ree ce ee on

oe me ee

ee ee tae See me

— A-31 —

prove the legitimacy of his claim of such entitlement in light of

“the policies and practices of the institution.” 408 U.S. 603,

92 S.Ct. at 2700.

[12] In the present case the plaintiff has alleged an explicit,

though unwritten, contractual agreement under which he was

entitled to tenure provided certain conditions on his part were

met, and he has alleged that those conditions were met. Dis-

missal for lack of such a protected interest would be proper only

after consideration of whatever evidence the plaintiff may be

able to submit.

B. Nature of appropriate due process protection.

The Supreme Court has made clear that due process guar-

antees vary with factual and institutional contexts. See, for ex-

ample, Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593,

33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778,

93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In determining the

nature of the due process protections to which the plaintiff in

this case is entitled, I must “. . . begin with a determination of

the precise nature of the governmental function involved as well

as of the private interest that has been affected by governmental

action.” Cafeteria and Restaurant Workers v. McElroy, 367

U.S. 886, 895, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961).

[13] The basic governmental and private interests at stake

in tenure decisions are readily identifiable. Wisconsin has a

valid and substantial interest in maintaining the highest possible

standards of quality in the educational opportunities offered in

its institutions of higher learning. Because the grant of tenure

is virtually a lifetime guarantee of the opportunity to teach and

to engage in research within the University of Wisconsin system.

the state has an interest in ensuring that those who are offered

tenure are highly qualified to meet those responsibilities. The

state is entitled to investigate the academic qualifications of

faculty candidates, to assess those qualifications, and to grant or

— A-32 —

deny tenure to a given candidate on the basis of that assess-

ment. The interest of the plaintiff in the tenure decision is also

substantial. To be denied this virtual lifetime guarantee is a

significant loss.°

Balancing these interests of the state and the plaintiff, I con-

clude that plaintiff was constitutionally entitled to some minimal

due process.

It is plain from the complaint that during the period of more

than two years while the initial decision of the Executive Com-

mittee was under review, plaintiff was afforded: a statement of

the reasons why the university intended not to promote him;

notice of a hearing at which he could respond to the stated rea-

sons; and a hearing. But plaintiff contends that he was con-

stitutionally entitled to further specific protections, which were

denied him. Before considering separately his claims to each

such protection, I offer an observation about the institutional

context of this case which bears upon all of his claims.

[14] Because the quality of the faculty of the university is

importantly affected by the exercise of the tenure decision, the

state has a valid and substantial interest in placing the power of

operative decision in appropriate hands. Initially, the ques-

tion is whether to place this power within or without the uni-

5 Whether I may consider, without specific evidence of record,

that negative consequences flow from the denial is unclear. In Roth

v. Board of Regents of State Colleges, 310 F.Supp. 971, 979 (W.D.

Wis.1970), I stated: “. . . [I]t is realistic to conclude that non-

retention by one university or college creates concrete and practical

difficulties for a professor in his subsequent academic career.” The

Court of Appeals noted “the substantial adverse effect non-retention

is likely to have upon the career interests of an individual professor.”

446 F.2d 806, 809. The Supreme Court emphasized (408 U.S. at

574, 92 S.Ct. 2701, N. 13) that this was no more than an “assump-

tion,” so far as the case record in Roth was concerned, but said that

even if the assumption were made, “liberty,” within the meaning of the

due process clause, is not at stake when a decision against tenure

by one employer renders a teacher less attractive to some other em-

ployees.

Ot teense ten ee i on

— A-33 —

versity community; it is reasonable to place it within the uni-

versity. The question then becomes where to place it within

the university; it is reasonable to place the power with the mem-

bers of the departmental faculty concerned.

If this allocation of power within the institution comports

with the due process clause of the Fourteenth Amendment, and

I believe it does, many consequences flow. Perhaps the most

consequential is that the operative decision will be formed by the

departmental faculty over a period of years, based upon observa-

tion of the candidate, based upon intuitive responses to the

candidate, based upon the particular member's developing

opinion, and based upon the developing opinions entertained

by other members to the extent that these opinions are shared

from time to time, whether expressly or subtly. Although it is

to be hoped that the members of the departmental faculty will

develop their opinions of the candidate with all the objectivity

and care they can muster, it is quite apparent that inevitably

the subjectivity quotient will be high.

When the time for decision comes, it will not be entered upon

a blank page—as it might be by a judge or a jury carefully

chosen so as to exclude from the process any earlier acquaint-

ance with the candidate and any earlier knowledge of his pro-

fessional capacity and personal characteristics. To demand of the

members of the departmental faculty that they consciously shed

all earlier impressions of the candidate would be sharply to

diminish the very justification for lodging with them the power of

decision.

As against all this is the candidate's interest in a favorable

decision on tenure. It does not follow inexorably that a favor-

able decision is less likely to flow from the extended, complex,

and somewhat obscure process I have described than from a

formal procedure in which the decision is reached in a neutral

and detached forum strictly upon the evidence presented to it.

—_ <a

But when the time for decision comes, and the initial decision

is unfavorable, the candidate’s immediate interest lies in getting

it changed. It is at this stage that there arises an intense desire

on the part of the candidate for a wholly new forum, and, if

not for a wholly new forum, then for procedural arrangements

which lend maximum difficulty to adherence by the present

forum to its initial decision. This represents the more precise

setting within which the interests of the government and those

of the candidate are to be balanced, and I am persuaded that the

balance must be struck generally favorably to the interests of the

government.

1. Participation in initial decision making.

[15] Plaintiff contends that the failure of the defendants to

allow him to participate in the deliberations of the Executive

Committee between January and July of 1970, during which

the Committee initially determined that he was not qualified for

tenure, constituted a violation of procedural due process. One

might well benefit from being present at every stage of a decision-

making process which may adversely affect one’s interest in

liberty or property. The state can fairly claim, however, that

informed and intelligent decision making is served by allowing

certain stages of that same process to unfold free of the limits

on candor and informality imposed by adversarial circumstances.

In the particular institutional context of this case the exclusion

of a tenure candidate from participation in the initial discussion

by a faculty committee on whether to deny tenure is not a

denial of due process. The state’s constitutional ability to exclude

an affected party from this initial stage of decision making is,

however, contingent on the adequacy of the opportunity to

respond to that decision later.

2. Impartiality.

Plaintiff alleges that the later hearing afforded him before the

Executive Committee was constitutionaly inadequate because

ee ee

A cent RE A ah A lene MT OR eee te

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ee ee ee en eee ee es

— A-35 —

(a) the same committee had earlier voted to deny him tenure;

and (b) the committee had become hostile toward him because

its conduct and decisions had been repeatedly disapproved by

the dean.

Contention (a) must fail, particularly in light of Withrow v.

Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).

At stake in Larkin was a physician's license to practice medicine

in Wisconsin, surely an economic stake at least comparable to

plaintiff's economic stake in his teaching position. The mem-

bers of the state medical examining board conducted an “in-

vestigative hearing” at which numerous witnesses testified and

at which the physician's counsel was present. The board en-

tered findings, conclusions, and a decision in which it found

that the physician had engaged in specified conduct proscribed

by statute. Its “decision” stated that there was probable cause

to believe that the physician had violated criminal provisions

of the statutes, and probable cause for a court action to revoke

his license. Meantime, the board proposed to hold a “contested

hearing” to determine whether the physician's license should be

suspended temporarily. A three-judge district court had pre-

liminarily enjoined the board from proceeding with the said

contested hearing. The Supreme Court reversed, holding that

it was quite unlikely that the physician would ultimately pre-

vail in his contention that it would be a denial of due process

for the same board to hold a contested hearing on the issue of

temporary suspension of the license after having conducted the

investigative hearing and after having entered its findings, con-

clusions, and “decision.” The Court emphasized (421 US.

55, 95 S.Ct. 1468):

No specific foundation has been presented for suspecting

that the Board had been prejudiced by its investigation or

would be disabled from hearing and deciding on the basis

of the evidence to be presented at the contested hearing.

The mere exposure to evidence presented in nonadversary

— A-36 —

investigative procedures is insufficient in itself to impugn

the fairness of the board members at a later adversary

hearing. Without a showing to the contrary, state ad-

ministrators, “are assumed to be men of conscience and

intellectual discipline, capable of judging a particular con-

troversy fairly on the basis of its own circumstances.”

United States v. Morgan, 313 U.S. 409, 421 [61 S.Ct. 999,

85 L.Ed. 1429] (1941).

[16] I appreciate that there are many distinctions to be

drawn between the facts in Larkin and the facts as alleged in

the complaint in this case. During the “investigative” stage in

Larkin, the members of the board presumably were not drawing

upon their personal experiences with the particular physician

over a period of time and were not engaging in subjective judg-

ments about his qualifications; also, counsel for the physician was

permitted to be present. Nevertheless, Larkin appears to be

strong and fresh authority for the proposition that, in the

absence of a showing of actual bias, an administrative board

is not foreclosed from conducting a hearing on the merits of an

issue simply because it has earlier examined into the facts and

formed conclusions about them. For reasons I have stated

above, this should be particularly so with respect to depart-

mental faculty members and the question of tenure.

I appreciate that despite what I have said, fundamental fair-

ness might require that when the ground for initial decision is

narrowly factual—for example, alleged improper conduct on a

specific occasion—, the conduct of the subsequent hearing and

the review of the initial decision be consigned to another forum.

But this complaint alleges that the Executive Committee's two

stated reasons were that plaintiff's research was not such as to

warrant promotion and that his area of complex analysis was

adequately covered by tenured faculty. Plaintiff does not allege

that the true reason was neither of these. He alleges only, as we

shall see later, that neither of the stated reasons was supported

by evidence presented at the hearing.

a ed

—*

[17] With respect to the matter of actual bias, I must accept

presently as true plaintiff's allegation that prior to his hearing

the Executive Committee had become hostile to him because its

earlier actions had been criticized by the dean. A decision-

making process which left final control over a determination

in the hands of a board hostile to the party might well be con-

stitutionally defective regardless of the substantiality of the

state’s interest in a given allocation of decision-making power.

In this case, however, the state made available to the plaintiff

some four levels of review through which the final decision

of the Executive Committee could be, and was in fact, appealed.

At none of these levels is it alleged that the reviewing parties

were persons involved in any of the deliberations of the Execu-

tive Committee. The state thus took steps to insure that its

interest in having the plaintiff's hearing held before the Executive

Committee was not furthered at the cost of the plaintiff's interest

in a fair and unbiased review of his initial tenure decision. I

consider these stages of review constitutionally sufficient with

respect to the allegations of actual bias. Also, they served as a

corrective measure for whatever residual difficulties may have

persisted from the fact that the Executive Committee engaged

in a hearing to consider the merits of its own initial decision.

3. Confrontation with board members.

Plaintiff argues that the failure of the Executive Committee

to allow him to examine its members at his hearing was a vio-

lation of due process. As I have noted, there is nothing in the

plaintiff's complaint, however, to suggest that the initial action

of the Executive Committee depended on findings of primary

fact. That action was ostensibly based on a subjective evalua-

tion of the nature and quality of the plaintiff's research. In such

a situation, the opportunity to question the members of the

Executive Committee might be constitutionally required if

needed to provide the plaintiff with an adequate description of

the grounds on which the Committee initially denied him tenure.

— A-38 —

But according to the allegations of the complaint, the statement

given the plaintiff permitted him to marshall and present at his

hearing evidence overwhelmingly favorable to him and so ex-

tensive that the hearing lasted some four days.

4. Grounds not adduced at hearing.

[18] Plaintiff contends that the failure of the Executive Com-

mittee to base its final decision solely on evidence adduced at

this hearing violated his right to procedural due process. Had

the initial decision been based ostensibly on narrow factual

grounds, fundamental fairness might require that all the evidence

purporting to support those grounds be revealed and that the

board consider only that evidence in making its determinations.

But the original decision of the Executive Committee purported

to evaluate the performance of the plaintiff in fulfilling his teach-

ing and research responsibilities over some five years. Fairness

required that before its decision became final, the Committee

consider all evidence as to the quality of that performance that

the plaintiff could marshall. But as I have said more fully

earlier, it was not fundamentally unfair for the members of

the Committee to give weight to their own subjective opinions

of the plaintiffs work, formed over years of knowing and ob-

serving him. Such opinions are a rational and necessary in-

gredient of the qualitative evaluation at the heart of the tenure

process.

5. Incomplete participation by members.

[19} Plaintiff argues that his hearing was constitutionally de-

fective in that two members of the Executive Committee did

not attend some part of the proceedings, though they later

participated in the vote to reaffirm the original decision of the

Committee denying the plaintiff tenure. No doubt the shoddy

manner in which a hearing is conducted can sometimes support

a finding that the aggrieved party has not received a hearing

— A-39 —

“at a meaningful time and in a meaningful manner.” Armstrong

v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d

62 (1965). From the allegations of the complaint it appears

that though the plaintiff's hearing stretched over some four

days, ten members were present at all times. The absence of

two members from part of the hearing did not render the hear-

ing constitutionally inadequate.

6. Substantive arbitrariness.

Plaintiff alleges that the decision of the Executive Commit-

tee, following the hearing, “was arbitrary and capricious in

that it ignores the overwhelmingly favorable information placed

before the Executive Committee.” Plaintiff alleges that no ad-

verse information whatever was presented to or by the committee

at the hearings. He alleges that the arbitrariness of the decision

is demonstrated by the committee’s award of tenure to another

assistant professor with the same research specialty, four months

after the committee had asserted that plaintiff's area of complex

analysis was already covered by tenured faculty.

It is not altogether clear in this circuit whether the “substan-

tive” arbitrariness of an administrative decision raises a federal

constitutional question under the due process clause. In Jeffries

v. Turkey Run Consolidated School District, 492 F.2d 1 (7th

cir. 1974), a public school teacher contended that the school

board’s decision not to renew her contract was completely with-

out basis in fact or logic, and that such an arbitrary and capri-

cious action violated her federal constitutional right to substan-

tive due process. The Court affirmed a dismissal of the com-

plaint on the ground that plaintiff had alleged no stake in “prop-

erty” or “liberty” entitled to either “substantive” or “procedural”

protection by the due process clause of the Fourteenth Amend-

ment. In a rather strong dictum, the Court severely questioned

whether federal judges should impose their own view as to what

may be related or unrelated to the educational process or as to

working relationships within schools. 492 F.2d, at 4. In Miller

— A-40 —

v. School District Number 167, Cook County, Ill., 495 F.2d 658,

660 (7th cir. 1974), one of the claims of a non-renewed public

school teacher was that the reasons for non-renewal as stated by

the board were untrue “and that the board’s action was arbitrary

in the sense that it was completely unsupported by any acceptable

reason... ..” The court described this claim as “comparable to

the ‘substantive due process’ argument which we recently rejected

in Jeffries [citation omitted], and is therefore foreclosed by that

decision.” Thus, the dictum of Jeffries became a holding in

Miller, binding on me. However, in T. A. Moynahan Prop.,

Inc. v. Lancaster Village Coop., Inc., 496 F.2d 1114, 1117 (7th

cir. 1974), the court declared that the cancellation of an agree-

ment by a federal agency “could be challenged by demonstrating

that there was no rational basis for the decision. . . . Cf. Jeffries

v. Turkey Run Consolidated District, 492 F.2d 1, 3 (7th cir.

1974).” The court proceeded to decide that there was a ra-

tional basis for the agency's decision in Moynahan.

It appears that any difficulty arising from this uncertainty as

to the law of the circuit can be avoided here, however. The com-

plaint does not allege that the stated reasons for the decision

were arbitrarily or irrationally inappropriate. It alleges, rather,

that no evidence to support the stated reasons was presented at

the hearing. Perhaps if there was available to the Executive

Committee no factual basis whatever for its stated grounds of

decision, the due process clause would be violated. Thompson v.

Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).

See Jeffries, supra, at 5, n. 14. But both of the stated grounds

for the decision here involved qualitative judgments of some

sort, either of the plaintiff's abilities or of those of the tenured

members of the Mathematics Department. Perhaps such decisions

can never be found to be without basis in fact, for they are not

wholly factual decisions. When a decision purports not to re-

solve questions of primary facts but to evaluate facts, the deci-

sion will often be based on the opinions of persons considered

qualified to make qualitative judgments in a particular area of

—

expertise. Such opinions may be considered an “evidentiary”

basis.

[20] There is a narrower basis on which the plaintiff's claim

must be rejected. He does not claim that the Executive Com-

mittee lacked any evidence on which to base its decision, but

only that no such evidence was presented at his hearing. Thus

his claim that the Executive Committee’s decision was arbitrary

is dependent on the validity of his claim that only evidence pre-

sented at his hearing could be considered when the Committee

voted to affirm or reverse its original decision to deny the plain-

tiff tenure. Because I believe that the Committee was not bound

to consider only evidence laid before it at the hearing, an al-

legation that the hearing evidence was exclusively favorable to

the plaintiff is not sufficient to support a claim that the action

of the Committee subsequent to the hearing was arbitrary and

capricious.

Order

Upon the basis of the entire record herein, defendants’ motion

to dismiss is hereby granted and this action is dismissed on its

merits, together with costs.

— A-42 —

APPENDIX E

John L. Stebbins, Jr.,

Plaintiff,

V

Opinion and Order

John C. Weaver and Board of Regents [{ 72-C-111

of the University of Wisconsin

System,

Defendants. !

Defendants moved to dismiss this action on the ground that

subject matter jurisdiction is lacking because of the Eleventh

Amendment and because neither defendant is a “person” within

the meaning of § 1983; and on the ground that the complaint

fails to state a claim upon which relief can be granted because

it fails to show possession of a job interest entitled to protection

under the Fourteenth Amendment. The brief accompanying the

motion included argument to the effect that, assuming that

plaintiff enjoyed a job interest entitling him to protection under

the Fourteenth Amendment, the complaint shows that he re-

ceived such protection. Plaintiff served and filed a memorandum

in opposition to the motion to dismiss. Defendants served and

filed a reply memorandum repeating their contention that,

assuming plaintiff possessed a protected job interest, due process

requirements had been met in his case, as the case is alleged

in the complaint.

The briefing schedule issued by the clerk following the filing

of defendants’ motion end supporting brief provided that plain-

tif might have a certain time within which to serve and file

“an answering brief, together with such documents as are per-

mitted by Rule 56(e), Federal Rules of Civil Procedure, to be

filed in opposition to a motion for summary judgment.” Pro-

vision was made in the notice for a time within which defend-

ants might serve and file “a rebuttal brief, together with such

|

:

;

|

on £43 —

rebuttal documents as are permitted by Rule 56(e) to be filed

in support of a motion for summary judgment.”

On June 3, 1975, I entered an opinion and order on defend-

unts’ motion to dismiss. I accepted as true the allegations of

the complaint, construed liberally to plaintiff. I decided that

the complaint supported subject matter jurisdiction, as against

defendants’ contentions. I decided that the dismissal for lack

of allegation of a sufficient interest in the job was unwarranted.

But I decided that the complaint did not state a claim that plain-

tiff had been denied the protections afforded him by the due

process clause of the Fourteenth Amendment. Judgment was

entered dismissing the action.

Thereafter, on plaintiff's motion, | ordered that said judgment

be stayed to permit plaintiff to serve and file a motion for leave

to amend and supplement the complaint. A motion for leave

to amend and supplement the complaint, together with a

proposed amended and supplemental complaint, has now been

filed, and it is to this motion that the present opinion and order

are directed.

Plaintiff contends that he was surprised that in its June 3,

1975, opinion and order the court went to the merits of whether

the complaint stated a claim that the due process clause had

been violated. I believe that plaintiff was fairly warned by

defendants’ brief in support of their motion and by their reply

brief that this was one of their contentions.

The language of the scheduling letter then in use by the

clerk of this court, but since modified, was somewhat awkward.

It was not intended as an evaluation of defendants’ motion by

the clerk, characterizing the motion as either a Rule 12(b)(6)

motion or as a Rule 56 motion or as some other kind of motion.

It was intended to convey the meaning,that if a party con-

sidered it permissible and appropriate to submit factual informa-

tion beyond the allegations of the complaint, such submission

am Abt a

must conform to the requirements imposed by Rule 56 with

respect to motions for summary judgment (affidavits on personal

knowledge, such facts as would be admissible in evidence, and

so on). Assuming that plaintiffs counsel found the clerk's

language confusing, I believe that no unfairness could reasonably

have resulted. In their reply brief, defendants emphatically

asserted that their motion was not a motion for summary judg-

ment. If plaintiff remained in doubt, the doubt could have

been expressed to the court at the time and the matter could

have been resolved. However, there is a more basic reason for

my belief that no unfairness could reasonably have resulted.

The adequacy of the complaint te state a claim was clearly put

in issue by defendants’ motion, however the motion might be

classified, and also by both the original brief and the reply brief

of the defendants.

The remaining grounds for plaintiff's motion for leave to

amend and supplement the complaint relate to the “highly fluid

state of the law respecting the constitutional obligations of a

university public employer to its professional employees,” and

to plaintiff's desire to add numerous parties defendant to cope

with defenses relating to “persons” under § 1983 and to “common

law immunity.” The latter consideration is surely untimely. As

to the former, I agree that the state of the law on the subject

is uncertain. However, the complaint herein was filed in April,

1972, and plaintiff has had abundant opportunity long since to

amend his complaint, more than once if reason for it had been

shown.

There comes a time to allow a matter to rest. The time has

come in ‘this case.

Order

Upon the basis of the entire record, it is ordered that:

1. Plaintiff's motion for leave to file an amended and sup-

plemental complaint is“denied.

20. Se RNS RE FSS RS whe

Co eee

— A-45 —

2. The order entered herein June 13, 1975, staying the

judgment entered herein June 3, 1975, is vacated.

Entered this 3rd day of July, 1975.

By the Court:

/s' James E. Doyle

District Judge

—_e

APPENDIX F

Constitutional and Statutory Provisions

Involved

Amendment 14, Section 1, United States Constitution

. . nor shall any State deprive any person of life, liberty, or

property, without due process of law; . z

Wisconsin Statutes

37.11(3), Wis. Stats. (1966)

“To remove at pleasure any president, assistant or other officer

or person from any office or employment in connection with any

such college, but discharges of teachers shall be governed by

§ 37.31.”

37.31(1) (im), Wis. Stats. (1966)

All teachers in any state university shall initially be employed

on probation. The employment shall be permanent, during

efficiency and good behavior after 4 years of continuous service

in the state university system as a teacher. An official leave of

absence shall not constitute a break in continuous service, noi

shall it count toward the 4 years required to attain tenure. No

teacher who has become permanently employed as herein pro-

vided shall be discharged except for cause upon written charges.

Within 30 days of receiving the written charges, such teacher

may appeal the discharge by a written notice to the president

of the board of regents of state colleges. The board shall cause

the charges to be investigated, hear the case and provide such

teacher with a written statement as to their decision. The actior

and decision of the board in the matter shall be final. The term

“teachers” as used in this section includes all persons engaged in

teaching as their principal occupation but shall not include any

university president or acting president in his capacity as presi-

dent of any of the state universities.

ee eee ee et

EO ae ee te ea eee

ee

— A-47 —

A teacher shall lose tenure upon discharge or resignation

from the state university system. A resignation withdrawn and

the withdrawal accepted by the board before the beginning of

the next school semester, not including the summer session, shal!

not be considered as voiding tenure. A teacher losing tenure

must upon re-employment serve another probation period.

36.06(1) (2), Wis. Stats. (1966)

The board of regents shall enact laws for the government of

the university in all its branches; elect a president and the requi-

site number of professors, instructors, officers and employes,

and fix the salaries and the term of office of each, and deiermine

the moral and educational qualifications of applicants for ad-

mission to the various courses of instruction: but no instruction,

either sectarian in religion or partisan in politics, shall ever be

allowed in any department of the university; and no sectarian

or partisan tests shall ever be allowed or exercised in the appoint-

ment of regents or in the election of professors, teachers or

other officers of the university, or in the admission of students

thereto or for any purpose whatever.

The board shall have power to remove the president or any

professor, instructor or officer of the university when, in the

judgment of the board, the interests of the university require it.

Laws and Regulations of the University of

Wisconsin System (1966)

Section 10A.05.

Probationary Appointment Defined. A probationary appoint-

ment is an appointment held by a full-time member of the

academic staff during the probationary period which precedes

determination of tenure status. The conditions of appointment

in the case of either a new appointment or a reappointment to

a probationary position shall be stated in writing in a letter to

the appointee at the time the appointment or reappointment is

made.

—_

UW System Merger and Consolidation (1971)

L.1973 c. 335, §§ 5 and 6 repealed former chapters 36 and 37,

titled respectively: University of Wisconsin and State Universities,

and consisting of sections 36.01 to 336.96 and 37.01 to 37.36

as affected by L.1973, c. 90, 96, 243 and 284. L.1971, c. 100

initially consolidated the University of Wisconsin and the state

universities. The following quoted excerpts L.1971, c. 100 in-

dicate the areas affected by the UW system consolidation and

set forth uncoded transitional and temporary provisions: § 20(4):

Faculty tenure retained. Faculty of the former university

of Wisconsin employed prior to the effective date of merger

shall continue to hold or earn tenure under the tenure rules

in effect on the date of merger. Faculty of the former Wis-

consin state universities employed prior to the effective

date of merger shall continue to hold or earn tenure under

section 37.31 of the statutes and any rules established there-

under. For factulty employed after the date of merger,

existing tenure rules and statutes shall remain in effect until

new rules or statutes become effective. If new tenure rules

or statutes become effective any faculty member mentioned

in this section may elect to hold or earn tenure under the

new rules or statutes.

36.13, Wis. Stats. (1973), Faculty tenure and probationary ap-

pointments

(1) Definitions. In this section:

(a) “Tenure appointment” means an appointment for an un-

limited period granted to a ranked faculty member by the board

upon the affirmative recommendation of the appropriate chan-

cellor and academic department or its functional equivalent

within an institution.

(b) “Probationary appointment” means an appointment by

the board held by a faculty member during the period which may

precede a decision on a tenure appointment.

SS

—_—S

(2) Appointments. (a) A tenure appointment may be

granted to any ranked faculty member who holds or will hold

a half-time appointment or more. The proportion of time pro-

vided for in the appointment may not be diminished nor in-

creased without the mutual consent of the faculty member and

the institution subject only to sub. (5) and s. 36.21.

(b) A probationary appointment shall not exceed 7 consecu-

tive academic years in a full-time position in an institution. A

leave of absence, subbatical or a teacher improvement assign-

ment shall not constitute a break in continuous service nor shall

it be included in the 7-year period.

(3) Rules. The board and its faculties after consultation with

appropriate students shall adopt rules for tenure and proba-

tionary appointments, for the review of faculty performance and

for the nonretention and dismissal of faculty members. Such

rules shall be adopted under ch. 227.

(4) Continuation of appointment. (a) Any person who holds

a tenure appointment under chs. 36 and 37, 1971 stats., and

related rules on the effective date of this act (1973) shall con-

tinue to hold tenure as defined under those chapters and related

rules.

(b) Any person who holds the equivalent of a probationary

appointment under chs. 36 and 37, 1971 stats., and related rules

on the effective date of this act (1973) shall continue to enjoy

the contractual rights and guarantees as defined under those

chapters and related rules, and may clect to be considered for

tenure according to the procedures existing under that appoint-

ment or under sub. (2).

(5) Procedural guarantees. Any person having tenure may

be dismissed only for just cause‘ and only after due notice and

hearing. Any person having a probationary appointment may

— A-50 —

be dismissed prior to the end of the person's contract term only

for just cause and only after due notice and hearing. The action

and decision of the board in such matters shall be final, subject

to judicial review under ch. 227. The board and its several

faculties shall develop procedures for the notice and hearing

which shall be adopted by rule under ch. 227.

(6) Limitation. Tenure and probationary appointments are

in a particular institution. A tenure appointment is limited to

the institution in which the appointment is held.