Petition — Papadopoulos v. Oregon State University
Supreme Court brief1978
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Supreme Court, U. e
} IL, ED
—
DEC 27 \977
\ STATES
GACHAEL RODAK. Jp
October Term, 1977 CLERK |
In The
SUPREME COURT OF THE UNIT
— = ee So
NO, “7-918
me
MICHABL PAPADOPOULOS Ph.D.,
Petittoner,
Vea.
ORBGON STATE UNIVERSITY, et al.,
Reapondenta,
ae ee _ oo: ee = a = =o = = re == —
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
cl, il. i ce eh A EE I I = = ee i ee
Michael Papadopoulos Ph.d.,
5370 NW Lawrence Ave,
CORVALLIS, Oregon 97330,
(S03) =753«3158
Aating pro ae,
Et
INDEX ’ | Page
RAGE | Dean v, Buottea Veneerea, 271 Or 188,
Opinions BELOW cicscreeeeeeeeeeeeee & | 53L P2d 266 (1975) Seesene. ae
di ti n eeeeueeeeeeeeeeeee eee 2 | Hovey Vv, KRiltioet 167 US 409
eanereubuts | 17 BCt 641,044(1897) ..... 27
Questions Presented semoecoecceseoe @
ughea v. Aetna Casualty Co,
Statutory & Constitutional 34 Or 426, 383 P2d $5(1963) .... 22
Provisions Involved eecese € |
. Auenar v, Certifted Realty,
Statement of the Cas TeETELE TE | 272 Or 517,538 P24 57 (1975) Ao
Background to prior litigation .. 9% | Jonee v. Plannigan,
The opinion of the Oregon 270 Or 121,526 P2d 543 (1974) .... 20
Court of Appeals ecccccccce a6
The District Court Proceeding .. 15 | Lawlor v, Nat.Sereen 8 ervioe
vcucdan | 349 US 322 (1954) ..., 25
Reasons for Grant of Writ
Conclusion eeeeeeeeeeeaeeeeeeeeeeenee 27
Opinion Below = .+.++++ 28 MoAllieter v, let Mortgage Ine,
Maoh-Trontioa v, Zirpeli,
Order Denying | 279 Or 279, 547 P2a 539 (1977) ... 24
|
'
316 F2d 8620 (CA 99,1963) .... 2)
Appendix A
Appendix B
Rehearing «+++ 30 MoClellan v, Carland,
Appendix C = Opinion of District 217 US 268 (1910) Ce
Court «eee Sb
Mayer v, let Nattonal Bank,
Appendix D = Judgment of District - 260 Or 119, 489 P2d 385 (1973) ... 24
OS see Meredith v, City of Mnter Haven
Appendix EB = Opinion of tt - 302 US 226 (1943) .... 2)
CORES CF AUPOORH sees Neale v, Goldberg,
Appendix F = Mandate of seeere 91 525 FP2d 332 (CA 9, 1975) «64. 17
Coust OF Appeass =... Papadopoutow v. Bd. of Higher Bd.
Appendix BE = Provisions of Oregon 4 OrApp 130, 511 Pad 654,
Statutes Involved .. 92 | seveeeeees 12,12,14,16,18,20,24,39
, Powter Bachange v. Nat S oreen Service
CITATIONS 456 F2d 662 (CA 5, 1972) =... 26
Prinoesee Lida v. Thomaon
CASES ,
305 US 456 coves 4
Coldwon v. MoXenate,260 Or 237, | , (1939) 23
490 P2d 971 (1971) evvcee 2a RLX v, Taw Commiseton,
| 249 Or 603, 438 Pad 985 (1968) .... 20
See se
Migner v, SMvage,
195 Or 1286, 244 P2d 161(1952) ,.
huawing Cedar Produeta v, Koenneoke
278 Or 603,564 P2d 1061 eeeeee
Wwetern lapttet Mieaton v.Griggea
240 Or 204, 433 P2d 252 (15675 ,
Wintere v, Grimee,
124 Or 214, 264 P 359 (1928) ,,.
Zenith Radto v, Haneltine,
401 US 321 (1971)...25,26.
STATUTES
28 UBC $1254 Coo e rere eeeeeenees
28 USC $1331
28 UBC $1332
286 USC 1343 TEPPER E SESE eee ee
28 usc 1738 TEEPE EEEE EEE EEE
ORS 16,210 coer eee eeeeeeeses
ORS 16,220 Coo ee eee ener eeeees
ORS 16,230 Cee e ee eeeeeeeenee
ORS 43,110 eee e eee eeeeeeeees
ORS 43,140 Coe eeeereeeeeeees
ORS 43,150 cee e eee eeeeeeeees
ORS 43,160 TEEEEEEE EEE EEE
ORS 183,310 Coe e eee ee eeeeenee
ORS 163,420 Coe e eee eeeeeeeseees
ORS 163,470 TEPER EEEE EEE Eee ee
ORS 163,480 eovcccesccecces bby
ORS 183,490 coocccceesceces bby
rage
i a
» Lg
» do
21
3
5,21
5,21
5,21
4,17
23,95
95
23,96
186,96
16,97
16,97
16,97
13,92
92
12,93
23,93
23,94
|
CONSTITUTION
United States Constitution,
Articole ITIL cccces 6,17
United States Constitution
Amendment Voce eeeee 7,27
OTHER
1B, J.Moore, Federal Praocttoe
90.406(1) o#eeeeeenenee 17
90,.406(2) Seee eee ee 27
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1977,
No,
MICHAEL PAPADOPOULOS Ph,.D.,
Petittoner,
va.
OREGON STATE UNIVERSITY, et al.,
Neapondenta,
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
eS ees ee ee a ee eS Se SS
Petitioner entered his complaint in the
District Court against OREGON STATE UNI~
VERSTTY; OREGON STATE BDOARD OF HIGHER
EDUCATION; RAY T, YASUI, JANE CARPENTER,
GEORGE H, COREY, ROBERT D, HOLMES,
ELIZABETH HH. JOHNSON, PHILIP A, JOSS,
GEORGE H. LAYMAN, VALERIE McINTYRE,
W. PHILIP MeLAURIN, MARC Pf, MADEN, JOHN
D. MOSGER, ANCIL H. PAYNE, LOUIS B, PERRY,
JOUN W,. GNIDER, LORAN L, STEWART and
gE. G. WESTERDANL Il, in thetr tndividual
gapactties and in their capacities ae
membera or ae en-membere of the Oregon
State Board of Higher Edueatton; ROY EF,
LIBUALLEN, in hie individual eapaetty and
a a ee Ue
2
in his official capacity as Chancellor of
the Oregon State Board of Higher Education;
ROBERT W. MACVICAR in his individual capa-
city and in his official capacity as
President of Oregon State University; ROY
A. YOUNG & JAMES H. JENSEN in their indi-
vidual capacities and in their official
capacities as ex-presidents of Oregon St
State University; and DAVID B. NICODEMUS
in his individual capacity and in his
official capacity as Dean of Faculty of
Oregon State University,the respondents
herein. ,
Petitioner Michael Papadopoulos Ph.D.,
ae that a writ of certiorari issue to
review the judgment of the United States
Court of Appeals for the Ninth Circuit
entered in the above-entitled case on
August 18, 1977.
OPINIONS BELOW
The District Court entered an unreported
opinion which is set out in Appendix C,
infra, p. 31. The Court of Appeals for
the Ninth Circuit entered an unreported
opinion which is set out in Appendix A,
infra, p. 28.
JURISDICTION
The date of the judgement sought to be
reviewed is August 18, 1977, and the
date of entry is August 18, 1977. Appendix
A, infra, p. 28. An order denying rehearing
was entered on September 29, 1977.Appendizx
B, infra, p. 30. The statutory provision
believed to confer on this Court jurisdic-
tion to review the judgment in question
is 28 USC §1254, 62 Stat. 928.
QUESTIONS PRESENTED
1. Whether the court of appeals is |
authorised by any federal statutory or
constitutional principle to affirm the |
departure from the requirement that the ;
district court give the records and pro-
ceedings of Oregon courts the same full
faith and credit as they have by law or
usage in the courts of Oregon, this being
a case in which the district court failed
or refused to apply Oregon's law of res
judicata to records and proceedings of
Oregon courts.
2. Whether the court of appeals is
authorised by any federal statutory or
constitutional principle to affirm
failure or refusal of the district
court to try an issue, one identical
to the issue placed for determination
before the state court in a pending
proceeding on remand, this being a case
where where petitioner alleged before
the distri@t court that the state court
lacked jurisdiction to determine that,
and other issues.
3. Whether the court of appeals is
authorised by any federal statutory or
constitutional principle to affirm
failure or refusal of the district court
to try the issue, placed before it, of
the limits to the jurisdiction enjoyed !
concurrently by the state court in a
pending proceeding on remand.
ee ee
4. Whether the court of appeals is
authorised by any federal statutory or
constitutional principle to affirm the
district court's decision barring from
litigation on res judicata - collateral
estoppel grounds alone petitioner's
causes of action which had not accrued
at the time of any prior litigation in
the pending state proceeding.
5S. Whether the court of appeals is
authorised by any federal statutory or
constitutional principle to affirm
failure or refusal by the district court
to exercise jurisdiction over causes,
state or federal, which neither were
relevant to the pending state proceeding
involving petitioner and only one of the
respondents, nor were authorised under
state law to be joined in that proceeding.
STATUTORY AND CONSTITUTIONAL PROVISIONS
INVOLVED
The provisions of federal statute in-
volved in the case are:
1. 62 Stat. 947, 28 USC §1738, which in
pertinent part states:
"(The) * * * records and judicial
proceedings (of any court of any
* * * State) * * * shall have the
same full faith and credit in every
court within the United States * * *
as they have by law or usage in the
courts of such State * * * from
which they are taken."
Ce
5
2. 72 Stat. 415, 28 USC $1331, which in
pertinent part states:
"“(a) The district courts shall have
original jurisdiction of all civil
actions wherein the matter in contro-
versy exceeds the sum or value of
$10,000, * * *, and arises under the
Constitution, laws, or treaties of
the United States."
3. 78 Stat.445, 28 USC §1332, which in
pertinent part states:
"“(a) The district courts shall have
original jurisdiction of all civil
actions where the matter in contro-
versy exceeds the sum or value of
$10,000, * * *, and is between --
x * &
(2) citizens of a State, and
foreign states or citizens
or subjects thereof; * * *."
and,
4. 71 Stat. 637, 28 USC §1343, which in
pertinent part states:
" The district courts shall have
original jurisdiction of any civil
action authorized by law to be
commenced by any person:
(1) To recover damages for injury
to his person or property, or
because of the deprivation of any
right or privilege of a citizen of
the United States, by any act done
tee
6
in furtherance of any conspiracy
ee in section 1985 of Title
2;
(2) To recover damages from any
person who fails to prevent or aid
in preventing any wrongs mentioned
in section 1985 of Title 42 which
he -~had knowledge were about to
occur and power to prevent;
(3) To redress the deprivation under
color of any State law, statute,
ordinance, regulation, custom or
usage, Of any right, privilege or
immunity secured by the Constitu-
tion of the United States or by
any Act of Congress providing for
equal rights of citizens or of all
persons within the jurisdiction of
the United States;
(4) To recover damages or to secure
equitable or other relief under any
Act of Congress provided for the
protection of civil rights, * * *."
The provisions of the Constitution of
the United States involved in this case
are:
" Article III
"Section 1. The judicial power of
the United States, shall be vested
in one supreme Court. and in such
inferior Courts as the Congress may
from time to time ordain and esta-
blish. * * *.,:
Te
"Section 2. The judicial power
shall extend to all cases, in Law
and Equity, arising under this Con-
stitution, (and) the Laws of the
United States, * * *; - to contro-
versies * * * between a State, or
the Citizens thereof, and foreign
States, Citizens or Subjects.”
and:
" Amendment V
“ * * *; nor shall any person * * *
be deprived of life, liberty, or
property, without due process of
law; * * *."
The provisions of Oregon statutes involved
in the case ‘are appended, see Appendiz G,
infra, p.92.
a
Cen ee ee ee
+ * Caneel bet ote te
STATEMENT OF THE CASE
The court of appeals affirmed the judg-
ment of the district court. That judgment
was entered in a case involving multiple
claims against multiple parties. (R.67-90)
That judgment was in favor of all the res-
pondents, and it was based on the grant of
summary judgment in favor of all the res-
pondents and against the petitioner. Sumn-
ary judgment was granted solely on the
ground that res judicata - collateral
estoppel is applicable. (R.193)
Petitioner admitted, by his pleading,
having been involved in prior litigation,
he entered his affidavit to state that
the prior litigation had been remanded
for further proceedings in the state
court, and that no proceedings had
taken place on remand. (R. 168) He
alleged by his pleading that the matters
and causes placed before the district court
were and are beyond the jurisdiction of the
state court except as to certain issues
specified in the pleading (R. 74,79)
Petitoner invoked the district court's
jurisdiction on the ground of diversity of
citizenship and amount in controversy; his
complaint shows that he is a citizen of a
foreign State, and that all the respondents
are citizens of States and of the United
States. He also invoked the district court's
jurisdiction because action was authorized
under provision of the United States Consti-
tution as well as under various provisions
of the Civil Rights Act of 1871. He also
alleged that the matter in controversy
exceeds the sum of $10,000, exclusive of
interest and costs. (R.68)
9
Backround to prior Litigation
Petitioner Michael Papadopoulos is
a professor of mathematica, In 1966 the
chairman of the mathematics department of
Oregon State University acted for that
university and for the Oregon State Board
of Higher Education to make petitioner an
offer of position, Petitioner negotiated
the terms, conditions and the purpose
of his proposed service as full professor;
he reached agreement with the chairman
on the terme and conditions ineluding
those creating = security for which
petitioner provided separate consideration,
Petitioner was expected under that agreement
to involve himself in a long term task for
which he was exceptionally well-qualified,
and he had negotiated and reached agreement
for a de faeto tenure status as being proper
in the circumatances, Petitioner arrived
in Oregon in June of 1967 and he wes imme~
diately placed on the payroll as had been
agreed (Rk, 81)
Petitioner performed diligently
and well all the things he was brought to
do, He involved nineelt, additionally and
without detriment to his professional ser-
vice, in various public activities as a
pacifiat, a member of the anti-war movement
and in activities promoting civil liberties
and in opposition to resial inequality.
(Re 73-74)
After serving for three years,
petitoner was prevented from doing the
things he had negotiated and agreed to
do; he was taken off the payroll,
He had been evaluated favorably
by the department during those years both
10
for the award of merit raises in salary,
and for the award of formal recognition
by the Board of Higher Bducation of
indefinite tenure atatus,
Although required under rules and
regulations to be sent up the chain-of-
command for action, those departmental
evaluations were not sent on; they were
prevented from doing so by the Dean of
the School of Science, (R.77-78) Petitioner
received no salary increase during his
three years of service by reason of the
Dean's acts; in place of the report favoring
award of recognition of hia tndefinite
tenure atatus, the Dean sent up the chaln-
of-command a recommendation that petitio-
ner's appointment be terminated. The dean
had, by misrepresentations, procured
support for his recommendation; on the
etrength of such misrepresentationa, which
remained secret,the university president
made the official untveraity decision to
—— petitioner from his sition as
full professor in June of 1970, in breach
of the agreement which petitioner had
negotiated and made with the department
chairman, (R.79)
The Dean had acted on previous occasions
to petitioner's injury. He had made highly
defamatory remarks about the petitioner to
the chairman of the mathematics department
in an attempt to get that chairman to repu-
diate the agreement that had been reached
regarding petitioner'« service as full
professor. (R.75) He had also acted to tell
petitioner that his public activities were
of official concern to the university and
that his future activities would be kept
Li
under continuous serutiny by the office of
the Dean, (R, 76)
Once the official decision to terminate
petitioner's services had been made, the
reasons stated for that decision, namel
that it was the Dean's judgment that seti-
tioner's professional record failed to
demonstrate the degree of scholarly per-
formance expected of a full professor,
were spread on the public record and were
published in the staff newsletter and
elsewhere, (R,82)
At the same time, there had been an
official investigation of the conduct by
the Dean of his office. The report, which
described improper official conduct by the
Dean with regard to the absence of standards
for evaluating professors, and with regard
to other matters, was not made public, and
was only treated as a ney record long
afterwards as the result of a mandamus
proceeding brought by petitioner, (R. 64)
Petitioner appealed to the Board of
liigher Education to evaluate and reverse
the official ne ets | decision under
a provision of regulations permitting
such appeal of. disagreements between
the Jeecident and ataff members at the
university (R.163) He was heard before
a committee of the Board without opportu-
nity to examine witnesses; that committee
restricted to procedural matters the
issues it would hear. The committee ruled
adversely as to the procedural matters
it allowed petitioner to raise, and
ite decision was adopted by the Board,
12
Petitioner, at that time still employed
by the university, filed a petition for
judicial review of administrative decision
pursuant to ORS 183.480 ( wee Appendia @ )
(R.165), Petitioner alleged facts sufficient
to provide authority for the Cireult Court
of Marion County to compel the Board to
act upon a finding of unlawful refusal to
act or of unreasonable delay of action,
and he invoked ORS 183.490 ( wee Appendia
G ) for that purpose,
Petitioner had been taken off the pay-
roll by the time the Cireuit Court ordered
the Board to give petitioner a hearing on
the reasons for his termination,
lle was given a hearing; no lLesues were,
however,set for determination (R, 166)
The Board adopted Findings of Fact not
consisting of a concise statement of the
determination of each contested lasue
( See ORS 183,470;:Appendia @ ))y it approved
the official decision which had aireaty been
put into effect by the university, (R.166)
The Cireult Court affirmed the Board's
decision summarily, and petitioner appealed
to the Oregon Court of Appeals,
The opinion of the Oregon Court of Appeals
The Court of Appeals tasued its opinion
appended hereto. See Appendia FB, p. 39.
It ruled that the dispositive tasue was
whether petitioner was entitled to a hearing
before being discharged effective June 1970,
Papadopoutoa v. Bd.of Higher Ed. 14 OrApp
130,135, 511 P2d 654 (1973) By that ruling
the Court of Appeals avoided a decision
as to the adequacy or validity of the
13
post-discharge hearing which had been held
without petitioner having been given notice
of the issues set for detdrmination,. The
Court of Appeals pointed out that determina~
tion of petitioner's right to a contested
cave hearing (See Appendia G: ONS 168,810)
required analysis of constitutional autho~
rities, Papadopoulos,eupra, 14 OrApp 130 at
156. It coneluded that petitioner's right
to a contested case stemmed from the US
Conatitution's 1l4th Amendment, It interpre-
ted this Court's recent decisions in
Board of Regente v. Roth, 408 US 564 (1972)
and Perry v. Stndermann, 406 US 593 (1972)
as requiring public employe tenure rights
arising solely from statutes or from regu-
lations adopted pursuant to a statutory
grant of authority to be protected by the
14th Amendment's Due Process Clause, It
stated:
*"* * * Te ie these tenure rights
based on statute or regulation that
create property interests that cannot
be withdrawn without a due process
hearing. Employment contracts of
public employes may create rights
to continued employment over and above
that provided by statute or regulation,
But such an employment contract,
atanding alone, does not create the
kind of interest that triggers the
requirement of a due process hearing
before the government withdraws the
benefits of the contract, 1.e., breaches
it. In such a situation,the public
employe's remedies are measured by
the law of contracts, not by consti-~-
tutional law. "“ ere ene ne
14 OrApp 130 at 169,
14
The Court of Appeals ruled that peti-
tioner's right to a contested cave hearing
derived solely from the fact that he had —
been given insufficient notice of termina-
tion under the Board's regulations, and
that those regulations created a right to
one more year of employment, in the elroum-
stances, a right which could not be breached
without the hearing required by the 14th
Amendment; such oe wae required by
the Oregon Administrative Procedures Act to
be a 7 ee with the provisions
0 at Act, apadopouloa supra 40
App 130 at 176-197, hinte'se g
The Court of Appeals ruled, final)
that petitioner's June,1970, alecharge
was in violation of his right under the
US Constitution to a hearing before being
deprived of a property Interest in conti-
nued employment until June 1971, and in
violation of his statutory right to a
contented case hearing conducted in
accordance with the provisions of the
Oregon Administrative Procedures Act.
Papadopoulos, supra, 14 OrApp 130 at 177,
The Court of Appeals declared that the
issue of remedy had not been briefed, and *
remanded the matter to the cireuit court
for exploration and the et of evidence
on the remedy insue. Papadopouloa, aupra,
14 OrApp 130 at 178,
To the extent that the cireult court had
affirmed petitioner's discharge effective
June 1970, that determination was reversed
and remanded for further proceedings on
petitioner's damages. In all other respects
the circuit court's decisaton was affirmed,
Papadopoulos ,eupra, 14 OrApp 130 at 179,
15
*.
The proceeding on remand is pending, (R, 168)
The district court proceeding
By his complaint filed in the district
court petitioner placed in issue multiple
claims, He placed in iesue the question
of the juriediction of the gtate courte
to have decided,at any prior stage of
the pending pooseas issues not required
to have been decided in the determination
of hia right to a contested case hearing
prior to discharge from employment, He
also placed in itasue hie claim to an emp-
loyment contract based on negotiation and
agreement reached with an authorised agent
of the Board of Higher Education and of
Oregon State University, on consideration
given and received, and on ratification,
such a contract being alleged to be a
contract for continuing roe breached
partially with each annual failure of the
university to recommend and of the Board
to effect the placing of petitioner on the
payroll for the subsequent year in the m
manner apecified by regulations,
lie joined in his allegations claims that
various parties had joined in a yy te
by which he had been injured, and by whic
he alleged that he had been damaged in his
Civil Rights; he claimed the conspiracy to
be continuing, an possibly multiple, he
enunerated a series of overt acts in further
ance of the conspiracies alleged, each act
mentioned being itself tortious, and he
claimed of some of those torious acts that
they were of a continuing nature or that
they were of a kind capable of causing
petitioner further and future damage, (R,67-90)
ind
16
He served his summons and his complaint
on multiple parties, both individually and
in their past or present capacities as
members, agents or employes of the Board
of Higher Education or of Oregon State
University. (R.67-73)
The respondents answered by their motion
to dismiss or for summary judgment. (R.50-
53). They filed no affidavits or other
authenticated material in support of their
summary judgment motion. They entered
exhibits on their face extracted from the
record of prior court proceedings between
petitioner and one of the respondents;
petitioner admitted to the authenticity
of a judgment entered in Marion County
Circuit Court on February 15, 1972,
of the petition on which that judgment
was issued, and of the Oregon Court of.
Appeals opinion published as Papadopoulos
v. Bd.of Higher Education,14 OrApp 130,
511 P2d 854 (1973).
By their memorandum, the respondents
cated that their summary judgment
Claim rested on:
(1) The statute of limitations
applicable in Oregon to civil
rights claims; (R.56)
(2) The doctrines of res judicata
and of election of remedies; (R.59)
(3) The immunity from suit of certain
respondents;
and on nothing else.
The district court found that the peti-
tioner was reasserting issues "already
determined or issues (which should have
been) raised in (petitioner's) prior
17
administrative or judicial hearings"
(R.192) The district court did not
decide the other issues raised. Id. See
Appendix C, infra, p. 31.
REASONS FOR GRANT OF WRIT
A. The Congress, having created the
district courts under the authority of
Article III of the United States Cons-
titution, supra p.6, has ordained that
the district courts give full faith and
credit to records and proceedings of
the courts of any State. 28 USC $1738,
supra p.4. The court of appeals below
has recognised this principle to be one
requiring the district courts to apply
to the record and proceedings of a
State court the preclusive effect
ordained, under the res judicata rule,
by the law and usage of the courts of
that State. Neale v. Goldberg, 525
F2d 332 (CA 9, 1975), also 1B J.Moore:
Federal Practice, 70.406(1) and at
p.901 n.2. The district court failed
or refused to apply this pesnatpse
in this case.
It appeared on the face of the district
court record that one, and only one, of
the respondents was party to a State
proceeding brought by the petitioner
in the circuit court of Marion County,
Oregon. It appeared, further, that there
had been entered a judgment, and that
upon appeal that judgment had been
affirmed in part, and in part reversed
and remanded for further proceedings
18
limited to exploration and the taking of
evidence on petitioner's entitlement to
damages. Papadopouloe v. Bd. of Higher
Education, 14 OrApp 130, 178, 511 g2a
854 (1973) See Appendix E, infra, p. 89,
Petitioner had been declared entitled
to damages because as a public employe
of the Board of Higher Education, he had
been discharged in a manner that violated
his right to a pre-discharge hearing.
Papadopoulos,supra at p.177.
It also appeared of record that the
proceeding on remand was pending.
Far from giving full faith and credit
to that proceeding, the district court
entered a judgment which is in serious
conflict with Oregon law and the usage
of the Oregon courts in the application
of the rule of res judicata. Oregon
statutes, ORS 43.140 to 43.160,43.110
and 43.220, set the background to the
application of that rule. See Appendix
G e Pp. 96-97.
Of the res judicata rule the Oregon
Supreme Court has stated:
" The law is well established that
a final judgment rendered by a court
of competent jurisdiction, on the
merits, is conclusive as to the
rights of the parties and their
privies, and as to them constitutes
an absolute bar to a subsequent
action involving the same claim,
demand and cause of action. * * *
To give such effect, there must not
only be identity of subject matter,
but also of cause of action, * * *.
19
" But if the subsequent proceeding be
between the same parties, or their
privies, and is based upon the same
claim or cause of suit as that in the
prior case, the judgment in the first
suit is not only a bar as to all mat-
ters actually determined therein, but
also as to every other matter which
the parties might have litigated and
had decided as incident to or essen-
tially connected therewith, * * *.
Wagner v. Savage, 195 Or 128, 244 P2d
161,169 (1952).
See also Western Baptist Home Mission
Bd. v. Griggs, 248 Or 204, 433 P2d 252
(1967). That both Wagner and Western
Baptist were overruled, and the definition
of res judicata broadened in Dean v. Exotte
Veneers, 271 Or 188, 531 P2d 266 (1975),
serves to show the way in which the res
judieata rule was intended to be applied
to judicial orders and proceedings had
before 1975. The tests adopted in Dean
were expressly stated to be prospective
in their application. Waxwing Cedar Prod-
ucts v. Koennecke, 278 Or 603,611, 564
P2d 1061 (1977).
It appeared on the face of the record
before the district court that the parties
to the State proceeding were not identical
with the parties before the district court.
But nothing was placed in the record to
indicate that the respondents not named
as parties to the prior State proceeding
were, in all their capacities, privies
of the Board of Higher Education, and
therefore bound by the prior determinations.
The quertion of privity was a genuine fact
issue not resolved by the district court.
RN
20
Cf. Jones v. Flannigan, 270 Or 121,526
P2d 543,545 (1974).
It is with the question of "finality"
that there appears a serious conflict bet-
ween the district court and Oregon's law
= usage. The Oregon Supreme Court holds
that:
"* * * both the rule of “law of the
case" and that of res judicata are
applicable only to "an adjudication
of issues which have culminated in
a final decree", and "one embracing
all issues", rather than to a ruling
"upon a segment of the whole case."
RLK v. Tax Commission, 249 Or 603,
608-609, 438 P2d 985,987 (1968)
Huszar v. Certified Realty, 272 Or 517,
538 P2d 57 (1975). |
In this case, the district court
had before it the following language:
"* * * Therefore, upon remand
the circuit court will explore
and, if necessary, hear evidence
upon the remedy issue. * * *,"
Papadopoulos v. Bd. of Higher Ed., 14 Or
App, 130, 178, 511 P2d 854 (1973). See
Appendix E,infra, p.89. Had the circuit
court reached precisely the same deter-
mination without the involvement of
an appellate court, i.e. if it had deter-
mined the Board of Higher Education to
be liable to petitioner because of his
discharge in a manner violative of his
right to a pretermination hearing,
Papadopoulos, at p.177, see Appendix E
infra, p. 88 , such determination of
liability would not have been final
Ce
Zi
under Oregon's law and usage because the
remedy issue remained for determination.
In Oregon, “finality” for res judicata
purposes is the same as “finality” for
the purposes of appeal. See ORS 43.110,
Appendix G, infra, p.96 . The Oregon
court is consistent in its definition
of "finality". See Winters v. Grimes,
124 Or 214, 264 P 359 (1928); Coldwon
v. McKenzie, 260 Or 237, 490 P2d 971
(197i).
B. Whether the prior State proceeding
has reached finality or not, and whether
res judicata principles can be applied
to that proceeding or not, it remains
that the district court has departed
from the accepted and usual course of
judicial proceedings by its failure or
refusal to exercise jurisdiction over
certain issues.
The Congress having created the
district courts has ordained that they
exercise original jurisdiction in speci-
fic situations. The court of appeals
below has recognised that when a dis-
trict court is properly appealed to
in a case over which it is granted
jurisdiction by law, it may not refuse
to exercise that jurisdiction. Mach-
Tronics v. Zirpolt, 316 F2d 820,824
(CA 9.1963); McClellan v. Carland, 217
US 268 (1910); Meredith v. City of Winter
Haven, 302 US 228 (1943).
Petitioner invoked the district court's
jurisdiction under provision of 28 USC
§§1331,1332 and 1343. See supra p.8 (R.68)
He was enabled by federal statute to
22
allege his common law claims as well as
his civil rights claims and his claims
arising under the US Constitution
subject only the the requirement that
he allege a sufficient amount in contro-
versy.
By his complaint, and during the course
of the proceedings below, petition gave
fair notice of his claims and the grounds
on which they rest; he included his claims
under the 1871 Civil Rights Act and under
the Constitution of the United States
with his claims of a continuing breach of
a valid contract, and to continuing torts
on the part of individual respondents.
He alleged a lack of jurisdiction in the
State court over the matters raised by
his complaint before the district court,
and he claimed damages for the violation
of his right to a pretermination hearing
as well as for other injuries. (R. 67-90)
The district court failed or refused
to exercise jurisdiction over the following
issues:
(a) The issue of the Jeriediction
enjoyed by the circuit court of
Marion County. Under Oregon law
a void judgment can be attacked
in any court otherwise possessed
of jurisdiction. Hughes v. Aetna
Casualty Co.,234 Or 426, 383 P2d
55 (1963). The district court
clearly enjoyed concurrent juris-
diction with the circuit court
over that question.
(b) The issue of remedy placed before
the circuit court on remand. Until
or unless that damages issue is de-
termined in the State court, and
43
a final judgment entered in that pro-
ceeding on the assumption that jurisdic~
tion exists, petitioner is free to place
the identical issue before the district
court, and that court may not refuse to
exercise its authority. The fact of con-
current in pereonam jurisdiction over
the identical claim is no bar, Princesse
Lida v. Thomaon, 305 US 456,466 (1939)
(c) Claims which could not have been
oined in the State proceeding. Peti-
ioner initiated the proceeding in
the State courts by the filing and
service of a petition. By his
"2nd Amended Petition" (R.136) petitio-
ner invoked the State court's jurisdic-
tion for review of an administrative
decision pursuant to ORS 183,480. By
that petition, the proceeding initiated
may have been a special statutory pro-
ceeding or it may have been a seit. if
the former, the court was limited to
the exercise of the limited jurisdic-
tion allotted to it under ORS 183,480
and 183,490, see Appendia G, pp. 93,
and petitioner was precluded both
from joining parties other than ageneies
as respondents therein, see ORS 183,3810(1),
Appendia @G, p.92 , and from having any
issue heard except as permitted under
ORS 183,480 and 183.490. If his petition
met the definition of a complaint ,see
ORS 16.210, Appendia G, infra p. 95 ,
and the proceeding was a suit, petitioner
could not join.a cause of suit for contract
with any other cause of suit, and he
also could not join in that suit parties
and claims affecting less than all par-
ties. See ORS 16,230(28), Appendia G, infra
p. 96 ,. Petitioner did not present the
r. aiee
24
contract issue by his petition to the
State court. He could not be barred
from presenting the contract issue in
a second proceeding, Mayer v. lat Nat-
tonal Rank, 260 Or 119, 489 P2d 385
(1973). He presented his claim, timely,
of hie entitlement to a pre-discharge
hearing in the form of a contested
caee; he waived no right thereby
to bring a contract claim in a subseq-
vent proceeding brought after his
discharge from employment. The two
remedies did not co-exist; under Oregon's
law, petitioner was not required to elect
between them, McAllieter v. let Mortgage
Ine. ,279 Or 279, 547 P2d 539 (1977).
The district court could not refuse to
hear petitioner's contract claim; it had
not been presented in the State court
and it was not required to be presented.
(d) Cla!
determination. n any case n
Court of Appeals was express in ommitting
any possible contract claim from its
determination, It had ruled that peti-
oner's right to a pre-discharge hearing
was the dispositive issue, Papadopoulos
v. Bd. of Higher Bd., 14 OrApp 130,135,
S511 P2d 854 41973), eee Appendia £,infra,
p. 40, and that an employment contract
creating a right to continued employment
beyond any such right created under sta-~
tute or administrative regulation could
not, standing alone, create a right to
a pre-discharge hearing. Papadopoulos,
at p.168, Appendia & at p.78 . The
existence of a valid contract of emp~-
loyment was irrelevant to the determi-
nation of the isaue declared to be dis-
positive of the prior State case. Under
25
(R.81); the district court could not
refuse to exercise its jurisdiction
over that claim,
(e) Claima which had not accrued at
the time of prior Iftigatlon. Peti-
tioner saserted the sxtetance of
a conspiracy or conspiracies; while
he alleged facts sufficient to state
a cause of action under the 1871
Civil Rights Act, he also alleged
the less restrictive facts stating
a cause of action based on common
law conspiracy. (R.74-89) He alleged
a course of action on the part of
respondents, that it was wrongful,
that it was continuing, that it
had damaged him and would continue
to damage him in the future, He
alleged the existence of past
actions by the respondents to his
damage, and he claimed the possible
existence of future acts and of
future potential for injury to
him, This Court's reasoning in
Lawlor v, Nat.Sereen Service, 349
US 322,328(1954)) Zenith Radio v,
Haneltine, 401 US 321, 91 SCt 795,
806 (1971) was stated in reference
to alleged conspiracy to violate
federal ant-trust laws, In so far
as that reasoning refers to the
inapplicability of rea judicata
principles to causes of action
which had not accrued at the time
of previous Litigation, those
decisions apply here. The district
court could not refuse to exercise
jurisdiction over causes which had
not accrued during the — stages
of petitioner's State tigation,
26
at 328. Any other result would confer a
partial immunity from civil Liability on
the respondents, a result not consistent
with the purpose of the ree judicata
rule. Nor could the district court refuse
to exercise jurisdiction over any dama-
ges claim for which the cause of action
accrued only after the date of prior
judgment even though such damages might
result from a wrongful course of action
initiated long ago. Cf. Zenith at 339;
Poster Exohange v Nat. Sereen Service
Sa F2d 662,666-7 (CA 5, 1972)
Such damages accrue the moment they
can be proved with the requisit certainty.
The district court could not refuse to
exercise jurisdiction over causes of
action which had not accrued during
iter stages of petitioner's State
itigation,
Having failed or refused to hear petitioner
on his multiple claims which could not anda
should not have been barred under proper
application of Oregon's ree judicata ia.
the district court's January 5, 1976,
judgment will have the effect of barring
petitioner from reasserting all claims
mentioned in his complaint which accrued
before that date,
In 1970 petitioner was threatened with
discharge from his loyment. He initia-
ted his State litigation with a valid claim
of entitlement to a pre-discharge hearing;
he asserted none of his common law righte
of action at that time. The district
court court, and with it the court of
appeals, has acted to foreclose petitioner
from exercising his right to vindicate his
right to a valid, ore-existing contract,
27
and in a manner foreclosed by the Fifth
Anendment's Due Process Clause, supra,p.7,
hth v. Blliet,17 SCt 041,844, 167 US 409
(1897).
Professor Moore states that the due pro-
cess clause of the Fifth Amendment acts as
a check on federal power to extend the effect
of rea judteata beyond a certain point, 1B
/.Moore,Fedral Praatice,10,406(2), 905 at
"4.10,906 at n.ll. That certain point has
been exceeded in this case to the point
of extinguishing petitioner's claims
which petitioner could not have raised
in an unfinished and, as alleged by petitio-
ner, &@ partially invalid State proceeding.
It goes without further argument that ree
Judicata is inapplicable, hence that summary
judgment and the consequent judgment were
invalidly granted in favor of the respondents,
and invalidly affirmed by the court of appeals,
The court of appeals having sanctioned
the decision of the district court to extend
the application of ree judicata beyond the
accepted pojnt, to fail to give full faith
and credit to Oregon proceedings, and to
fail to exercise its jurisdiction as ordained
by the Congress, this Court's powers of super-
Vision are hereby invoked by petitioner,
CONCLUSION
For the reasons stated, this petition for
a writ of certiorari should be granted,
Respectfully submitted,
Michael Papadopoulos Ph.D,
Acting pro se
5370 NW Lawrence Ave
Corvallis, OR 97330
(503) -753-3138
28
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL PAPADOPOULOS ,Ph.D.,
Plaintiff-Appellant, No.
)
)
ve. wise
OREGON STATE UNIVERSITY,et al.,)
Defendants-Appellees. _)MEMORANDUM
(August 18, 1977)
Appeal from the United States District
Court for the District of Oregon
Before :WRIGHT and KILKENNY ,Circuit Judges,
and HARRIS,Senior District Judge.
Papadopoulos claims a denial of due
process in the University's decision not
to retain him as a professor of mathe~
matics at the expiration of his three-
year contract. He also alleges that non-.
retention was not based on his academic
performance but rather was retaliation
for his exercise of free speech. The
district court granted summary judgment
for the defendants, holding that the
action was barred by subject preclusion.
We agree.
The Oregon Courts and administrative
bodies already have adjudicated the rights
of the parties. The Court of 5 up-
held the Board of Higher Education's
affirmance of the University's decision
29
not to grant tenure and ite finding of
no civil rights violation,
The Court of Appeals, however, also
held that Papadopoulos had not received
a timely notice of termination and
remanded the case to the Marion County
Cireuit Court for proceedings to assess
damages. Papadopoulos v. Bd.of Higher Ed.
14 OrApp 130, , e
Oregon Supreme Court denied review and
the United States Supreme Court denied a
writ of certiorari. 417 US 919 (1974).
It is clear that Papadopoulos has had
a full pee to litigate his griev~
ance. He is entitled to no more. Scoggin
v. Sehrunk, 522 F2d 436,437 (9th r.
1975) ,cert.denied, 423 US 1066 (1976).
AFFIRMED
30
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL PAPADOPOULOS, Ph.D., ) No.
Plaintiff-Appellant, ) 76-2146
-
OREGON STATE UNIVERSITY,et al.,) ORDER
)
Defendants-Appellees.
Before: WRIGHT and KILKENNY, Circuit
Judges, and HARRIS,Senior District
Judge.
The panel as constituted in the above
case has voted to deny the petition for
rehearing. Judge Wright voted to reject
the en banc suggestion.
The full court has been advised of the
suggestion for a rehearing en banc, and
no judge of the court has requested a vote
on it. Fed.R.App.P. 35(b).
The petition for rehearing is denied
and the suggestion for a rehearing en
banc is rejected.
DATED: September 29, 1977.
ENTERED on September 29, 1977.
31
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL PAPADOPOULOS,
Plaintiff, No,
wn. 75-497
OREGON STATE UNIVERSITY ;OREGON
STATE BOARD OF HIGHER EDUCATION;
RAY T.YASUI,JANE CARPENTER , GEORGE OPINION
)
)
)
)
)
)
H.COREY ,ROBERT D.HOLMES , ELIZABETH ;
H.JOHNSON ,PHILIP A.JOSS,GEORGE H. )
LAYMAN ,VALERIE McINTYRE, W.PHILIP )
McLAURIN,MARC F.MADEN, JOHN D. )
MOSSER, ANCIL H. PAYNE, LOUIS B. )
PERRY, JOHN W. SNIDER, LORAN L. )
STEWART and E.G. WESTERDAHL II, )
tn their individual capacities )
and in their capacities as members )
or as ex-members of the Oregon )
State Board of Higher Education; )
ROY E.LIEUALLEN, in his individual)
capacity and in his official )
capacity as Chancellor of the )
Oregon State Board of Higher )
Education; ROBERT W.MACVICAR,in )
his individual capacity and in )
his official capacity as President)
of Oregon State University;ROY A. )
YOUNG and JAMES H.JENSEN,tn their )
individual capacities and in their)
capactties as ex-presidents of )
Oregon State University;and DAVID )
B. NICODEMUS, in his individual )
capacity and in his official )
capactty as Dean of Faculty of )
Oregon State University, )
)
)
Defendants.
32
Michael Papadopoulos,pro se, 5370 NW
Lawrence Ave.,Corvallis, OR 97330.
Lee Johnson ,Attorney General of Oregon,
John Leahy,Assistant Attorney General,
100 State Office Building, Salem OR 97310.
Tim D.Norwood,Asst. Attorney General,
555 State Office Building,Portland,Oregon
97201, attorneys for defendants.
SKOPIL, Judge:
INTRODUCTION
The plaintiff,Michael Papadopoulos,
claims that the failure of the defendants,
Oregon State University,Oregon State Board
of Higher Education, certain members and
ex-members of the Oregon State Board of
Higher Education, Roy E.Lieuallen,Robert
W.MacVicar,Roy A.Young,James H.Jensen,and
David B. Nicodemus, to review (sic) his
teaching contract or to grant him tenure
denied him certain constitutional rights.
Plaintiff claims that the defendants
Nicodemus ,Jensen,Young ,MacVicar,Lieuallen,
Corey ,Holmes ,Johnson ,Joss,Layman ,Mosser,
Snider ,Stewart, Westerdahl and others
conspired to deny plaintiff equal protec-
tion of the laws or equal privileges and
immunities under the laws. He contends
that these defendants discriminated
against him because of his membership and
participation in pacifist activities, the
anti-war movement, and movements opposing
racial inequality.
33
As to the other defendants, plaintiff
contends that their actions deprived him
of his rights of due process, equal priv-
iledges and immunities, and that their
action was in retaliation for plaintiff's
exercise of his right to freedom of speech.
A motion to dismiss or,in the alterna-
tive, for summary judgment was filed on
behalf of all defendants. It alleges that
the action is barred by the applicable
statute of limitations, that the defend-
ants are not persons subject to suit
under the Civil Rights Act, that the
defendants are immune from suit pursuant
to the llth Amendment, and that the plain-
tiff is barred by res judicata - colla-
teral estoppel.
Jurisdiction is based on 28 USC §§
13351, 1332(2) (sie), and 1343.
FACTS
The plaintiff had been employed as a
math professor at Oregon State University.
His contract expired in March (sie) of
1970. In early 1970 he was informed that
when his contract expired,he would not
be granted tenure at Oregon State Univer-
sity. He appealed that decision to the
Board of Higher Education.In his appeal
he asserted that Oregon State failed to
employ proper procedures in its action
against him. The Board's Academic Affairs
Committee heard the appeal. The committee
concluded that proper procedures had been
followed. The Board of Higher Education
adopted the committee's findings.
34
PRIOR COURT ACTION
The plaintiff sought review of the pro-
ceedings in the state circuit court. The
state court found that the Board of Higher
Education was subject to the Oregon Admin-
istrative Procedure Act, ORS Ch.183. The
court decreed that the Board's inquiry
should not be limited to purely procedural
matters. The Board was directed to conduct
a hearing on plaintiff's termination. In
compliance with the court's order, the
Board made the following findings and
conclusion:
"1) That the procedure followed by the
Oregon State University administra-
tion concerning the non-renewal of
the appointi:ent of Dr. Papadopoulos
and concerning the denial of tenure
to him complied with procedural due
process in all respects.
""\ That there was substantial evidence
to justify the finding by the admin-
istration at Oregon State University
that Dr. Papadopoulos did not comply
with the standards of Oregon State
University School of Science for
production of scholarly research.
"3) That the administration at Oregon
State University did not base its
decision to deny Dr. Papadopoulos
indefinite tenure and a renewal of
his academic appointment on any
conduct protected by the constitu-
tion and laws of the United States
of America and the State of Oregon.
32
“and conclusion
"That the decisions of Oregon
State University not to grant indef-
inite tenure to Dr. Papadopoulos and
not to renew his academic appointment
are affirmed."
Plaintiff challenged the decision
(Oregon Administrative Procedure Act,
ORS Ch. 183) He claimed:
"(a) That the decision not to renew
petitioner's contract was either arbit-
rary Or made for the purpose of retaliat-
ing against petitioner for the exercise
of his constitutionally protected rights
of free speech as stated in paragraph
II of this Second Amended Petition for
Judicial Review.
"(b) That the Board failed and
refused to review the criteria employed
by Acting President Young in making his
decision against renewal of petitioner's
contract.
"(c) That the Board failed to act
impartially.
"(d) That the Board failed to exer-
cise discretion judiciously.
"“(e) That petitioner was denied a
hearing on the reasons for non-renewal
of his contract.
"(f£) That the Board did not comply
with the procedural requirements of Chap-
ter 183 of Oregon Revised Statutes,as
specified in paragraph VII of this
Second Amended Petition for Judicial
Review.
36
"(q) That petitioner was not given
timely notice of termination of his
employment." Defendants’ Exhibit No.5.
The Board's decision was affirmed.
Circuit Judge Val D.Sloper concluded:
"1. There was no denial of due process
concerning the non-renewal of the appoint-
ment of the Plaintiff, and denial of
tenure to him, and
"2. The action of Oregon State Univer-
sity in refusing to renew the Plaintiff's
contract and denying him tenure was based
on his academic record, and not on consti-
tutionally permissible conduct.”
Defendants' Exhibit No. l.
Plaintiff then appealed to the Oregon
Court of Appeals. It affirmed except on
the issue of notice to the plaintiff prior
to his termination. The Court of Appeals
remanded the case to determine to what
damages plaintiff was entitled because of
improper notice of termination. Thereafter
plaintiff filed a petition for rehearing
before the Oregon Court of Appeals, a
petition for review by the Oregon Supreme
Court, and a petition for certiorari to
the United States Supreme Court, all of
which were denied.
CONCLUSION
Plaintiff now seeks to relitigate his
case in the federal court. He reasserts
issues already determined or issues he
should have raised in his administrative
37
or judicial hearings. This he cannot do.
Angel v. Bullington, 330 US 183 (1947);
Scoggin v. Schrunk, 522 F2d 436 (9th Cir.
1975); Hutcherson v. Lehtin, 485 F2d
567 (9th Cir. 1973); Francisco Enterprises
v. Kirby, 482 F2d 481 (9th Cir. 1973)
All cases must have an ending. Plaintiff
has already had his day in court. Res
judicata - collateral estoppel is applic-
able. I need not consider the other issues
raised
Defendants' motion for summary judgment
is granted.
Dated this 30th day of December, 1975.
/s/ Otto K.Skopil
United States District
Judge.
Entered on January 5, 1976.
38
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL PAPADOPOULOS,
)
Plaintiff, ) Civil No.
“<. ; 75-497
OREGON STATE UNIVERSITY, ) SUMMARY
et al., ) JUDGMENT
)
Defendants.
Based on the opinion granting
defendants’ motion tor summary judgment,
IT IS ORDERED AND ADJUDGED that the
action is dismissed.
Dated: January 5, 1976.
/s/ Robert M. Christ
Clerk of Court
Entered on January 5, 1976.
~—aw*
39
APPENDIX E
No. 1747—June 27, 1973
IN THE COURT OF APPEALS OF THE STATE
OF OREGON
( 14 OrApp 130, 511 P2da 854 )
PAPADOPOULOS, Appellant-Cross-Respondent, v.
OREGON STATE BOARD OF HIGHER
EDUCATION, Respondent-Cross-Appellant.
Appeal from Circuit Court, Marion County.
VAL D. SLoper, Judge.
Submited on record and briefs March 5, 1973.
Michael Papadopoulos, Corvallis, pro se, for ap-
pellant-cross-respondent.
Lee Johnson, Attorney General, John W. Osburn,
Solicitor General, and Al J. Laue, Assistant Attorney
General, Salem, for respondent-cross-appellant.
Herbert W. Titus, Cooperating Attorney, Eugene,
American Civil Liberties Union of Oregon, Inc., ami-
cus cvriae.
Hans A. Linde, Eugene, Interinstitutional Faculty
Senate, Oregon State System of Higher Education,
amicus curiae.
Donald W. Brodie, Cooperating Attorney, Eugene,
and Stephen R. Goldstein, Philadelphia, Pennsylvania,
for American Association of University Professors,
amicus curiae.
Before ScHWAB, Chief Judge, and FOLEY and
Fort, Judges.
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.
SCHWAB, C. J.
l’etitioner was employed as a Professor of Math-
ematics at Oregon State University from September
40
1967 to June 1970. In 1969 the respondent State Board
of Higher Education or its subordinate officials at
Oregon State decided to deny petitioner tenure and
to terminate his employment. By way of this judicial
review proceeding pursuant to the Administrative
Procedures Act, ORS ch 183, petitioner challenges
those decisions. The circuit court upheld the Board
and both petitioner and the Board appeal.
Literally dozens of issues have been briefed at
length by petitioner and three amici supporting his
position. The issues all relate to the substantive and
procedural statutory and constitutional rights of
public employes. For example, petitioner contends
he was discharged because he engaged in First Amend-
ment-protected activity or, alternatively, that his dis-
charge was arbitrary; that he was entitled to a pre-
termination hearing on the reasons for his discharge;
that the hearing he was accorded by the Board by
order of the circuit court did not comply with the
Administrative Procedures Act; and that the Board’s
discharge decision is not supported by substantial evi-
dence. The Board, by its cross-appeal, contends the
circuit court erred in ordering that petitioner be ac-
corded a hearing on the reasons for his discharge. In
our view the dispositive issue is whether petitioner
was entitled to a hearing before being discharged
effective June 1970.'
' Schlichting v. Bergstrom, 97 Adv Sh 717, -- Or App —,
— P2d — (1973) involves related issues.
41
I
This record reveals, at the least, confusion on the
part of the State Board of Higher Education and its
subordinate officials at Oregon State University. To
document this observation, we set out the facts in
detail.
One source of confusion is the Board’s regula-
tions. See, Parts II and IV, infra. These regulations
provide that academic personnel, like petitioner, are
employed with “yearly tenure” or “indefinite tenure.”
For the three years petitioner taught at Oregon State,
he had only yearly tenure.
Petitioner assumed his duties as a Professor of
Mathematics in the Department of Mathematics of
the School of Science at Oregon State in the late sum-
mer of 1967. When he was offered this position by the
Chairman of the Mathematics Department, before ac-
cepting it, petitioner inquired about the Oregon State
tenure system. This was of some significance to peti-
tioner, since another university had offered him a pro-
fessorship with immediate tenure. The Chairman ad-
vised petitioner that under the Board’s regulations
it was not possible to be granted what those regula-
tions term indefinite tenure when first hired. How-
ever, at the administrative hearing in this case several
professors testified that they had been granted in-
definite tenure at Oregon State when first hired.
In any event, coorrectly or incorrectly petitioner
was informed it was not possible that he be granted
indefinite tenure immeditately. The Chairman did at
42
least imply, and petitioner was led to believe, that the
granting of indefinite tenure would be little more than
a formality in his case.
Relying in part on these representations, and
in part on the intent of the Mathematics Department
to expand its programs in applied mathematics—peti-
tioner’s area of specialization—petitioner turned down
other job prospects and accepted the offer from Ore-
gon State. In fact, during the conversations that
culminated in his employment at Oregon State, it was
agreed that petitioner would devote a substantial
amount of time to building the Department’s applied
mathematics curriculum. All indications are that peti-
tioner diligently and effectively did so.
In December of 1968, after petitioner had been
at Oregon State about 1% years, the Mathematics De-
partment began processing a recommendation that
petitioner be granted indefinite tenure. A four-mem-
ber departmental committee unanimously recommend-
ed indefinite tenure for petitioner. The tenured fac-
ulty of the Department voted 20-1 in favor of indef-
inite tenure for petitioner. The Chairmarn of the De-
partment added his own personal favorable. recom-
mendation.
The material generated in the Mathematics De-
partment passed up the chain of command to John
Ward, Dean of the School of Science. There had been
previous instances in which Dean Ward displayed
some displeasure toward petitioner. Between 1967-68,
petitioner’s first year at Oregon State, and 1968-69
most faculty members in the Mathematics Department
43
received at least cost-of-living salary raises; through
Dean Ward's efforts, petitioner did not reseive any
salary increase. Also, witnesses at the administrative
hearing attributed to Dean Ward some highly de-
famatory statements about petitioner.?
Dean Ward consulted with his informal six-
member Advisory Committee on all recommendations
for indefinite tenure. When petitioner’s case was dis-
cussed, some question was raised about petitioner’s
progress on a monograph he was writing. Dean
Ward then asked the Chairman of the Mathematics
Department for an answer to this question. The Chair-
man responded by letter:
* * Professor Papadopoulos is working on
a research monograph on the topic of the theory of
distributions as it pertains to the study of hyper-
bolic partial differential equations with particular
applications to diffraction problems. I know
enough of this topic to recognize that this would
fill a significant gap in research literature. I have
heard Professor Papadopoulos deliver a one-hour
colloquium on some aspects of these questions; my
impression from his sketch was that he had some
very interesting contributions completed and also
there remained much work to be done before he
could achieve the degree of completeness demand-
ed by a monograph. He estimates that he has
about % of a completed first draft and, of course
notes and sketches of later parts.”
Dean Ward did not tell his Advisory Committee of this
letter; instead, purporting to be passing on an oral
2 Dean Ward, who has left O
administrative hearing. Nor did nyt na ays AA oo
tories sent him by both petitioner and the Boned. :
44
report, Dean Ward told the Committee there was no
evidence that petitioner was making significant pro-
gress on his monograph. Also, Dean Ward told the
Committee he had informally asked unidentified deans
at other unspecified universities whether they would
hire petitioner, and their answers were all in the nega-
tive. Not surprisingly, based on the information Dean
Ward had furnished them, the Advisory Committee
unanimously voted against recommending indefinite
tenure for petitioner. The Committee was not asked
to express any view on retention or non-retention of
petitioner on an annual basis, and did not do so.
On February 25, 1969, Dean Ward then sent a let-
ter to petitioner that stated:
“As you have been aware, the Department of
Mathematics, and especially the faculty of the De-
partment, have undergone intensive evaluation
and review by an outside evaluation committee
and internal committees. After many hours of
discussion and evaluation of the recommendations
of all groups concerned, I have had to make sev-
eral decisions concerning recommendations for in-
definite tenure for non-tenured faculty members
as well as informing faculty members not neces-
sarily considered for tenure that they will not be
reappointed to their positions * alien
«* * * In your particular situation, you will
not be recommended by this office to the Dean
of Faculty for reappointment to the faculty of the
Department of Mathemaicts after the academic
year 1969-70.”
In so far as it discloses a reason for his decision, Dean
Ward’s letter implies that petitioner’s contributions
45
to the Department of Mathematics were believed to be
inadequate by various evaluation committees, The only
evaluation reports to which Dean Ward could have
been referring are in the record before us. There is
nothing in those reports that is any way critical of
petitioner.
After receiving Dean Ward’s letter, petitioner
protested to the Faculty Senate Committee on Review
and Appeals that he was being dealt with unfairly.
That Committee considered petitioner’s case along
with two others. The Committee reported :
“teeee
“In the opinion of the members of the Review
and Appeals Committee, faulty judgment was evi-
dent on the part of the previous chairman of the
Department of Mathematics when he implied, dur-
ing appointment negotiations with the appellants,
that the granting of indefinite tenure was a rou-
tine matter and would occur in the natural course
of events even though based upon ‘mutual satis-
faction.’ * * * [S]tatements made to prospective
appointees probably should have spelled out more
carefully the process by which indefinite tenure
was granted and the ultimate responsibility for
such decisions.
“Nevertheless, inquiries made by the Commit-
tee of the appellants and others disclosed that,
while tenure matters were discussed (either or-
ally or in writing), representations of the rou-
tine nature of indefinite tenure recommendations
were such as to lead the appellants to believe that
definite tenure would be granted as a matter of
course. * * * Such implied commitment on the
46
i ly was
art of the department chairman apparently
a unique but, rather, appeared to be the pre-
vailing practice at the time of the appointment
of, or negotiation with, the three appellants.
“By the same token, questionable procedures
were followed by the Dean of Science in reversing
the recommendations of the Department of Mathe-
matics, especially in the instances of Drs.
and Papadopoulos whose recommendations car-
ried nearly unanimous approval, solely on profes-
sional grounds, by the tenured members of the
Department.
“The 1966 Statement on Government of Col-
leges and Universities jointly formulated by the
American Association of University Professors,
the American Council on Education, and the As-
sociation of Governing Boards of Universities and
Colleges, states in part V. The academic institu-
ion: the faculty—
= . vue status and related matters are
primarily a faculty responsibility ; this area
includes appointments, reappointments, not
to reappoint, promotions, the granting of ten-
ure, and dismissal. The primary responsibil-
ity of the faculty for such matters is based
upon the fact that its judgment is central to
general educational policy. Furthermore,
scholars in a particular field or activity have
the chief competence for judging the work of
their colleagues; in such competence it is im-
plicit that responsibility exists for both ad-
verse and favorable judgment. Likewise
there is the more general competence of ex-
perienced faculty personnel committees hav-
ing a broader charge. Determinations in these
47
matters should first be by faculty action
through established procedures, reviewed by
the chief academic officers with the concur-
rence of the board. The governing board and
the president should, on questions of faculty
status as in other matters where the faculty
has primary responsibility, concur with the
faculty judgment except in rare instances
and for compelling reasons which should be
stated in detail.’
“In light of the foregoing statement and as-
suming that the dean of a school falls within the
class of a chief academic officer, statements re-
ceived from members of the Mathematics Depart-
ment indicate that reasons for failure by the
Dean of Science to concur with the departmental
recommendation were not clear other than that
the department of mathematics at certain uni-
dentified universities would not appoint these
persons as full professors to their staffs.
“In addition to the failure of the Dean of
Science to state in detail compelling reasons for
failure to concur woith the judgments of the de-
partmental faculty, it is the opinion of the Com-
mittee that evaluations based upon whether or
not a department at another university, (even if
such were specified) would appoint an individual
at a given rank is at best a questionable practice.
Such practice becomes more suspect when one
does not know the questions asked or the informa-
tion presented in requesting such an evaluation.
In addition, the question arises as to whether the
same or similar standards necessarily apply for
the determination of eligibility for indefinite ten-
ure as those which might be employed in evaluat-
ye. 48
ing an individual for initial appointment. Again,
the validity of the procedure followed is at best
controversial.
“It further appears (but not verified) that
the procedure of requesting an evaluation by the
chairman of department of another university in
terms of qualification for appointment to that
university’s staff was followed only in the three
cases in question and was not a routine step in the
evaluative process carried out by the Dean of
Science’s office. While it may be agreed that the
evaluation of the three cases in question might
present special problems because of the academic
rank involved, the unusualness of the procedure
and the significance placed upon such conclusions
drawn therefrom raises the question as_ to
whether such represents a significant departure
from accepted practice.
“While it can Be taken as a responsibility of
the dean of a school, within the context of the
above statement of primary faculty responsibities,
to attempt to insure excellence of departmental
faculties, it would also follow that in doing so due
regard must be given to the judgments of depart-
mental faculties. In view of the care and thor-
oughness which appear to have been exercised by
the faculty of the Department of Mathematics in
making their evaluations of staff members being
recommended for tenure and that such recom-
mendations represent the opinions of a substan-
tial majority of the departmental tenured faculty,
it would appear that failure by the Dean of Sci-
ence to concur with such recommendations would
necessarily have to be supported by compelling
reasons stated in detail to the tenured depart-
49
mental faculty. In the instances in question, such
detailing of reasons for failure to concur was not
apparent to those members of the Mathematics
Department interviewed in the course of the Com-
mittee’s investigations.
“The Review and Appeals Committee con-
cludes and recommends to the President:
“That Indefinite Tenure be granted to
Dr. Michael Papadopoulos on the basis of:
“1, The near unanimous and positive reeom-
mendation of the tenured members of the
Mathematics Department, based solely on
the professional competency of Dr. Papa-
dopoulos and the failure on the part of
the Dean of Science to state compelling
reasons for lack of concurrence with the
departmental recommendation.
“2. Prior commitment.”
After receiving the above report and recommenda-
50
1969-70 does not involve prejudice or
other violations of your academic freedom.
A request to review the possibility of vio-
lations of academic freedom was implicit
in our charge to the Committee. The Com-
mittee’s report and supplementary letter
support our belief that no violation of
academic freedom occurred and that no
personal prejudice or discrimination was
involved on the part of any individual or
group who participated in the decision.
“2. We believe that the action of the School of
Science, by imposing additional standards
and professional judgments in its review
of your department’s recommendation,
was consistent with sound academic pol-
icy and involved significant and respon-
sible faculty participation in the decision
making process. In conducting its reviews,
the School attempted to apply proper and
uniform criteria to all recommendations
tions, the President of Oregon State, by letter dated t
September 24, 1969, advised petitioner he had reached in an effort to insure fairness and to de-
t decision. This letter stated in part: velop and maintain high academic stand-
pan : ards in all disciplines. Moreover, it is our
“With some regret we must advise you that
we do not support the recommendation of the Re-
view and Appeals Committee that you be granted
indefinite tenure as a Professor of Mathematics
at Oregon State University. The principal rea-
sons for our decision are summarized below:
“1. To the best of our knowledge and under-
standing, the action of the School of Sci-
ence in not recommending the granting of
tenure and in recommending your non-re-
appointment after the academic year
belief that the Dean’s final decision had
the strong support of his faculty Advisory
Committee * * *.?
“3. Based on our review of both the depart-
mental and school recommendations and
also on our own attempt to evaluate your
professional record, the executive office
3 The President's letter did not comment on the criticism
of the Review and Appeals Committee to the effect that Dean
Ward presented to his Advisory Committee inappropriate
information on which to formulate its recommendation.
51
finds no sound academic basis for revers-
ing the recommendation of the School of
Science. Dean Ward has reported the rea-
son for his decision to us, namely, the
judgment that your professional record
failed to demonstrate the degree of schol-
arly performance expected of a full pro-
fessor in the School of Science. We con-
sider this reason to be a proper basis for
the dean’s decision.”
The President’s letter concluded :
«* * * [W]e regard Dean Ward’s letter of
February 25, 1969, to you as a letter of timely
notice of non-reappointment in accordance with
the provisions of Section L-3-F of the Administra-
tive Code of the Oregon State Department of
Higher Education.”
Most prior attention had focused on whether pe-
titioner would be granted indefinite tenure. Under
the relevant regulations, see Part II, infra, it would
have been possible for petitioner to have been denied
indefinite tenure, yet to remain at Oregon State on
annual appointments for up to six years, perhaps be-
ing reconsidered for indefinite tenure at some future
date. The record does not contain any clear explana-
tion of why, in petitioner’s case, the decision to deny
indefinite tenure was coupled with a decision to also
terminate his employment.
The President’s reference to “the degree of schol-
arly performance expected of a full professor” was
the first public reference to petitioner’s termination
being based on not having published a “sufficient”
52
number of research papers. While it is clear this was
a factor in the deliberations of Dean Ward’s Advisory
Committee, for some reason it had not been mentioned
- all ee report of the Faculty Senate Review and
ppea mmittee as being a stated i
tioner’s termination. , ee
Upon learning of the President’s decisi
pressed in his letter of September 24, the Feculty Sen.
ate voted to conduct another, more detailed. investi-
gation. The Faculty Senate created an Ad Hoe Com
mittee consisting of three professors from wutslits
of Oregon.
After spending two da :
ys at Oregon State .
ary of 1970, the Ad Hoe Committee seem —
“* * * Both * * * and Pa °
i padopoulos were, in
- Ps ag of the two mathematician members
4 is committee, well above the average in the
im pe = eg with the most com-
nt members. Hence they ca i
me pas wenn 14 y cannot be considered
“That these appointments should have
fered and accepted without tenure clas _
arate discussion for this was apparently con-
nected with earlier university practice. Although
opinion was not unanimous on this point, it seems
to have been common before 1966 for tenure to be
regarded as a certainty if one were more or less
pulling his own weight in a department. * * *
[B]oth * and Papadopoulos were apparently
peg Ree pean a tenure was nothing to
ut even tho i
ment contained a Foon 7 2 ———
53
“In 1966 with the advent of a new Dean of
Science, Dean Ward, there was a sudden change
in the attitude toward tenure and its granting,
and this leads us into another aspect of the diffi-
culty.
“When Dean Ward assumed his office in the
fall of 1966, he apparently decided that one of his
most important duties was to improve and up-
grade the research quality of the various depart-
ments in the School of Science, and to increase
also the quantity of research. This is, of course,
a laudable goal and the time was possibly appro-
priate for taking some definite steps in this di-
rection * * *,
“An important step [taken by Dean Ward]
was the initiation of Departmental Review Com-
mittees consisting of distinguished men from out-
side the university who were charged with exam-
ining the department in question and making
recommendations for its future development. One
of the first such committees was appointed for the
Mathematics Department. The three members
(none of whom, by the way, were on a list of sug-
gested persons given to the Dean by the Chair-
man) are outstanding mathematicians, spanning
among them a large part of mathematics, and are
also men of good will. Unfortunately, their report
was treated as a confidential report to the Dean
and only portions of it shown to the Department
members or to this committee. Those portions
shown to us as a special privilege did not strike
us as being unsuitable for general distribution.
The parts not shown us contained among other
things a rating of the department members on a
scale of approximately 1 to 5—excellent, very
good, good, fair, poor * * *.
54
“The Dean’s treatment of this document as
confidential has had an unfortunate effect. Per-
haps unintentionally, it has been used as a
weapon. Since no one knows where he stai.ts, it
is easy to imply that he is far down on the iist
and doesn’t really deserve consideration in some
matter or other. Whether such abuse is exagger-
ated or frequent is not the point. The situation
should never arise and all future Visiting Com-
mittees should make their evaluations in terms
which can be available to all. We think this can
be done without precluding quality judgments.
“Another step taken by Dean Ward to improve
quality was to apply more severe criteria for pro-
motion and tenure. The somewhat easy-going atti-
tude toward tenure which prevailed before 1966
was suddenly reversed and each tenure appoint-
ment was carefully scrutinized both by the dean
and by his Advisory Committee. One can hardly
find fault with taking such appointments seri-
ously, but the suddenness of the change of policy
certainly is a factor in the present case * * *.
“Against this background we now consider
in more detail the appointments of * * * and Pa-
padopoulos. As has already been pointed out, they,
together with four other such appointees, came
to OSU knowing that they did not in fact have
tenure but believing that this was an administra-
tive detail which would be taken care of in the
near future, barring some gross neglect of duty
or other malfeasance * * *.
“[When petitioner wast considered for ten-
ure] [a]s is customary in such matters, the chair-
man solicited letters from authorities outside the
university who were likely to be familiar with the
55
work of * * * and Papadopoulos. The outside con-
sultants were well chosen and with one exception
wrote strong ietters of support for promotion to
tenure. The one exception was somewhat luke-
warm, but was clearly not based upon knowledge
of the man’s published papers, but instead upon
general impressions. The proposed promotions to
tenure were supported unanimously in the case
of one of the men and with only one dissenting
vote for the vther by the tenured members of the
department.
“Why, then, were they refused by Dean
Ward? Two reasons were offered: (a) lack of
recent research activity (‘lack of performance’),
and (b) further consultation with mathemati-
cians outside the university * * *.
“Before making this decision Dean Ward vis-
ited the chairmen of three other mathematics de-
partments. He refused to identify them except to
say that they did not include M.I.T. or Berkeley,
a statement we interpret metaphorically to mean
that the universities visited were appropriate ones
for comparison with OSU. The question put to
the department chairmen was, ‘Would you hire
either of these men in your department? It is the
opinion of the Ad Hoc Committee that this ques-
tion, if indeed it was asked, is inappropriate and
that, furthermore, there is considerable impropri-
ety in the whole procedure. First of all, because
it is secret and purely verbal, there is no written
record to which one can turn for verifiable details
as to the »pinions of these department chairmen.
Secondly, a department chairman is not compe-
tent to judge the quality of mathematical research
except in his own field. It would be by the merest
~~
chance that his opinion, if he were willing to give
one, would be as valuable as those of the author-
ities already consulted. One of the chairmen con-
sulted is accidentally known to us; his field of
specialization is different from that of either of
the men under consideration * * *.
“The other criterion was lack of research ac-
tivily ° °°.
“* * * [Petitioner’s] publication record from
1954 to 1963 is outstanding. Following that pe-
riod, there seems to be a gap until 1968 when two
invited papers weer given at a Symposium at In-
diana University. One of these is appearing in the
printed proceedings. We have seen the page proof
and it appears to be a substantial paper. A criti-
cism heard during our conversations at OSU that
this was not a paper in a refereed journal seems
misdirected and, furthermore at misreading of
Papadopoulos’s character. Whatever his faults,
there is no evidence to indicate that he would be
willing to publish pot-boilers. However, this still
leaves a puzzling gap of five years.* This was
partly explained in conversations with Papadop-
oulos. At the beginning of this period he developed
-a new method of treating a certain class of prob-
lems and decided that, instead of publishing it in
a series of papers showing its application to dif-
ferent fields, he would write a monograph devel-
4The Board, in arguing there is substantial evidence to
support the decision to terminate petitioner’s employment,
relies heavily on this reference to a “puzzling gap of five
years” in petitioner’s record of publications. However, we
note that at least three of these five years were before peti-
tioner came to Oregon State, and that at the administrative
hearing the Board stipulated that petitioner was well quali-
fied when hired.
li ee
57
oping the method first and then the applications
in succeeding .chapters. There is no question but
that he is writing the monograph. Various experts
in the field referred to it in their supporting let-
ters. One had a 105-page first draft of a portion
of it, we saw it, and some of the material has
been expounded in lectures at various places. Per-
haps the real question is why has it taken so long
to finish it. There seem to be several reasons,
principally a sticky point in the development
which has held him up, and, since coming to OSU,
time spent in developing new courses. Although
the period of not much visible activity may ap-
pear overlong for one who was so active in re-
search earlier, it is not clear that he has either
run out of steam or lost interest. If forced to.
judge whether his work will progress in a stable
job environment or whether his drive to continue
creative work has been largely lost for good, a
difficult question of judgment, our committee
would find itself split in its feelings, one saying
the drive is inadequate for further productive
work, and two saying it is adequate * * *.”
The Ad Hoc Committee’s report was submitted to
the Faculty Senate. That body then adopted a reso-
lution phrased in terms of the Ad Hoc Committee’s
ultimate conclusion:
“In our opinion the department [of Mathe-
matics] will be in the best position for continued
development of strength if the University accepts
its moral commitment to award tenure in the
cases of M. Papadopoulos and * * *.”,
and requested the President of Oregon State to re-
58
consider his prior decision to the contrary.
By letter dated February 19, 1970, the President
advised petitioner:
“This office has given careful reconsideration
to your tenure case in the light of the Faculty
Senate’s action of February 12, 1970, and of the
ad hoc committee’s report of February 3, 1970.
We must advise you that our decision of Septem-
ber 24, 1969 has not been altered. This decision
is based on our judgment, that the ad hoc com-
mittee’s report concerning the adequacy of per-
formance constitutes additional reasonable doubt
that tenure should be granted.”
The President’s letter did not elaborate on why he
believed a 2-to-1 vote that petitioner was likely to
continue to produce good research and publications
created “reasonable doubt that tenure should be
granted.”
Petitioner then appealed to the Board. In March of
1970 the Board’s Academic Affairs Committee held
a hearing on petitioner’s appeal. The Committee lim-
ited its inquiry to questions of whether proper pro-
cedures had been followed at Oregon State in peti-
tioner’s case. In spite of the explicit statutory author-
ity for the Board to make personnel decisions, ORS
351.070(1)(a),®° the consensus among the Board
5“(1) The State Board of Higher Education may, for
each institution under its control:
“(a) Appoint and employ a president and the r uisite
number of professors, teachers and employes, and pre-
scribe their compensation and tenure of office or employ-
ment.” ORS 351.070(1) (a).
59
members present was that the substantive questions
of whether petitioner should be granted tenure or
terminated were beyond their competence. As the
Committee’s report of that meeting states:
“* * * Mr. Layman expressed the view that
as a matter of principle the board would be in a
difficult position if it undertook to judge matters
of substance relating to an individual’s compe-
tence in an academic field and to substitute its
judgment for that of the the president—assum-
ing their views differed.
“Chancellor Lieuallen pointed out the hazards
of asking the board to rule on matters of sub-
stance in which the president had acted. If the
board were to sustain a faculty member’s appeal
and reverse the president’s decision, what would
keep the board tomorrow from making the deci-
sion to insist upon the employment or the grant-
ing of tenure to someone acceptable to the board
but who might be unacceptable to the president
or to faculty groups.”
The Committee concluded that proper procedures
were followed in petitioner’s case. It so reported to
the Board, which then adopted these conclusions.
Petitioner then initiated this judicial review pro-
ceeding in circuit court. The Board initially contend-
ed it was wholly exempt from the Administrative Pro-
cedures Act. The circuit court ruied to the contrary—
a ruling the Board’s cross-appeal does not assign as
error. Petitioner then called the circuit court’s atten-
tion to: (1) some omissions and possible errors in the
transcript of the hearing before the Board’s Academic
60
Affairs Committee; and (2) the fact that the Com-
mittee had limited its inquiry to purely procedural
matters. Petitioner contended these were grounds for
remanding the case to the Board for the production of
additional evidence. The circuit court agreed and en-
tered the following order on February 11, 1971:
“Application having been made by petitioner
for leave to present additional evidence, and it
having been shown to the satisfaction of the Court
that respondent agency is subject to the Oregon
Administrative Procedures Act, that the addi-
tional evidence is material and that there were
' good and substantial reasons for failure to pre-
sent it in the proceeding before the agency, it is
hereby ordered that additional evidence be taken
by respondent agency under the conditions im-
posed in ORS 183.420, 183.440, 183.450 and 183.-
480(5).”
By this order the circuit court, in effect, ruled that
the Board had to accord petitioner a hearing on the
grounds for the termination of his employment.
In compliance with the circuit court’s order, peti-
tioner was granted a four-day hearing. The hearing
officer prepared detailed proposed findings of fact
and conclusions of law, all generally adverse to peti-
tioner’s position. After considering the administra-
tive record, the Board adopted its own more limited
findings
“1) That the procedure followed by the Oregon
Siate University administration concerning
the non-renewal of the appointment of Dr.
Papadopoulos and concerning the denial of
61
tenure to him complied with procedural due
process in all respects.
“2) That there was substantial evidence to jus-
tify the finding by the administration at Ore-
gon State University that Dr, Papadopoulos
did not comply with the standards of Oregon
State University School of Science for pro-
duction of scholarly research.
“3) That the administration at Oregon State
University did not base its decisionto deny Dr.
Papadopoulos indefinite tenure and a re-
newal of his academic appointment on any
conduct protected by the constitution and
laws of the United States of America and
the State of Oregon.”’,
and conclusion
“That the decisions of Oregon State Univer-
sity not to grant indefinite tenure to Dr. Papa-
dopoulos and not to renew his academic appoint-
ment are affirmed.”
II
Whether petitioner was entitled to a pretermina-
tion hearing on the reasons for his discharge depends
upon a combination of Oregon statutes and United
States Supreme Court cases interpreting the Due
Process Clause of the Fourteenth Amendment to the
United States Constitution. We first consider some
of the relevant statutes. In Part III, infra, we con-
sider some of the relevant statutes. In Part III, infra,
we consider the constitutional authorities.
One relevant statute is the Administrative Pro-
62
cedures Act, ORS ch 183. However, there is a ques-
tion as to which of two different versions of the Ad-
ministrative Procedures Act is applicable to this case.
Some “old” parts of the Administrative Procedures
Act were repealed effective September 9, 1971 and,
at the same time, some “new” parts of the Adminis-
trative Procedures Act went into effect. This case was
pending in circuit court on September 9, 1971. Does
the “old” or the “new” version of the Administrative
Procedures Act apply?
In Russell et al v. Pac. Maritime et al, 9 Or App
402, 406, 496 P2d 252, Sup Ct review denied (1972),
we held that:
“* * * [T]he pre-September 9, 1971 proced-
ures, including circuit court jurisdiction, apply
to all cases of this type that were validly pending
in circuit court on that date.”
While the specific question in Russell was one of
jurisdiction, we believe that holding to be applicable
here.
The chronology in this case was as follows. The
original petition for judicial review was filed May 7,
1970. After a demurrer was granted an amended pe-
tition was filed. After a motion to strike was granted
in part, a second amended petition was filed on Au-
gust 7, 1970. Following additional proceedings, this
case was remanded to the Board on February 11,
1971. In compliance with the circuit court’s remand
order, a contested case hearing was held June 16, 17,
18 and 29, 1971. Based on the hearing record, the
63
Board made its final decision on September 7, 1971.
By letter dated September 14, 1971, the administra-
tive record was transmitted to the circuit court and
filed therein September 16, 1971. The circuit court
proceeded to decide the merits, upholding the Board’s
September 7, 1971 decision.
Thus it is apparent that all critical events in this
case occurred before the September 9, 1971 effective
date of the “new” Administrative Procedures Act.
The original petition for judicial review was filed 16
months before that date. The order that the Board
accord petitioner a contested case hearing was made
seven months before that date. The hearing was con-
cluded two months before that date. And the Board’s
final decision was made two days before that date.
During all of this time “old” Administrative Pro-
cedures Act was in effect. It is the law by which
those events should be judged.
The only events that occurred after September 9,
1971, were: (1) the filing of the Board’s final deci-
sion with the circuit court; and (2) the circuit court’s
decision on the merits. The latter does not make the
“new” Administrative Procedures Act applicable. A
circuit court’s decision is always going to be ren-
dered after September 9, 1971, in cases like Russell
et al v. Pac. Maritime et al, supra.
The various briefs all simply assert that because
the Board’s final decision was filed in a circuit court
after September 9, 1971, therefore the “new” Admin-
istrative Procedures Act is applicable. We disagree.
64
Review of the Board’s final decision was not in any
way a new proceeding arising after September 9,
1971. It was the culmination of a single case that had
been pending for 16 months on that date. The circuit
court had not lost jurisdiction when it remanded this
case to the Board. This was the same lawsuit both
before and after the remand. There is no basis for
the assertion that the “new” Administrative Proced-
ures Act applies.*
The “old” Administrative Procedures Act used the
term “contested case” to describe those situations in
which an agency was required to grant a hearing be-
fore making a decision. The “old” Administrative Pro-
cedures Act described the basic procedures that had to
be followed at a contested case hearing, such as rea-
sonable notice, right to counsel, right to present evi-
dence and right to cross-examine adverse witnesses.
See, ORS 183.420 to 183.460 (1969). Contested case
was defined as:
“* * * [A] proceeding before an agency in
which the individual legal rights, duties or privi-
leges of specific parties are required by statute or
constitution to be determined only after an agency
hearing at which such specific parties are entitled
to appear and be heard * * *.” ORS 183.310(2)
(1969).
Thus, in general, the “old” Administrative Proced-
© In view of our conclusion that the “old’’ Administrative
Procedures Act governs, we express no view on the question
of whether the terms of the “new’’ Administrative Procedures
Act would produce a different result in this case—a question
briefed at length by the parties.
65
ures Act did not per se identify those situations in
which a contested case hearing was required, but, in-
stead, required examination of other statutes and con-
stitutional authorities to determine when a contested
case hearing was mandatory before an agency made
a final decision.
There are, of course, numerous statutes governing
various aspects of public employment. One of the uni-
versal characteristics of these various statutory
schemes is the distinction between probationary and
tenured public employees. Specifically, any individual
public employee is generally in one of three groups:
(1) those with permanent job security, i.e., tenured;
(2) those with no job security, i.e., probationary; and
(3) those with some, but not permanent job security.
In general, the distinction is that, by statute, tenured
public employees can only be discharged “for cause”
established in a hearing, while probationary public
employes can be discharged for any reason or no rea-
son and have no right to a hearing on the grounds
therefor.
Many examples are available to illustrate the con-
trasts between these different groups. State employes
are either “classified,” “unclassified,” or ‘“exempt.”’
ORS 240.195 to 240.210. All unclassified and exempt
employes are in the second group, i.e., there are no
statutory limits on the prerogative of the state to
discharge such employees. At the beginning of their
7 The differences between “unclassified” and “exempt”
state employes are not of any importance for present =
th groups are similarly situated in so far as
job security.
eir
66
employment, classified employes “serve a trial period
of not to exceed six months.” ORS 240.405(1). During
this initial probationary period classified employes
enjoy no significant statutory job security. See, ORS
240.410. After completing this probationary period,
the employe becomes a “regular employe” within the
meaning of ORS 240.560(1), and thereafter can only
be discharged “for cause,” ORS 240.560(4), defined
as “misconduct, inefficiency, incompetence, insubor-
dination, indolence, malfeasance or other unfitness to
render effective service,’ ORS 240.555(1). Also, a
regular classified employe must be granted a hearing
on whether the statutory grounds exist for his dis-
charge. See, ORS 340.560; Phillips v. State Bd. of
Higher Ed., 7 Or App 588, 490 P2d 1005 (1971),
Sup Ct review denied (1972). in other words, a regu-
lar classified employe of the state enjoys permanent
job security; by statute he can only be discharged for
certain enumerated grounds and in accordance with
certain established procedures.
A similar pattern exists for public employes in
local governmental units. ORS ch 241 creates civil
service requirements with which counties having a
population of 300,000 or more must comply. ORS
241.020. When first hired by such a county, an em-
ploye “shall be on probation for a period * * * not to
exceed one year if the position is in the police depart-
ment of the office of the sheriff, otherwise not to
exceed six months.” ORS 241.265. After completing
the required probationary period, the employe’s “ap-
pointment shall be deemed permanent.” ORS 241.275.
67
Thereafter, a permanent employe can only be dis-
missed “for cause,’”’ ORS 241.425, 241.430, pursuant
to statutory hearing procedures, ORS 241.435 to
241.445. Counties with a smaller population than
300,000 may but are not required to adopt such civil
service rules and procedures. ORS 241.006. Thus,
permanent employes in larger counties are part of
that group of public employes which enjoys permanent
job security. Probationary employes in larger counties
and all employes in smaller counties which have not
chosen to adopt a civil service system are part of that
group of public employes which enjoys no job security.
See, ORS 204.601(2); Schlichting v. Bergstrom, 97
Adv Sh 717,13 Or App 562, 511 P2d 846 (1973)
In school districts having a population of 100,000
or more, custodians, after serving a six-month proba-
tionary period, ORS 242.580, achieve permanent job
security, ORS 242.590. Firemen, after serving a 12-
month probationary period, ORS 242.766(1), achieve
permanent job security, ORS 242.768(1), and there-
after can only be discharged “for cause,” ORS 242.-
796, 242.798; see, Myers/Sherwood v. Tualatin RFD,
5 Or App 142,, 483 P2d 95 (1971).
This general pattern obtains in the case of public
elementary and secondary school teachers, albeit with
a bit more detail and complexity. ORS ch 342. There
is no provision for teacher job security in the smallest
school districts, those having an average daily pupil
attendance of less than 800. Teachers in intermediate-
sized districts with average daily attendance of more
68
than 800, but less than 4,500, have those rights and
duties enumerated in ORS 342.508 to 342.553. They
are initially hired on a series of three one-year con-
tracts. See, ORS 342.508; George v. School Dist. No.
8k, 7 Or App 183, 490 P2d 1009 (1971). Thereafter,
if rehired, they must be given three-year contracts.
ORS 342.508. During the term of one-year or three-
year contracts, a teacher can only be discharged for
the reasons specified in ORS 342. 530. But at the end
of any contract period “the school board could decline
to renew the contract for any reason.” George v.
School Dist. No. 8k, supra, 7 Or App at 195. Thus,
teachers in such an intermediate-sized school district
are an example of the group of public employes who
have some, but not permanent job security.
Teachers in the largest school districts, thuse with
average daily attendance of more than 4,500, are
treated similarly to state employes. ORS 342.805 to
342.955. In such a school district a teacher serves a
probationary period of three years, ORS 342.815(5),
presumably with a series of one-year contracts, see,
ORS 342.505, cf., ORS 342.835(1). It is not com-
pletely clear what the extent of a teacher’s job se-
curity is during the term of his contracts while in his
probationary period. Compare, ORS 342.835(1) with
ORS 342.530. It is clear that at the end of the term of
the contracts during the probationary period a teacher
has no job security.
“The district board may, for any cause it may
deem in good faith sufficient, refuse to renew the
contract of any probationary teacher.” ORS 342.-
835 (2).
69
If rehired after three years, a teacher achieves per-
manent job security. ORS 342.845. Thereafter, he
can only be discharged for the grounds stated in ORS
342.865 and in accordance with the procedures stated
in ORS 342.895 to 342.960.
As this survey of some of the statutory provisions
governing public employment makes apparent, a fea-
ture common to all of the statutory schemes is that a
new public employe serves an initial probationary
period followed, in most cases, by the possibility of
acquiring permanent job security. The probationary
period, obviously, is designed to permit on-the-job
observation and evaluation of the new employe’s per-
formance so that only those of demonstrated compe-
tence will acquire permanent job security. See, Cam-
marata v. Essex County Park Comm’n, 26 NJ 404,
412, 140 A2d 397 (1958) :
“Tt is difficult to evaluate the character, in-
dustry, personality, and responsibility of an ap-
plicant from his performance on a written exam-
ination or through cursory personal interviews.
Knowledge and intelligence do not alone [suffice]
* * *. The crucial test of his fitness is how he
fares on the job from day to day when suddenly
confronted by situations demanding a breadth of
resources and diplomacy. Many intangible qual-
ities must be taken into account, and, since the
lack of them may not constitute good cause for
dismissal under a tenure statute, the [employer]
* * * is entitled to a period of preliminary scrut-
iny, during which the protection of tenure does
not apply, in order that it may take pragmatically
informed and unrestricted decisions as to an
applicant’s suitability.”
70
Because of this valuable role that probationary public
employment can serve, statutory schemes that dis-
tinguish between te::iured and probationary employes
have been uniformly upheld against challenges based
on the Equal Protection Clause of the Fourteenth
Amendment. Schlicting v. Bergstrom, supra, and cases
cited therein.
There are no detailed statutes governing the em-
ployment of academic personnel by the State Board
of Higher Education. Instead, the legislature has
granted the Board general authority in this matter:
“The State Board of Higher Education may,
for each institution under its contral:
“(a) Appoint and employ a president and the
requisite number of professors, teachers and em-
ployes, and prescribe their compensation and ten-
ure of office or employment.
(t* 7 * * *
“(2) The State Board of Higher Education
may, for each institution, division and depart-
ment under its control:
‘i* a * . om
“(b) Enact rules and bylaws for the govern-
ment thereof, including the faculty, teachers, stu-
dents and employes therein.” ORS 351.070(1)
(a), (2) (b).°
Pursuant to this authority, the Board has adopted
regulations covering employment matters. They con-
form to the general scheme discussed above.
® State ex rel Kleinsorge ei al v. Reid, 221 Or 558, 352
P2d 466 (1960), discusses the statutes governing the opera-
tions of the Board at length.
71
The Board’s academic employes have either
“yearly tenure” or “indefinite tenure.” Although
there are no definitions of these terms in the regu-
lations, it is apparent that indefinite tenure means
an academic employe cannot be discharged except for
cause. Also it is apparent that yearly tenure means
that an employe can only be discharged for cause
during the term of his one-year appointment, but can
be discharged, i.e., not rehired, for any reason at the
end of each year.
The regulations seem to contemplate that an aca-
demic employe will usually initially be hired with
yearly tenure. Then at some point within the next six
years a decision will be made as to whether he will
be granted indefinite tenure.
This sketch of the Board’s employment practices
is distilled from the following regulations that were
in effect at the times material to this case.°
“* * * All * * * [academic] employees * * *
shall receive each year formal notification of con-
ditions and terms of employment for the fiscal
year beginning July 1. Such notification is sent
out from the president’s office. Unless otherwise
specifically stipulated in individual notices, or
® All citations to the Board’s regulations are to the pro-
visions in effect at the time material to this case, all of which
have since been replaced by new regulations. We cite the
older regulations material to this case as “1969 Adm. Code.
We have previously treated the Board's 1969 Am. Code
as having the force of law. West v. Bowers, 95 Adv Sh 1575,
— Or App —, 502 P2d 270(1972), Sup Ct Review denied
(1973) ; Toate v. State Bd. of Higher Ed., 8 Or App 50,
491 P2d 1193 (1971), Sup Ct review denied (1972). We con-
tinue to do so in this case.
72
otherwise provided herein, appointments or re-
appointments are for a period not beyond the
fiscal year designated in the notice of appoint-
ment. The official form is approved by the chan-
cellor’s office * * *.” 1969 Adm. Code, sec L-3-A
(4,
“Full-time members of the academic staff ap-
pointed with the rank of assistant professor or
above shall be employed on a one-year basis, and
ordinarily are considered for indefinite tenure ef-
fective with the fourth year of service. It is rec-
ognized that at times it may be desirable to grant
indefinite tenure, before the end of three years to
persons appointed with the rank of associate or
full professor. An annual review shall be made by
the president of those persons eligible for promo-
tion beyond the rank of assistant professor.
“If any appointment of an academic staff
member * * * not on indefinite tenure, is to be
terminated otherwise than for cause, he shall be
given a timely notice of termination as follows:
during the first annual appointment, at least
three months’ notice; thereafter, at least twelve-
months’ notice * * *. Annual appointment for a
seventh consecutive year shall normally include
the granting of indefinite tenure unless the sev-
enth annual notice of appointment specifically
provides otherwise.
“The provisions of this section shall apply to
all appointments unless in individual cases there
is a definite written understanding to the con-
trary, in which case the exception will be noted
in the notice of appointment.” 1969 Adm. Code,
sec L-3-F.
73
“* * * The appointment of an academic staff
member with indefinite tenure will not be termi-
nated for reasons other than for cause, except for
financial exigency * * *.”” Adm. Code, see L-3-FIF
(2) (b).
«* * * [Termination of employment—not for
cause—staff members without indefinite tenure].
Appropriate notice of termination shall be pro-
vided staff members without indefinite tenure as
set forth in Section L-3-F of the Administrative
Code * * *.” 1969 Adm. Code, sec L-3-FF (2) (c).
«“* * * The appointment of an academic staff
~ member, whether or not having tenure, may be
terminated for cause as herein provided. ‘Cause’
shall be understood to include gross inefficiency,
conviction of a felony, or conduct flagrantly un-
becoming a faculty member.” 1969 Adm. Code,
sec L-3-F'F (3) (a).
The regulations do not specifically define any
standards governing an initial appointment ot a fac-
ulty, or governing decisions whether to reappoint or
not to reappoint a faculty member with yearly tenure,
or governing whether to grant or deny indefinite ten-
ure. But cf., 1969 Adm. Code sec C-2:
“While not unmindful of other objects of state-
supported institutions of higher learning, namely
research and extension, or other service to the
state, imparting instruction on the respective cam-
puses is the primary and fundamental function
of the institutions.”
lil
The above-discussed statutes are important in de-
74
termining whether a public employe has a constitu-
tional right, under the Due Process Clause, to a pre-
discharge hearing. Specifically, tenured public em-
ployes do have a right to a hearing, but probationary
public employes do not. Board of Regents v. Roth, 408
US 564, 92 S Ct 2701, 33 L Ed 2d 548 (1972) ; Perry
v. Sindermann, 408 US 593, 92 S Ct 2694, 33 L Ed
2d 570 (1972); see also, Slochower v. Board of Edu-
cation, 350 US 551, 76 S Ct 637, 100 L Ed 692
(1956).
The Roth case involved a nontenured assistant
professor in his first year of his first job teaching in
the Wisconsin public higher education system. In ac-
cordance with the relevant Wisconsin statutes and
regulations he was given timely notification that his
contract would not be renewed for a second year. He
then initiated an action in federal court contending
he was entitled to a statement of reasons for his non-
retention and a pretermination hearing to contest
those reasons.
The Supreme Court held to the contrary. “The re-
quirements of procedural due process apply only to
the deprivation of interests encompassed within the
Fourteenth Amendment’s protection of liberty and
property. * * *” 408 US at 569. The Supreme Court
concluded that a public employer’s decision not to re-
tain a probationary employe did not ordinarily con-
stitute a deprivation of liberty. “* * * It stretches the
concept too far to suggest that a person is deprived of
‘liberty’ when he simply is not rehired in one job but
75
remains as free as before to seek another. * * *” 408
US at 575. Also, the Supreme Court concluded that
a public employer’s decision not to retain a probation-
ary employe did not ordinarily constitute a deprivation
of property.
«“* * * To have a property interest in a bene-
fit, a person clearly must have more than an ab-
stract need or desire for it. He must have more
than a unilateral expectation of it. He must, in-
stead, have a legitimate claim of entitlement to it.
It is a purpose of the ancient institution of prop-
erty to protect those claims upon which people
rely in their daily lives, reliance that must not be
arbitrarily undermined. It is a purpose of the con-
stitutional right to a hearing to provide an op-
portunity for a person to vindicate those claims.
“Property interests, of course, are not created
by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or
understandings that stem from an independent
source such as state law—rules or understandings
that secure certain benefits and that support
claims of entitlement to those benefits. * * *
“se @¢ 28
«“* * * [T]he terms of the respondent’s ap-
pointment secured absolutely no interest in re-
employment for the next year. They supported ab-
solutely no possible claim of entitlement to re-
employment. Nor, significantly, was there any
state statute or University rule or policy that se-
cured his interest in re-eniployment or that cre-
ated any legitimate claim to it. In these circum-
stances, the respondent surely had an abstract
concern in being rehired, but he did not have a
76
property interest sufficient to require the Uni-
versity authorities to give him a hearing when
they declined to renew his contract of employ-
ment.” 408 US at 577-78.
The Sindermann case also involved a college pro-
fessor. He had been employed on a series of one-year
contracts in the Texas public higher education system
for 10 years. During his tenth year of teaching he
was given timely notice that his contract would not
again be renewed. Like Professor Roth, Professor Sin-
dermann then went to federal court urging he was
entitled to a statement of reasons for his nonretention
and a pretermination hearing to contest those reasons.
His complaint alleged that while the public junior
college where he had been employed had no formal
tenure system, it “had a de facto tenure program.”
408 US at 600. He alleged this program was based
on a provision “in the college’s official Faculty Guide”
and on “* * * guidelines promulgated by the Coordin-
ating Board of the Texas College and University
System that provided that a person, like himself, who
had been employed as a teacher in the state college and
university system for seven years er more has some
form of job tenure. * * *” (Emphasis supplied.)
408 US at 600.
The Supreme Court held that if Professor Sinder-
mann could prove these allegations he would thereby
establish that he “* * * had no less a ‘property’ inter-
est in continued employment than a formally tenured
teacher * * *.” 408 US at 601, and “* * * such proof
77
would obligate college officials to grant
a hearing at his request, where he could
be informed of the grounds for his non-
retention and challenge their sufficiency.”
408 US at 603.
As previously noted, numerous statutes
and regulations entitle certain public
employes to permanent job security, i.e.,
they can only be discharged for enumerated
causes. For employes who have achieved
tenured status, these statutes create pro-
perty interests within the meaning of the
Fourteenth Amendment. Such employes cannot
be deprived of this property interest with-
out first having a hearing that satisfies
due process requirements. Perry v. Stnder-
mann, Supra.
Also as previously noted public employes
when first hired commonly are required to
serve a probationary period. This can vary
in length from up to six months for state
classified employes to up to six years for
professors employed by the State Board of
Higher Education. Other public employes
are in positions for which no provision
has been made for ever acquiring permanent
job security. See,Schlichting v. Bergstrom,
13 OrApp 562, 511 P2d 846 (1973). Employes
who are in probationary status, either
temporarily or permanently, have no pro-
perty interest within the meaning of the
Fourteenth Amendment. The constitution
does not require that they be granted
a pretermination heariig or be informed of
78
the reasons for their discharge.'® Board of Regents Vv.
Roth, supra.
Thus in Oregon, public employe tenure
rights arise solely from statutes,or in
the case of the Board,regulations adopted
pursuant to a statutory delegation of
authority. See Part II, supra. It is these
tenure rights based on statute or regula-
tion that create property interests that
cannot be withdrawn qithout a due process
hearing. Employment contracts of public
employes may create rights to continued
employment over and above that created by
statute or regulation. But such an employ-
ment contract, standing alone, does not
create the kind of interest that triggers
the requirement of a due process hearing
before the government withdraws the bene-
fits of the contract, i.e., breaches it.
In such a situation, the public employe's
remedies are measured by the law of con-
tracts, not by constitutional law.
10 By statute the legislature could extend any additional
procedural rights it wished to probationary employes. Much
of the argument before us relates to whether the legislature
intended to do just that by way of the 1971 amendments to
the Administrative Procedures Act, a question we do not
reach. See, n 5, supra. Or the Board could, by regulation, ex-
pand the procedural rights of its probationary employes;
Toney v. Reagan, 467 F2d 953 (9th Cir 1972), cert denied
sub nom Mabey et al y. Reagan et al., 409 US 1130 (1973).
discusses the details of regulations whereby nontenured fac-
ulty members were granted a right to a hearing if their ap-
pointments wer not renewed. Due process always speaks in
terms of the minimum necessary procedures, whereas the leg-
islature or the Board may well be concerned with the best
possible procedures.
Also, several recent cases have involved hearing rights
based on collective bargaining agreements. E.g., Curbelo v.
‘in College Trustees, 38 Mich App 432, 196 NW2d 843
79
IV
With these principles in mind, we turn to the
question of whether petitioner was entitled to a con-
tested case hearing before the Board terminated his
employment effective June of 1970. This depends
upon whether the Board was “required by statute or
constitution” to hold a hearing before deciding to
terminate petitioner’s employment. ORS 183.310(2)
(1969).
The Board was not required by statute to hold
such a hearing. As discussed in Part II, supra, under
the state civil service laws unclassified employes have
no statutory right to a hearing on the grounds for
their dismissal. Unclassified employes include all aca-
demic employes of the Board. ORS 240.207(1) (b)
(E). :
Whether the Board was required by constitution
to accord petitioner a pretermination hearing depends
upon the existence and extent of petitioner’s entitle-
ment to future employment under the Board’s regu-
laions. See, Part III, supra. When initially hired for
the 1967-68 academic year, petitioner had a one-year
appointment, i.e., what the Board’s regulations term
“yearly tenure.” When reappointed for the 1968-69
and 1969-70 academic years petitioner also had yearly
tenure. By the provisions of the relevant regulations,
see Part Il, supra, these appointments created prop-
erty interests in the sense that petitioner could not
have been discharged during any of those academic
80
years without the Board’s first holding a hearing on
the reasons for his discharge. But also under the
Board’s regulations petitioner could have been dis-
charged at the end of any of those years for any rea-
son or no reason, and he would have no right to a
hearing on the grounds for his discharge."
But that is not the end of our inquiry. One of the
Board’s regulations in effect at the times material to
this case provided:
“If any appointment of an academic staff
member * * * not on indefinite tenure, is to be
terminated otherwise than for cause, he shall be
given a timely notice of termination as follows:
* * * at least twelve-months’ notice * * *.” 1969
Adm. Code, sec L-3-F
The effect of this regulation is to entitle the Board’s
academic employes to continued employment unless
't [tf may seem anomalous that a professor on yearly ten-
ure has no right to ¢ hearing if dismissed at the end of his
sixth year of teaching at Oregon State, while many courts
have held that a cullege student cannot be expelled at any
point without a hearing. See, Dixon v. Alabama State Board
of Education, 294 F2d 150 (5th Cir.), cert denied 368 US
930 (1961); see generally, Wright, The Constitution and the
Campus, 22 Vand L Rev 1027 (1969) ; Annotation, 53 ALR2d
903, 905 (1958). It may seem anomalous that a professor
employed by the Board, unless and until granted indefinite
tenure, enjoys less job security than the maintenance em-
ploye in the University of Oregon power plant involved in
Beistel v. Pub. Emp. Relations Bd., 6 Or App 115, 486 P2d
1305 (1971). It may seem anomalous that under the Board’s
regulations a university professor can have less job security
than do virtually all teachers in this state’s public primary
and secondary schools under ORS ch 342.
To the extent that these anomalies, if that they be, are
the product of statutes and regulations, the legislature or
the Board, respectively, are the appropriate forums in which
to question the wisdom of such results.
81
and until they receive timely notice of termination in
accordance with the requirements of the regulation.
See, Zimmerman v. Minot State College, 198 NW2d
108 (ND 1972); Pima College vy. Sinclair, 17 Ariz
App 213, 496 P2d 639 (1972).
The Board’s regulations are thus different from
the comparable Wisconsin regulations involved in the
Roth case. In Wisconsin public universities:
«“«* * * The employment of any staff member
for an academic year shall not be for a term be-
yond June 30th of the fiscal year in which the ap-
pointment is made.’ * * *” 408 US at 566, n 1.
««* * * February first is established through-
out the State University system as the deadline
for written notification of non-tenured faculty
concerning retention or non-retention for the en-
suing year. The President of each University
shall give such notice each year on or before this
date.’” 408 US at 567-68, n 4 (Emphasis sup-
plied.)
Under these rules requiring formal notification of
“retention or non-retention’ it would appear that si-
lence would be tantamount to nonretention. By con-
trast, under the Oregon State Board’s rules, silence,
i.e., failure to give twelve months’ notiifeation of non-
retention, is tantamount to retention.
The Board’s regulations are unclear as to whether
the twelve months’ notification requirement means
twelve months before the beginning of the fiscal year,
referred to in 1969 Adm. Code, sec L-3-A (4) as being
July 1, or twelve months before the beginning of the
82
academic year, referred to in 1969 Adm. Code, sec
L-3-B as being September 16, or twelve months be-
fore the effective date of the termination, i.e., the end
of the academic year, referred to in 1969 Adm. Code,
sec L-3-B as being June 15. The last possibility seems
most plausible, that is, in order to terminate peti-
tioner’s employment effective June 1970, it would
have been necessary to so notify him by June 1969.
However, we need not resolve this ambiguity in the
Board’s regulations because under any possible con-
struction of the required notification date petitioner
did not receive timely notification of termination.
The Board argues that Dean Ward’s letter of
the relevant inquiry is whether petitioner received
timely notice of termination in compliance with 1969
Adm. Code, sec L-3-F. It seems obvious that the notice
of termination contemplated by 1969 Adm. Code, sec
L-3-F is notice from somebody with authority to make
the decision to terminate. We conclude that there is
no authority to terminate a professor’s employment
below the University President level.
As previously noted, Part II, supra, the Board has
explicit statutory authority to “employ * * * profes-
sors * * * and prescribe their * * * tenure of * * * em-
ployment.” ORS 351.070(1) (a). Presumably, there
February 25, 1969, to petitioner complied with the
notice requirements of 1969 Adm. Code, sec L-3-F, i.e.,
that petitioner received 16 months’ notice his employ-
ment would be terminated effective June 1970. Peti-
tioner contends the first formal notification of term-
ination he received was the Oregon State President’s
83
letter of September 24, 1969, and that this notification
was too late under 1969 Adm. Code, sec L-3-F to
terminate his employment effective June 1970. We
agree with petitioner.
As in Wallis v. Crook County School Dist., 96 Adv
Sh 1863, — Or App —, 509 P2d 44 (1978), the rele-
vant inquiry is not whether petitioner had knowledge
of the possibility that he would be discharged; rather,
would be no preblem with the Baord’s delegating some
or all of its authority over personnel decisions to sub-
ordinates. Cf., Beistel v. Pub. Emp. Relations Bd.,
6 Or App 115, 486 P2d 1305 (1971). However, the
Board’s regulations are obscure as to whether there
has, in fact, been such a delegation.
Following the tenor of ORS 351.070(1) (a), one
part of the regulations seems to provide that the
Board has all control over personnel decisions: .
«“* * * Appointments tg positions in the aca-
demic classification in the salary budget are made
by the board upon the recommendation of the de-
partment head, the dean, the executive head of
the institution, and the chancellor.” 1969 Adm
Code, sec L-3-A(1).
However, 1969 Adm. Code, sec F-2-A provided: .
“The chancellor shall have complete authority
* * * over the selections, appointment, promotion,
salaries, transfers, suspensions, and dismissals
of all officers, members of the f aculties, and other
employes of the system and its component di-
visions, exercising his authority by making rec-
ommendations to the board, in which rests the
. . #9?
sole power of decision. * *
®
84
This section appears to be internally inconsistent; it
starts with the statement that the chancellor has “com-
plete authority,” but concludes by stating the Board
has “the sole power of decision.” Moreover, 1969 Adm.
Code, sec G-1-B further muddies the waters by seem-
ing to give each university president a measure of
control over personnel decisions:
“The president [of each university] shall
* * * have the initiative in the selection of all of-
ficers, members of the faculties, and other em-
ployees of his institution, subject to the approval
of the chancellor. He shall exercise this authority
in case of subordinate positions by filling vacan-
cies as they may occur upon approval of the chan-
cellor * * * when the salary outlay is within the
budget appropriations provided by the board for
such positions, and in case of major positions by
making recommendations of appointment through
the chancellor to the board, in which rests the sole
power of election and confirmation of appoint-
ment.”
Several of the above-quoted regulations deal pri-
marily or exclusively with initial hiring decisions. The
Board’s regulations depart from their usual cryptic-
ness and deal with the subject of termination proce-
dures at some length. Most of the detail relates to
terminations for cause. After a hearing before an
ad hoc seven-member faculty committee, the “institu-
tional executive” (presumably meaning the president)
makes a decision. 1969 Adm. Code, sec L-3-FF-3(i).
If that decision is adverse to the teacher, he can ap-
peal to the Board and
85
“The State Board of Higher Education may
conduct such hearings as it deems proper for its
consideration of an appeal, or it may refer the
appeal to a committee of Board members for con-
sideration and recommendation. * * *” 1969 Adm.
Code, sec L-3-FF-3 (j).
The regulations contain no parallel provisions appli-
cable to terminations not for cause. Thus, there is no
answer in the regulations to the question of who makes
a decision to terminate, i.e., not to renew the contract
of a professor on yearly tenure.
The record is more illuminating. The proceedings
at the Mathematics Department level—the Commit-
tee vote that petitioner be granted indefinite tenure,
the vote of the tenured faculty that petitioner be
granted indefinite tenure, and the Chairman’s per-
sonal endorsement—were all phrased as recommenda-
tions and passed up the chain of command as such,
for a final decision to be made at a higher level. After
“consulting” with his Advisory Committee, Dean
Ward’s letter of February 25 stated:
“* * * TY Jou will not be recommended by this
office to the Dean of Faculty for reappointment
to the faculty of the Department of Mathematics
after the academic year 1969-70.” (Emphasis
' gupplied.)
This, too, was phrased as a recommendation to be
passed up the chain of command for a final decision
to be made at a higher level. The record describes the
Dean of Faculty as the “chief academic personnel
officer for’ Oregon State, but does not tell us what
86
his contributions were to the decision to discharge
petitioner. |
Confusion arises when we reach the University
President level. The President’s September 24 letter
to petitioner stated:
“* * * [T]he executive office finds no sound
academic basis for reversing the recommendation
of the School of Science. * * *” (Emphasis sup-
plied. )
The same letter contained references to “Dean Ward’s
decision.” Also, at the March 1970 hearing before
the Board’s Academic Affairs Committee the Univer-
sity President said there had been a “delegation of
responsibility” to Dean Ward, and that the real issue
was whether he (the President) had been correct in
not overturning Dean Ward’s decision.
However, we find no basis for concluding Dean
Ward or anybody else below the University President
level had authority to make a final decision to termi-
nate petitioner’s employment. Significantly, the same
analysis was in “he Board’s answer filed in the circuit
court in this proceeding:
“* * * [R]espondent admits that it was with-
in the scope of Dean Ward’s authority to make
recommendations to Acting University President
Young concerning petitioner’s continued employ-
ment by University and it was within the scope
of Acting University President Young’s authority
to act upon such recommendations unless such act
should be disapproved by respondent * * *.” (Em-
phasis supplied. )
87
Therefore, the statement in the President’s Sep-
tember 24 letter that
. «“* * * we regard Dean Ward’s letter of Feb-
— ruary 25, 1969, to you as a letter of timely no-
tice of non-reappointment in accordance with the
provisions of Section L-3-F of the Administrative
Code of the Oregon State Department of Higher
Education.”,
had no basis in law. It was impossible for Dean
Ward’s February 25 letter to be “timely notice of
non-reappointment” because under the Board’s regu-
lations Dean Ward did not have authority to make
such a decision. It was the President’s September 24
letter that was the actual notice of termination.
However, the President’s September 24 letter was
not adequate notice to terminate petitioner’s employ-
ment before the end of the 1970-71 academic year.
When June 1969 passed without petitioner's having
been told his employment would be terminated effec-
tive June 1970 by somebody with authority to make
that statement, he then had an entitlement to continue
employment, based on the Board’s regulations, until
June 1971. The President’s September 24 letter was
sufficient notice to terminate petitioner’s employment
in June 1971; that letter was not sufficient notice to
terminate petitioner’s employment sooner than June
1971.
Since the Board’s regulations created an entitle-
ment to continued employment until June 1971, the
Board was required by the constitution to accord peti-
tioner a hearing when it sought to discharge him be-
fore that date. See, Part III, supra. Since a hearing
was required by the constitution, the Administrative
Procedures Act, ORS ch 183, required that the hear-
ing should be a contested case hearing conducted in
accordance with the requirements of the Administra-
tive Procedures Act. See, Part II, supra.
In spite of petitioner’s entitlement to continued
employment until June 1971, the Board discharged
him effective June 1970. It did not accord petitioner
a proper hearing before doing so. The hearing before
a committee of the Board in March 1970 did not com-
ply with the requirements of the Administrative Pro-
cedures Act. Just as one example, cross-examination
was not permitted in violation of ORS 183.450(3)
(1969).
In summary, the Board’s June 1970 discharge of
petitioner was in violation of his constitutional right
to a hearing before being deprived of his property
interest in continued employment until June 1971,
and in violation of his statutory right under the Ad-
ministrative Procedures Act that such a hearing be
conducted in accordance with that statute.
There remains the question of an appropriate rem-
edy, an issue on which the copious briefs before us
are not very helpful. Normally, a public employe dis-
charged in a manner that violates the employe’s rights
to a pretermination hearing would be entitled to re-
instatement. Greene v. Howard University, 412, F2d
1128 (DC Cir 1969). But reinstatement would only
be for the period of the employe’s entitlement to con-
89
tinued employment under relevant statutes and reg-
ulations. Here petitioner’s entitlement to continued
employment ended in June 1971. Since that date has
long since passed, reinstatement is not the appropri-
ate remedy in this case.
Instead, ti appears that petitioner is entitled to
money damages in the form of what his salary would
have been for the 1970-71 academic year less the
amounts he did earn or reasonably could have earned
during that period. Zimmerman v. Minot State Col-
lege, supra. This would be the natural result of ap-
plication of the principle that the victim of an un-
constitutional act is entitled to be restored to that
which he lost. Cf. Bivens v. Six Unknown Fed. Nar-
cotics Agents, 403 US 388, 91 S Ct 999, 29 L Ed 2d
619 (1971). However, as noted we have not had the
benefit of full argument on the remedy issue, and
there is no evidence in the record on petitioner’s mit-
igation, ic. what he did earn or reasonably could
have earned during the 1970-71 academic year. There-
fore, upon remand the circuit court will explore and,
if necessary, hear evidence on the remedy issue. In
the unusual circumstances of this case, we believe the
circuit court has authority to do so under the terms
of ORS 183.480(6) (1969).'*
12 ORS 183.480(6) (1969) provided: ;
“The review shall be conducted by the [circuit] court
without a jury as a suit in equity an shall be confined to
the record, except that, in cases of alleged irregularities
in procedure before the agency, not shown in the record,
testimony thereon may be taken in the court. The court
shall, upon request, hear oral argument and receive writ-
ten briefs.”
90
. In summary, we hold: (1) The notice of termina-
tion of employment petitioner received was too tardy
under the Board’s regulations, to terminate petition-
er’s employment effective June 1970; (2) therefore
under the same regulations petitioner had an eupeo-
tation of continued employment until June 1971: (3)
petitioner’s expectation of continued employment was
a property interest within the meaning of the Due
Process Clause—he could not be deprived of contin-
ued employment until June 1971 without a preter-
mination hearing; (4) such a hearing had to comply
with the requirements of the Administrative Proced-
ures Act, ORS ch 183; (5) petitioner was not accord-
ed a pretermination hearing that complied with the
Administrative Procedures Act. Thus, to the extent
that the circuit court affirmed the petitioner’s dis-
charge effective June 1970, that determination is re-
versed and remanded for further proceedings on pe-
titioner’s damages for the 1970-71 year. In all other
respects the circuit court’s decision is affirmed.
Affirmed in part; reversed and remanded in part.
Once a court of equity acquires jurisdict i
— relief. Ruby v. est Go tenet eae
10138 Pod 686 (10st . Fisk v. Leith, 137 Or 459, 299 P
91
APPENDIX F
STATE OF OREGON
MICHAEL PAPADOPOULOS, ) MANDATE
Appellant,Cross-Respondent, )
v. ) Appeal from
OREGON STATE BOARD OF ) Marion County
HIGHER EDUCATION, )
Respondent-Cross-Appellant. ) No. 70049
This cause having come on to be heard on appeal
and having been duly submitted and considered:
IT IS HEREBY ADJUDGED and ORDERED
that the decision entered below in this cause is af-
firmed in part; reversed and remanded in part.
IT IS FURTHER ORDERED that appellant-cross-
respondent recove: from respondent-cross-appellant
damages, costs and disbursements in this court in the
amount of $417.80.
The cause is remanded for further proceedings to
law and this Court’s decision and opinion herein.
ENTERED at Salem, Oregon, this 27th day of
JUNE, 1973.
92
APPENDIX G
PROVISIONS OF STATE LAW PERTINENT
TO THE CASE
Chapter 183 of the Oregon Revised Sta-
tutes, 1969 Replacement Part, pp.93-99,
contains the following pertinent provi-
sions:
" ORS 183.310 * * *, As used in ORS
183.310 to 183.510:
(1) "Agency" means any state board,
commission, * * *, or officer
authorized by law * * * to ad-
judicate contested cases.
(2) “Contested case" means a pro-
ceeding before an agency in which
the individual legal rights, duties
Or privileges of specific parties
are required by statute or consti-
tution to be determined only after
an agency hearing at which such
specific parties are entitled to
appear and be heard * * *,"
" 183.420. * * *,. In any contested case,
all parties shall be afforded an
opportunity for hearing after
reasonable notice. The notice
shall state the time, place and
issues involved, * * * and oppor-
tunity shall be afforded all par-
ties to present evidence and argu-
ment with respect thereto. * * *,."
93
" 183.470. * * *, Every decision and o
order adverse to a party to the
proceeding, rendered by an agency
in a contested case * * * shall
be accompanied by findings of
fact and conclusions of law. The
findings of fact shall consist of
a concise statement of the deter-
mination of each contested issue
of fact. * * *,”
" 183.480. Judicial review of contested
cases
(1) (a) * * *(A)ny party to an
agencv proceeding aggrieved
by a final decision in a con-
tested case * * * is entitled
to judicial review thereof
under ORS 183.310 to 183.510.
(1) (b) Judicial review of deci-
sions in contested cases
* * * shall be solely as pro-
vided in ORS .183.310 to 183.510.
(2) Jurisdiction for judicial
review is conferred upon the
Circuit Court for Marion County
* * *. Proceedings for review
shall be instituted by filing
a petition in (that) court. *
* *,. The petition shall state
the nature of the petitioner's
interest, the facts showing
how the petitioner is aggrieved
by the agency decision, and the
ground or grounds upon which
the petitioner contends the
decision should be reversed
4
(6)
(7)
94
and set aside. True copies of the
petition shall be served by regis-
tered mail upon the agency and all
other parties of record in the
agency proceeding. No responsive
pleading shall be required of the
agency. * * *,
So ee
The review shall be conducted by
the court without a jury as a suit
in equity and shall be confined to
the record, except that, in cases
of alleged irregularities in pro-
cedure before the agency, not shown
in the record, testimony thereon
may be taken in the court. The
court shall, upon request, hear
Oral argument and receive written
briefs.
The court may adopt the agency
findings of fact and affirm the
decision of the agency; or it may
reverse and set aside the agency
decision, or reverse and remand
for further proceedings, * * *.
The court shall thereupon enter
its decree.
" 183.490, * * *, The court may, upon
petition as described in ORS
183.480, compel an agency to act
where it has unlawfully refused
to act,or unreasonably delayed
action.
95 | 96
Chapter 16 of Oregon Revised Statutes, (2) The causes of action so united
1969 replacement part contains, at PP must all belong to one only of these
121,122 the following pertinent provisions: classes (and must affect all the par-
" 16.210 * * *, (1) The first pleading
on the part of the plaintiff shall be
the complaint.
(2) The complaint shall contain:
(a) The title of the cause * * *
and the names of all the parties to
the action * * *,
(b) A plain and concise statement of
the facts constituting the cause of
action * * *,
(c) A demand of the relief which the
plaintiff claims. If the recovery of
money or damages is demanded, the amount
thereof shall be stated.
"16.220 Joinder of causes of action.
(1) The plaintiff may unite several
causes of action in the same complaint
when they all arise out of:
(a) Contract, express or implied.
(b) Injuries * * * to the person.
(c) Injuries * * * to property.
(d) Injuries to character.
z *& ®
(h) Injuries both to the person and
property, when caused by the same wrong-
ful act or ommission.
x ek
ties to the action, * * *,"
" 16.230 Joinder of causes of suit
(1) The plaintiff in a suit may
unite several causes of suit in the same
complaint when they all arise out of:
(a) The same transaction,or transact-
—- connected with the same subject of
suit.
(b) Contract, express or implied.
(c) Injuries * * * to property.
*& «ft
(2) The causes of suit so united
must all belong to one of those classes,
(and) must affect all the parties to the
suit, * * *,
Chapter 43 of Oregon Revised Statutes,
1975 replacement part, contains at pp.35l
-352 the following pertinent provisions:
" 43.110 * * *, The effect of a
jusgness decree or final order in an a
action, suit or proceeding before a
court of judge of this state or of
the United States, having jurisdiction
is as follows:
(1) zs a 8
(2) * * * (T)he judgment, decree or
order is, in respect to the matter direc-
tly determined, conclusive between the
97
parties, their representatives and their
successors in interest by title subsequent
to the commencement of the action, suit or
proceeding, litigating for the same thing,
under the same title and in the same
capacity.
" 43.140 * * * A judicial order,
other than a judgment, decree or final
order, in an action, suit or proceeding
before a court or judge of this state
or of the United States creates a disput-
able presumption concerning the matter
directly determined between the same
parties, their representatives and
their successors in interest by title
subsequent to the commencement of the
action, suit or proceeding, litigating
for the same thing, under the same
title and in the same capacity.
" 43.150 * * * The parties are the
same when those between whom the evi-
dence is offered were adverse in the
former case, and a judgment, decree
or other determination could have
been made between them alone, though
other parties were joined.
" 43.160 * * * That only is deter-
mined by a former judgment, decree or
order which appears on its face to have
been so determined or which was actually
and necessarily included therein or
necessary thereto.
In The
SUPREME COURT OF THE UNITED STATES
No. eeeeeenee
MICHAEL PAPADOPOULOS Ph.D.
Petitioner, :
v.
OREGON STATE UNIVERSITY,et al.
Respondente. :
AFFIDAVIT OF SERVICE
hy
County of Benton )
) ss.
STATE OF OREGON )
I, MICHAEL PAPADOPOULOS
duly sworn, depose and rade being first
I am the petitioner herein
act i
-— ae I served three true + Bagh
? oregoing Petition for a Writ of Cert-
og by mailing them, postage prepaid
- ——— A. REDDEN, Attorney General of the
: ate of Oregon, 100 State Office Building
alem, Oregon 97310, attorney for the res-
ponsenees on this _ day of December ,1977
certify that all-parties required to be —
served have been so served.
Michael P |
3370 un eae OB.
Corvallis, OR 97330.
Signed and sworn to before
me thi
of December, 1977. ‘_
ary c for
My commission expires
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.