Tales From The Travels

When I appealed the decision by the SD Department of Labor judge, some of the issues on appeal were actions taken by the administrative law judge, Randy Bingner. Now, I had been told far and wide that Bingner was a problem. Lawyers have told me that as soon as they drew him for a case they would start preparing their appeal.

Now, I wasn’t about to come out and say in my court briefing that he was a crook. I figured, even if I proved it, the judges were going to stick together and I would get myself in trouble. But, I had to have grounds for appeal and I was confident that the circuit court would find against me, no matter what. That meant I had to set myself up for appeal to the state supreme court. So, I limited myself to pointing out specific things Bingner did and wrote and citing them as grounds for appeal. I figured I was still going to get in trouble and the fact that I was merely quoting Bingner wouldn’t matter. And, I was right.

The Bad Guys filed a motion to have me sanctioned almost right away. That was in January 2007. In May 2007 we had a telephone hearing and Judge Stephen Jensen instructed me at that time to show grounds at our next hearing that my statements were justified. Consequently, I attended the July 2007 hearing in person and spent several minutes citing specific examples of where Bingner had acted improperly.

As I expected, it didn’t matter. The judge ruled against me on most counts (except the one important single count in my favor) and the Bad Guys renewed their motion for sanctions. They also requested disbursements for expenses incurred as a result of my appeal. Judge Jensen granted both of them and fined me to make sure I didn’t do it again. Of course, I was not impressed and appealed his decisions to the SD Supreme Court.

There were a number of serious problems with his actions. On the issue of sanctions, the Bad Guys never showed they had standing to file such a motion. They didn’t suffer any damage, so they had no complaint. If Bingner had wanted to file a motion, that would be one thing, but you can’t just walk in off the street and file a motion. Also, they didn’t follow procedures required by law. Jensen just ignored that and went on his merry way. But, most importantly, they never gave specific examples of where I was in violation of the law and they never produced any evidence that I had was in violation. There entire case was that they didn’t like what I said in general, therefore I should be punished for it.

On the issue of disbursement, the biggest problem was that I claim I was the prevailing party. The Judge Jensen ruled in my favor on one issue, the number of years of service I had completed. This was an important issue because USD was required to pay a penalty to me, depending on my years of service and we claimed different amounts due to the two times I was mobilized. Well, the judge, after everyone else had ruled against me on this issue, ruled in my favor. Of course, he then went on to say I wasn’t entitled to the penalty anyway. But, the important thing is that he ruled in my favor and this made me the prevailing party (As it turns out, I’m now asking the SD Supreme Court to order them to pay me the $126,000 penalty, so its not a trivial point). If I was the prevailing party, then the Bad Guys can’t ask for disbursements. Additionally, he gave them expenses they incurred before I filed my appeal, even years before. These can’t be expenses incurred as a result of my appeal if they were incurred before I even filed my appeal.

So, I submitted my appeal brief to the SD Supreme Court yesterday. Now, the Bad Guys will reply in 45 days and it will be an empty, ineffective reply because they know it doesn’t matter how they reply. And, then I will respond to their reply. But, for the next 45 days, I am finished with the Bad Guys and get to do something else.

Which is good, because I have one full plate right now.

Here’s my brief, if you’re interested.

****************
IN THE SOUTH DAKOTA SUPREME COURT

DR. CHRISTOPHER F. KEATING, )
)
Appellant )
)
v. ) CIV. 06-307
)
JAMES W. ABBOTT AND THE )
UNIVERSITY OF SOUTH DAKOTA )
)
Appellees )

Appellant’s Appeal Brief

1. The circuit court from which this appeal is taken is Clay County Circuit Court.

2. The county in which the action is venued at the time of appeal is Clay County.

3. The name of the trial judge who entered the decision appealed: The Honorable Stephen R. Jensen.

Parties and Attorneys
Appellant:
Dr. Christopher Keating

Represented by:
Pro Se

Appellees:
James W. Abbott and the University of South Dakota

Represented by:
Robert B. Frieberg, Frieberg, Nelson & Ask, L.L.P., 115 North Third St., P.O.

Date of Notice of Appeal: April 30, 2008
Table of Contents

Table of Citations Page 3
I. Jurisdictional Statement 4
II. Statement of Legal Issues 4
III. Statement of Case and Facts 5
IV. Legal Argument 6
Introduction 6
Sanctions and Order to Show Cause 7
Disbursements 12
Summary and Remedy 15
Appendix

Citations
Farrar v. Hobby, 506 U.S. 103, 111 (1992) 8, 14
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) 7, 10
Michlitsch v. Meyer, 1999 SD 69 8, 9, 12, 15
Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990), cert. denied, 112 S. Ct. 875 (1992) 10
Nelson v. Nelson Cattle Co., 513 NW2d 900, 906 (SD 1994) 9, 16
SDCL 15-17-37 8, 9, 13, 14, 15
SDCL 15-17-52 9, 13, 15
SDCL 15-17-53 9, 13, 15
SDCL 15-37-37 16
SDCL 15-6-11(b) 8, 12
SDCL 15-6-11(c) 8, 11, 12
SDCL 15-6-11(d) 9, 16
SDCL 15-6-27(a) 16
SDCL 15-6-54(d) 8, 14
SDCL 3-21-2 13
Warth v. Seldin, 422 U.S. 490, 501 (1974) 8, 10

I. Jurisdictional Statement

1. I, Dr. Christopher F. Keating, submit the following brief, pursuant to SDCL § 1-26A-60, in support of my appeal on the listed decisions in the above referenced matter.

2. Decisions on appeal are:
• Order For Sanctions Pursuant to SDCL 15-6-11, dated April 4, 2008 and filed April 7, 2008.
• Order Approving Costs and Directing Clerk of Court to Enter Same, dated April 4, 2008 and filed April 7, 2008.
• Findings of Fact and Conclusions of Law, dated April 4, 2008 and filed April 7, 2008.

Notice of Entry was delivered to me by first class mail and dated April 7, 2008. I filed my Notice of Appeal with the Clay County Office of Clerk of Courts on April 30, 2008. The above listed documents are provided in the Appendix. Appeal of each of these court decisions is permitted under SDCL 15-26A-3. The Statement of Material Facts is included in the Appendix.

II. Statement of Legal Issues

1. Whether Keating should be sanctioned for his statements concerning the actions of Administrative Law Judge Bingner in his Administrative hearing and decision.

The circuit court held that I should be sanctioned.

RELEVANT CASES AND STATUTES
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992)
Warth v. Seldin, 422 U.S. 490, 501 (1974)
SDCL 15-6-11(b)
SDCL 15-6-11(c)

2. Whether USD should be awarded disbursements for its expenses incurred as a result of Keating’s appeal hearing.

The circuit court held that disbursements should be awarded to USD.

RELEVANT CASES AND STATUTES
Farrar v. Hobby, 506 U.S. 103, 111 (1992)
Michlitsch v. Meyer, 1999 SD 69
Nelson v. Nelson Cattle Co., 513 NW2d 900, 906 (SD 1994)
SDCL 15-17-37
SDCL 15-6-54(d)

III. Statement of Case and Facts

This appeal concerns two decisions by Circuit Court Judge Stephen Jensen involved in my case CIV 06-307, which is currently on appeal before this Court. These two decisions involve sanctions and disbursements and resulted from my appeal to the circuit court concerning the decisions of Administrative Law Judge Randy Bingner on my grievances and unfair labor practice complaints against the University of South Dakota (USD) and James Abbott.

As part of my issues on appeal I alleged that Judge Bingner had violated proper judicial procedures in several specific instances. On January 31, 2007, the attorney for USD, Robert Frieberg, filed a motion for sanctions with the circuit court. No prior notice was provided to me. I resubmitted my issues on appeal without any reference to any alleged wrongdoing by Mr. Frieberg, but kept my issues on appeal concerning Judge Bingner. In a May 2007 telephone hearing, Judge Jensen scheduled a hearing on my appeal for July 17, 2007 and instructed me to provide evidence to substantiate my claims at that hearing.

A partial transcript of this hearing (“Transcript”) is included in the appendix that shows I addressed these issues, as instructed.

The court found for me on one count, but held against me on all others. After the court announced its decision USD renewed their request that I be sanctioned and this request was granted by Judge Jensen. Further, USD requested disbursements for expenses related to the hearing, which were also granted.

IV. Legal Argument:

1. Introduction

USD filed a motion for sanctions, but failed to follow the procedures required by law. Specifically, they failed to provide me with the 21 day advance notice required by the South Dakota Codified Law. Further, they never cited the specific conduct that I should be sanctioned for, instead substituting vague generalities. They never presented any evidence that any statement on my part rose to the level required by the Codified Law, and never presented any legal arguments. And, above all else, they never showed that they had been damaged in any way and they failed to show they had any standing to make such a motion.

USD also filed a motion for disbursements, but they were not the prevailing party in this hearing and are therefore not entitled to disbursements. The court found in my favor on a substantive issue, making me the prevailing party. Further, the court awarded costs incurred before my action even began and could not have been incurred as a result of my appeal.

2. Sanctions

I am seeking a stay on the referenced matter for each of the following reasons:

A. Standing.

The university has shown no legal standing in the matter of sanctions and has suffered no injury. In order to have the legal right to initiate a legal action, a party must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.

There are three requirements to have standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative [Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992)]. The party initiating the legal action bears the burden of establishing each of these elements. Id. In deciding whether the university has standing, a court must consider the allegations of fact contained in the university’s declaration and other affidavits in support of their assertion of standing (See Warth v. Seldin, 422 U.S. 490, 501 (1974)).

Standing is founded “in concern about the proper–and properly limited–role of the courts in a democratic society.” (Warth, 422 U.S. at 498). Someone who seeks injunctive or declaratory relief “must show `a very significant possibility’ of future harm in order to have standing to bring suit.” (Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990), cert. denied, 112 S. Ct. 875 (1992)).

At no time has the university claimed they suffered any injury and have failed to meet their burden of proof in regard to the standards of Lujan and Nelson, as well as all other standards described above. They, therefore, have no standing on this matter and consequently, they have no legal right to initiate a legal proceeding.

B. Burden of Proof.

My statements included in my brief to the court of January 9, 2007 are based on Judge Bingner’s decision of October 13, 2006 and his order of October 23, 2006. My statements are specific and factual, as shown in the transcript of the July 17, 2007 hearing (Transcript, page 39 – 50). These instances do not constitute opinion, but are documented factual events.

The merit of my case is shown by the fact that the circuit court found in my favor on the issue of years of service as of June 2004. A case cannot be considered meritless when the court finds in favor of the plaintiff based on the merits of the evidence.

The burden of proof rests on the university to prove their case to the court and they have failed to accomplish this task. USD never gave specific instances of my conduct that they claim raised to the level requiring sanctions. Their claim is, at all times, vague and unspecific.

The university submitted no evidence to support their claim or to refute anything in my brief and, at no time did the university show that their claim is based on any legal evidence or legal argument. Indeed, the university’s entire argument is that they just didn’t like what I said in my appeal. This is not a legal argument, it is not legal evidence, and it does not rise to the level of activity required of the South Dakota Codified Law. Vague, unsubstantiated claims are insufficient to satisfy their burden of proof. The university is not due a decision as a matter of law.

C. Improper Procedure.

The university is seeking relief under SDCL 15-6-11(c), which allows for the court to consider a motion for sanctions. This statute allows the university to file a motion for sanctions and states (in part), “It shall be served as provided in § 15-6-5, but shall not be filed with or presented to the court unless, within twenty-one days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”

The university’s motion, filed with the court on January 31st, 2007, states that it was served on me the same day. This is in violation of the law in that it was filed before the twenty-one days required by SDCL 15-6-11(c).

The university has shown no cause whatsoever, at any time, that there is an overbearing need for relief from the legal requirements of SDCL 15-6-11(c). There was no obstacle to prevent the university from refiling their motion in compliance with the statutory requirements and the court was in error when it accepted the university motion. In this way, the court denied me my rights under the law and the court was in error when it accepted the motion for sanctions.

The university’s motion states that my claims “are not based upon reasonable inquiry, are scandalous, are intended to embarrass or provoke, and serve no purpose in this proceeding.” SDCL 15-6-11(c) authorizes sanctions for violations of SDCL 15-6-11(b). None of these alleged offenses are violations of SDCL 15-6-11(b) and I was not accused of any violation of SDCL 15-6-11(b), therefore the university’s call for sanctions is baseless.

D. Meritless and Frivolous.

SDCL 15-6-11(b) states: “By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”

The university has provided no legal evidence or legal argument to support their claims. As such, their motion is frivolous and meritless and, since they are requesting monetary penalty, was done for malicious purposes. The university has presented their motion for sanctions for the improper purpose of harassing me and to cause the delay of my appeal by several months. Their own motion has shown that their action has resulted in an increase in the cost of litigation. By filing their frivolous and meritless motion, the university is in violation of SDCL 15-6-11(b). Mr. Frieberg has stated that if Dr. Keating were a lawyer he would certainly be subject to sanctions. Mr. Frieberg is a lawyer and he has violated the regulations and laws in this matter and I am requesting the court sanction Mr. Frieberg for his actions.

I have presented to the court an abundance of evidence and legal argument that my claims were justified under color of law and that there were no improper purposes involved. The university, on the other hand, has provided no supporting evidence, documentation, or legal argument to support their claims.

The university ostensibly submitted their motion to prevent future legal actions by me, although there were no indications that I had any intention of doing so. By their own actions, the university has increased the amount of legal actions and associated expenses. The university should be forced to bear the burden of their own expenses for filing a meritless and frivolous motion.

3. Disbursements

A. Entitlement.

The university is not entitled to costs and disbursements as a matter of law. SDCL 15-17-37 and SDCL 15-6-54(d) authorize the prevailing party to recover disbursements. However, I was the prevailing party in this litigation; therefore the university is not entitled to recover any costs.

The court found in my favor when it ruled that I had less than four years of service as of June 2004. This was my claim at all times in my grievance and legal actions on this matter. This figure was disputed by the university, the Board of Regents, and the administrative law judge before the circuit court reversed those decisions. I am now due the settlement required by the collective bargaining agreement on this matter.

The United States Supreme Court has held that to qualify as a “prevailing party” for the purposes of attorneys’ fees a plaintiff “must obtain an enforceable judgment against the defendant from whom fees are sought.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). A party “prevails” when he wins actual relief on the merits which has the effect of altering the legal relationship between the parties in a way that is beneficial to the plaintiff (Id. at 111-12). The court’s decision concerning my years of service is an enforceable decision that now allows me to pursue the settlement due me under the terms of the COHE agreement. This is part of my appeal to the South Dakota Supreme Court.

By its decision, the court granted me relief on the merits and has resulted in an alteration of the legal relationship between the parties in a way that is beneficial to me. As such, the university did not prevail and is not entitled to recover any disbursements. I was the party entitled to do so and chose not to.

B. Innocence.

In Michlitsch v. Meyer, 1999 SD 69, the South Dakota Supreme Court said, “The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial, … These expenditures are termed “disbursements[.]” Clearly, SDCL 15-17-37 does not provide the court discretion to deny the recovery of disbursements. However, the court is granted such discretion in SDCL 15-17-52 and SDCL 15-17-53. Here, when denying recovery, the court stated “I find no innocence on either side[.]” The record supports the court’s statement. Therefore, we cannot say that the trial court’s denial was clearly against reason and evidence or that a judicial mind, in view of the law of the circumstances, could not have reasonably reached the same conclusion. We find no abuse of discretion.”

The university has shown they have no innocence in the matter before the court by consistently and continuously resisting all attempts by me to resolve the dispute. My attempts to resolve the dispute are well documented and date all the way to August 2003 before filing my original grievance of September 2003 that led to my dismissal. All of my attempts have been ignored by the university and there has been no effort or offer on the part of the university to resolve the situation. As employers, it was their contractual and legal responsibility under the COHE agreement to attempt to resolve all disputes and grievances to keep them from ending up in courts. By ignoring my actions and by failing to make any attempt to resolve the issues before it, USD forced me into the situation where I had no choice but to pursue legal actions. In this, and other matters, the university has consistently shown guilt in the matters before the court and, by the ruling of the South Dakota Supreme Court, is not entitled to recover disbursements.

C. Invalid Expenses.

The university list, among their disbursements, a charge dated “8/17/05” for “Deposition Transcript” for “$672.06” and a second charge dated “12/27/06” for “Copies” for “$270.00.” The university is not entitled to these disbursements because both of these occurred before my action, which occurred on January 9, 2007. SDCL 15-17-37 states expenditures may be recovered if they are ‘necessarily incurred in gathering and procuring evidence or bringing the matter the trial.” Since the university is seeking disbursements incurred as a result of my January 9, 2007 brief, it cannot have incurred any expenses prior to when my brief was filed. These expenses were both incurred as a result of prior legal actions and were not incurred to bring this legal action to trial.

SDCL 15-6-11(d) states “Sections 15-6-11(a) through 15-6-11(c) do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of §§ 15-6-26 through 15-6-37.” The specific expenses the university is citing were incurred under SDCL 15-6-27(a). As such, the university is not authorized these disbursements or to any disbursements entailed before my action. SDCL 15-37-37 says only those expenses specifically authorized by statute may be taxed as disbursements, and although the trial court has some discretion, it must use cautious restraint within the statutory specifications. Nelson v. Nelson Cattle Co., 513 NW2d 900, 906 (SD 1994).

V. Summary and Remedy

In filing its motion for sanctions without waiting the required 21 days, USD acted in violation of the law and the circuit court was in error to accept the motion. Further, they never cited the specific conduct that I should be sanctioned for and never satisfied their burden of proof. They never presented any evidence that any statement on my part rose to the level required by the Codified Law, and never presented any legal arguments. And, they never showed that they had standing to make such a motion.

USD was also awarded disbursements for costs incurred as a result of my appeal to the circuit court, but they were not the prevailing party in this hearing and are therefore not entitled to disbursements. Further, the court awarded costs incurred before my action even began and could not have been incurred as a result of my appeal.

As a result, I am requesting the Court to grant me the following relief:

• The Court dismiss these decisions of Judge Jensen in their entirety;
• The Court find that USD acted in a frivolous and malicious manner;
• The Court orders that USD may not file any additional motions against me for any reason without prior approval.

WHEREFORE Christopher Keating prays that the Court considers his appeal, reverses the decision of the First Circuit Court, and grants him the requested relief.
Dated this 13th day of June, 2008

Christopher Keating

I certify this brief contains 2573 words and 12,464 characters. This count excludes the table of contents, table of cases, jurisdictional statement, statement of legal issues, any addendum materials, and any certificates of counsel do not count toward the limitations.

Dated this 13th day of June, 2008

Christopher Keating
__________________________________________________________________
CERTIFICATE OF SERVICE
Copies of the above Notice were served by first class mail, postage prepaid, addressed to: Robert B. Frieberg, Frieberg, Nelson & Ask, L.L.P., on this 13th day of June, 2008.

Dr. Christopher Keating