Tales From The Travels

I’ve made several postings here to tell my story about the legal fight I have with the University of South Dakota. The reason is that if you were to do a search on my name and USD you would find a great deal of material about this fight and most of it makes me sound like the greatest malcontent to ever walk through the halls of academia. This is my effort to show there are two sides (at least!) to this story.

Actually, the fact that they are trying to make me look so bad is a major part of my legal argument. One of their big problems is that, while claiming I was this terrible person, they have never been able to produce any evidence to support this claim. Instead, what I’ve been able to show is that during the period of time they say I was being so terrible, they were actually writing several documents praising me and my work. There is a major disparity in their story and this is legal evidence that they are dissembling. This isn’t the only problem they have, but it is a glaring one.

Now, they have several other glaring problems. Namely, they simply have failed to respond to my claims and arguments. I made several arguments to the South Dakota Supreme Court and I recently received the Bad Guy’s reply to my appeal brief. They used less than 35% of the allowed room for their response and did not even mention several of my arguments. Not even a single word!

Now, normally this would be a major legal problem and I would win by default. So, am I expecting a favorable decision from the SD Supreme Court? Let me give you a couple of facts to let you know which way I’m leaning. First, one of the lawyers defending USD is the daughter of one of the justices on the SD Supreme Court. Second, I received the Bad Guy’s motion for expenses the other day. Only the side that prevails is allowed to ask for expenses and they didn’t even wait for the court to make it’s decision.

So, I’m checking out the procedures on how to appeal to the federal appeals court. This is what I was aiming for from the beginning.

So, below is my reply to their rebuttal, included in its entirety (without addresses and phone numbers) for your viewing pleasure.

**************

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 )

APPEAL FROM THE CIRCUIT COURT
FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA

The Honorable Stephen R. Jensen, Presiding Judge

Appellant’s Reply Brief

Appellant:
Dr. Christopher Keating, Pro Se

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

Represented by:
Robert B. Frieberg, Frieberg, Nelson & Ask, L.L.P.,

Date of Notice of Appeal: February 1, 2008

Table of Contents

Table of Citations Page 3
I. Introduction 4
II. Appellant’s Reply Argument 5
III. Summary and Conclusion 18

Cases
Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) 18
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) 10
COHE agreement 4, 5, 7, 8, 15
McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 116-17 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987) 18
Pickering v. Board of Education, 391 U.S. 563 (1968) 9, 16
Rankin v. McPherson, 483 U.S. 378 (1987) 16
Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed 20
SDCL 19-14-10. (Rule 608(b) 12
SDCL 19-14-9. (Rule 608(a) 11
SDCL 3-3-4 16
Vollmer v. Akerson, et al., 2004 SD 111 17

Introduction:

The University of South Dakota (USD) has taken the defense that I was the biggest malcontent to ever walk through the doors of academia. But, there is no documentation to support its claim. The evidence shows that USD never counseled me, never disciplined me, never warned me, never marked me down on my annual performance evaluations, and never implemented any of the remedial steps provided for in the collective bargaining agreement (the COHE agreement). The university has two problems with its claim: 1) There is no evidence to support the claim I was a malcontent; 2) The overwhelming evidence shows that I was regarded very highly. If I was as big a malcontent as USD claims, my supervisors had a responsibility to document that conduct and to appraise me that my conduct would lead to my termination. Neither of these actions occurred.

What is shown with the university’s Reply Brief is:
• USD does not dispute that the civility clause in the COHE agreement is unconstitutional.
• USD does not dispute that it was a violation of my free speech rights to apply the civility clause to me while I was in my own home and on my own time.
• USD does not dispute that it engaged in retaliation.
• USD does not dispute that it applies the COHE agreement inequitably.
• USD does not dispute that it denied me my due process rights.
• USD does not dispute that the contract says the university owes me $126,139.86 in late notice penalty fees.
• USD does not dispute that it violated my rights as a veteran under South Dakota Codified Law.

Appellant’s Reply Argument:

Appellees’ Reply Brief, submitted May 22, 2008, was submitted in response to Appellant’s Appeal Brief (Appeal Brief), submitted April 8, 2008. The following arguments are provided in response to this Reply Brief.

On page 3 – “…but held that Keating failed to meet his burden that there was prejudice to him…” USD goes on to say that I was “subject to and governed by …. the terms and conditions of the agreement between the South Dakota Board of Regents and the Council of Higher Education…. the “COHE Agreement”. Accordingly, paragraph 8.6.4 of the COHE agreement states:

If the administration is late in providing the notice stipulated in 1 or 2 above, the faculty unit member will be entitled to receive, at the election of the administration, either (1) an additional term contract for a period of time equal to twice the number of working days by which the notice is late; or (2) a payment equal to twice the number of working days by which the notice is late times the faculty unit member’s monthly salary divided by twentytwo (22).

It is very clear from this that the payment is due because USD was late providing me with notice that my contract was being nonrenewed and I don’t need to show there was any additional prejudice or injury. By USD’s very argument, I was subject to the terms and conditions of the contract and the contract stated I was due, at their election, either a one-year contract or a cash payment. By choosing to not offer me a one-year contract, USD was electing to provide me with a cash payment (Appeal Brief, ‘Grievance 3’).

On page 6 – “Keating’s conduct in the department where he was employed was uncivil and disruptive.” The university has, at all times, failed to produce any evidence to support any such claim (Appeal Brief, page 22). I showed in my Appeal Brief (Appeal Brief, page 22, under ‘Grievance 2’ and references therein) that I was regarded as a model faculty member prior to my grievance of September 2003. Further, I also showed (Appeal Brief, page 19) my comments concerning my supervisor were never made at work; they were made in the privacy of my own home and on my own time. No evidence has ever been presented that I made any disrespectful or disruptive comments within the workplace.

What is most interesting is the way the university has fought to keep the notes of Roberta Hakl out of the record. Hakl conducted an in-depth investigation of my 2003 grievance against Keller (Appeal Brief, page 10). If I was as bad as the university is claiming, it would be expected that Hakl’s notes from her investigation would show this. Yet, the university has never introduced these notes and has defied all subpoenas to produce these notes.

The reference in this paragraph to my supervisor being a female appears to be introducing a new factor into the dispute. If so, it is irresponsible and borders on libel. No evidence or claims have ever been introduced that Keller’s gender was ever a factor in this dispute. This comment is not pertinent or relevant to this case and appears to be an attempt by USD to make my case an issue of sexism. By making this comment, USD is attempting to change its story yet again, as I stated it would (Appeal Brief, page 21, under ‘Grievance 2’).

Page 6 – “There is no dispute that the procedural steps required under the COHE Agreement regarding non-renewal of a contract were followed.” This is a false statement. The proper procedures were followed only for non-renewing my contract for the one violation of my April 24, 2004 email. There were no procedures followed for a charges of being “uncivil and disruptive,” or for being “uncooperative, disrespectful to supervisors” or for any other offense. I did not receive, at any time, any notification of any such charges, and I was never permitted any opportunity to address any such charges. These steps are required under the procedural steps under the COHE Agreement. Additionally, the civil court has already found USD violated procedural steps required to nonrenew a faculty member with my number of contract years (Appeal Brief, ‘Grievance 3’, beginning page 22).

Page 8 – The university points out section 7.8.2 of the COHE agreement and states that grievance review is limited to determining whether the decision was the result of failure to follow procedures. This Court is not thus limited and may review the decision on any basis. But, with my comments concerning page 6 (above) and page 9 (below), I have shown the university failed to follow procedures.

Page 9 – USD goes on to say, “Keating concedes that these procedural requirements were met.” This statement is not true. USD informed me they were considering me for nonrenewal due to violating the civility clause and that members of the administration met with me (Appeal Brief, page 13). However, I have shown USD made numerous procedural errors under the COHE agreement in the process, including:

• USD committed a violation of the time limit required for notification of non-renewal.
• USD’s claim that I was a ‘long-term problem’ was a not given as a cause of action and I was not allowed to defend myself against any such charge.
• USD engaged in retaliation (Appeal Brief, ‘Grievance 2’).
• USD engaged in discrimination (Appeal Brief, ‘Grievance 5’)
• USD violated my constitutional rights by attempting to regulate what I say at home, in private, and on my own time.
• USD nonrenewed me under the civility clause which is unconstitutional.
• USD violated South Dakota Codified Law protecting veterans from removal from their employment.

Thus, I have shown there were numerous procedural errors and I am entitled to a favorable decision as a matter of law on each of these points.

Page 9 – “The Administrative Law Judge specifically found that Keating “…failed to prove the existence of any cause or connection between his filing or participating in a grievance and the subsequent non-renewal of his contract.”” This statement does not constitute a denial on the part of USD and the university is not disputing my claim with it. I have provided substantial evidence that USD engaged in retaliation, including Abbott’s email regarding my conversation with the state attorney general’s office, and a timeline showing a casual relationship between my 2003 grievance and their actions (Appeal Brief, beginning on page 18 under ‘Grievance 2’). I have shown that USD began a series of adverse treatments immediately after I submitted my 2003 grievance, culminating in my dismissal. The university has never rebutted this argument, never disputed the evidence, and has never presented an alternative explanation for the timeline of events. Accordingly, I am entitled to a favorable decision as a matter of law on this issue.

Page 10 – “Although the reasons for his non-renewal included a lack of civility he has focused on this single statement …” I have referred to this single statement because this is the one and only cause of action provided for my dismissal and no other cause of action was provided to me. All other claims by the university have been manufactured after the fact and have not been supported with any documentary evidence (Appeal Brief, ‘Grievance 1’ and ‘Grievance 2’).

Page 10 – The administration continues to invoke Pickering v. Board of Education, 391 U.S. 563 (1968). I have established the argument that Pickering does not apply to this dispute and USD has failed to rebut this argument. Further, Pickering deals with disruptive conduct, and I was never charged with disruptive conduct so, again, Pickering does not apply (Appeal Brief, ‘Grievance 1’ and ‘Unfair Labor Practice #1’).

At no time did the university address the issue of the constitutionality of the civility clause speech code or the extensive prima facie case on this subject that I have presented to the court (Appeal Brief, ‘Unfair Labor Practice #1’ and ‘Brief on the constitutionality of the civility clause of Appendix G of the COHE agreement,’ starting on page A-93 of the appendix). USD has not disputed the evidence, the arguments, or even responded. Neither has the university addressed the argument that it was unconstitutional to apply the civility clause to me in the privacy of my own home. Accordingly, this issue is not in dispute and I am entitled to a favorable decision on both of these issues as a matter of law.

Page 12 – “Despite his numerous contentions, he fails to cite one fact in the record to support the claim that the administrative agency erred, except his own unsubstantiated opinions.” and “…Keating has consistently failed to distinguish between his own opinions and genuine evidence of the facts surrounding the non-renewal of his contract.”

The record before the court shows that two-thirds of all evidence introduced was submitted by me. This evidence includes favorable faculty performance evaluations, department newsletters praising my work, letters of recommendation for early promotion, emails, and testimony by administration personnel. My claims are well supported by the collective bargaining agreement, written Regental policy, South Dakota Codified Law, the South Dakota Constitution, numerous court precedents, and the U.S. Constitution. This documentation before the court does not represent opinion, but fact. USD, on the other hand, has failed to introduce any documentary evidence of any sort to support its claim. USD’s claims have no supporting evidence or court precedent.

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) the court stated, “An essential principle of due process is that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.”” There is no documentation that I was provided an appropriate hearing.

Page 12 – “Keating is (a) not a credible witness; (b) was using the grievance proceedings to punish the people involved; (c) presented no evidence nor any witnesses to support his numerous claims and allegations; (d) failed to present evidence to support his claims of retaliation; (e) was disruptive in the physics department where he worked; (f) was disrespectful to his supervisors; and (g) was a troublemaker who blamed others for the result of his own bad conduct.”

Part (a) – This statement was made without due process or evidence. The record shows that I am a commissioned officer in the U.S. Navy Reserve, with a Top Secret clearance based on a Special Background Investigation, and have served with distinction for over 30 years. Judge Bingner also ignored that nearly all of my testimony was corroborated by members of the administration that I called to testify.

South Dakota Codified Law is clear about impeaching the credibility of a witness:

SDCL 19-14-9. (Rule 608(a)) Opinion or reputation on character of witness. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) The evidence may refer only to character for truthfulness or untruthfulness; and
(2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

And,

SDCL 19-14-10. (Rule 608(b)) Specific conduct bearing on credibility of witness. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in §§ 19-14-12 to 19-14-16, inclusive, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:
(1) Concerning his character for truthfulness or untruthfulness; or
(2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

At no time has my credibility ever been challenged. At no time have I ever been given any due process to defend my credibility. At no time has any evidence ever been introduced to challenge my credibility. Judge Bingner denied me due process, and violated my civil rights under the law with this statement. If, at any time, the courts or the administration would like to examine my credibility under the proper procedures of the law, I will be more than willing to accommodate them and, if given my due process under the law, I will prove to be credible in all that I say. USD is well aware of the requirements of the law and has violated my civil rights by including this statement, which it knows to be untruthful and unlawful, and has further demonstrated its malicious intent.

(b) At the January 2006 hearing before the Department of Labor, Mr. Freiberg asked me while I was on the witness stand if I felt punishment was part of the judicial system and I stated that I felt it was. I did not, at any time, indicate that I was using the grievance proceedings to ‘punish’ anyone. If my proceedings lead to guilty parties being punished, then that is part of the judicial process, but it is not within my authority or ability to take any such action. This is within the purview of the courts only. My thoughts on this matter, stated in January 2006, do not in any way excuse or authorize the actions of the university in June 2004. USD cannot claim it took its actions in June 2004 as a result of my statement 18 months after the fact.

(c) In fact, as stated above, the court record shows that two-thirds of all evidence presented to the court was presented by me (Appeal Brief, page 20). These documents I provided were written by the members of the university administration. Also included was the June 9, 2004 letter from the Vice-President for Academic Affairs stating I was being considered for non-renewal for the only offense of violating the civility clause.

Witnesses I called and corroborating evidence they provided include (refer to court documents ‘Argument in Support of Petitioner’, of February 22, 2006; and ‘Petitioner’s Rebuttal to Respondent’s Post-hearing Brief’, of March 7, 2006):

• Dr. Christina Keller, Director of the Physics Program who confirmed that she marked me down on my evaluations after I filed my grievance of 2003 and did so in violation of the COHE agreement; that she had never warned me that I was a disciplinary problem or that I was at risk of being non-renewed; that I had received excellent marks on my faculty performance evaluations prior to my 2003 grievance; that I had never been disciplined or counseled; that I had approached her on multiple occasions to resolve problems in the department and that she had refused to respond; that she began observing me in the classroom only after I filed my 2003 grievance.
• Dr. Timothy Heaton, Chair of the Earth Science and Physics Department who confirmed that he knew of no time I had been counseled or disciplined; that he warned me that I had taken a ‘grave personal risk’ after filing my 2003 grievance;
• Dr. Donald Dahlin, the Vice President for Academic Affairs at the time of my non-renewal, who confirmed that I was non-renewed for the one and only reason that my email of April 24, 2004 was a violation of the civility clause; that he had never been made aware that I was ever a disciplinary problem.

(e) The evidence provided to the court showed exactly the opposite. What was also shown the court was that there were no documents at all that showed I was ever disruptive in the department.

(f) No evidence or testimony was ever produced that showed I was ever disrespectful to my supervisors at work. Further, this was never a cause of action in my nonrenewal. Any claim that I was disruptive is as pertinent as saying they didn’t like the kind of sandwich I ate for lunch. It is simply not a factor in my nonrenewal and they cannot manufacture this claim after the fact.

(g) Nothing in the testimony or evidence ever showed I was a ‘troublemaker’ or that I blame others for my own mistakes. To the contrary, the evidence and testimony showed that when I make a mistake, I step forward, admit it, and take full responsibility for my actions. Further, the same argument as above applies here in that none of this was ever provided as a cause of action and is not pertinent. The university is, once again, manufacturing a cause of action after the fact.

If I was as bad as claimed, why is there no evidence to support these claims?

Page 13 – “For instance, he takes the position that non-renewal is a disciplinary action despite the plain language of the COHE Agreement…” This is a false statement and I have never stated that nonrenewal was disciplinary. What I have claimed is that USD was acting in a disciplinary manner and using the nonrenewal clause of the COHE agreement to sidestep my legal rights under the contract and to deny me my due process rights. The university has consistently claimed that their action was non-disciplinary, yet USD has invoked Pickering to justify their action. However, Pickering is a disciplinary action and USD cannot claim it acted in a non-disciplinary manner when invoking it. The university’s use of the nonrenewal procedures of the COHE agreement for disciplinary reasons denies faculty members their due process rights allowed for under the contract and guaranteed by the 14th amendment and other laws.

Additionally, by denying this was a disciplinary action the university has put themselves in a position of admitting they violated my free speech rights. In Rankin v. McPherson, 483 U.S. 378 (1987), Justice Marshall wrote: “It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” They can only justify my speech by claiming I was a malcontent and invoking Pickering, which is disciplinary, which means they denied me my disciplinary action due process rights. If the action was not disciplinary, then they cannot invoke Pickering and they have no justification for using my speech as a cause of action for nonrenewal.

Page 13 – Concerning my veteran status, there is no need to show that my veteran status was involved with my nonrenewal. All I have to show is that their actions resulted in a violation of my rights under the law. SDCL 3-3-4 clearly states that you cannot remove a veteran from his position of employment without the required due process (Appeal Brief, ‘Grievance 5’). I am a veteran, I was removed from my employment, I was not given the required due process, and I was not replaced by a veteran, as required by the law. The university has failed to show how it is exempt from the SDCL. And, by violating the SDCL they were in procedural error when they nonrenewed by contract. USD has not rebutted my argument or provided any evidence to the contrary. Therefore, this point is not in dispute and I am entitled to a favorable decision under the law.

Page 14 – As I noted in my reply to their page 3 comments (above), there is no requirement for me to show any loss in order to receive the penalty due to late notice of nonrenewal. The payment is a provision of the contract and due to me because of the actions on the part of the administration. The penalty for the late notice is due to me as a matter of law because they were late in their notice, not because I suffered any loss. The South Dakota Supreme Court ruled that ambiguity cannot be introduced where none previously existed. Vollmer v. Akerson, et al., 2004 SD 111, saying: “Here, the contract is unambiguous and clear. There is no ambiguity and one was not created merely because Appellees offer a different interpretation of the contract.”

Page 15 – SDCL 3-18.15.2 refers to the Department of Labor only and does not refer to the unified courts. The South Dakota Supreme Court has the authority to order the relief I have requested and I am due this relief because I was illegally denied promotion and tenure because of the nonrenewal of my contract.

V. Summary and Remedy

USD has based its defense on unsupported statements and self-conflicting arguments. They have not even disputed several of the issues before this court. USD is basing its defense on the idea that if it says I was a malcontent enough times, it will be believed, even without any supporting evidence. The court precedents do not support USD in this matter.

In the case of Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) the plaintiff did not receive any indication of performance problems until his final performance review. Even then there was no documentation he was informed he was at risk of being terminated. The court concluded that these omissions in the appraisal process by the company constituted “negligence in the evaluation and discharge of Chamberlain without giving him prior notice of the intent to discharge him.” Further, the court stated, “[A] reasonable person, under the circumstances of this case, would have told Chamberlain that discharge was being considered, or was possible, without a rapid and drastic change in his job performance.” By failing to place accurate written documentation about Chamberlain in his personnel file and also to notify him about his unsatisfactory performance, the employer was found liable for wrongful discharge.

In McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 116-17 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987), the plaintiff prevailed against his former employer because of prior positive performance evaluations and an absence of any written documentation in the personnel records that demonstrated any adverse performance. The employer contended that the basis for the termination was a series of poor working relationships between McNeil, his coworkers, and customers. After the trial court dismissed these contentions as merely pretextual, the appellate court affirmed that decision, noting that “the conduct to which [the] defendant refers should be accorded little weight because it … was not thought to be serious enough to be recorded in his monthly or yearly appraisals.”

In both McNeil and Chamberlain, the employers were found liable partly because they failed to discuss alleged performance deficiencies with the employee, thereby giving them no opportunity to correct the problems. In McNeil, the court observed that in addition to the lack of written documentation in his performance appraisal about deficiencies, there were no warnings by McNeil’s supervisor “that his conduct would not be tolerated.” In Chamberlain, the court concluded that the firm’s failure to tell him about his problems, advise him of its intent to terminate his employment, and inform him what he might do to save his job was itself actionable negligence, which enabled the plaintiff to prevail in the discharge litigation. As to the employer’s withholding information in the evaluations, the court wrote that the appraiser “was in a position to eliminate all doubt concerning Chamberlain’s status, and, further, to provide Chamberlain with the greatest possible incentive to reform his conduct and improve his performance. There was no reason for [the appraiser] not to take the necessary step of informing Chamberlain, and his failure to do so may properly be labeled as negligent in the circumstances of this case.”

If I was as big a malcontent as USD claims, my supervisors had a responsibility to document that conduct and to appraise me that my conduct would lead to my termination. The evidence before this court shows that neither of these actions occurred.

Further, the record shows that the university has twice changed its argument since my contract was nonrenewed (Appeal Brief, pages 19-22, under ‘Grievance 2’). In Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed, the Court reviewed the case of an employee that claimed he was dismissed because of age discrimination. It was shown that the employer kept changing its story, and it was ruled that this was evidence of guilt on the employer’s part. The court ruled that by changing its story, the employer was dissembling to cover its true motives.

Either the court believes the university, or they believe me. If the court believes USD, then the university is negligent in its duties and I am due a favorable decision under Chamberlain and McNeil. If the court believes me, then USD is dissembling and I am due a favorable decision under Reeves. Either way, I am entitled to a favorable decision under the law.

The administration has failed to rebut my prima facie cases and has not been able to present any documentary evidence to support its claims, this despite the fact that it has conducted a considerable amount of discovery and has access to all witnesses and documents within the possession of the university. The university’s argument is neither credible nor plausible.

Since USD has not rebutted my claims or objected to the evidence, there is no dispute concerning the facts and I am entitled to a favorable decision as a matter of law.

It is undisputed that the civility clause in the COHE agreement is unconstitutional.

It is undisputed that USD violated my free speech rights by applying the civility clause to me while I was in my own home and on my own time.

It is undisputed that USD engaged in retaliation.

It is undisputed that USD applied the COHE agreement inequitably.

It is undisputed that USD denied me my due process rights for disciplinary actions.

It is undisputed that USD owes me $126,139.86 in late notice penalty fees.

It is undisputed that USD violated my rights as a veteran under South Dakota law.

The requested relief was not disputed or objected to by USD.
WHEREFORE Christopher Keating prays that the Court herein considers his appeal, reverses the decision of the First Circuit Court, and grants him the requested relief.

Dated this 3rd day of June, 2008

Christopher Keating

I certify this brief contains 4604 words/22,847 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 3rd day of June, 2008

Christopher Keating
__________________________________________________________________
CERTIFICATE OF SERVICE
Two copies of the above Brief were served by first class mail, postage prepaid, addressed to: Robert B. Frieberg, Frieberg, Nelson & Ask, L.L.P., on this 3rd day of June, 2008.

Dr. Christopher Keating