Tales From The Travels

So, the South Dakota Supreme Court dismissed my appeal in Keating v. James Abbott and the University of South Dakota without an opinion, merely stating that it had no merit. This created a very interesting situation. The heart of my appeal was that the civility clause is unconstitutional. Now, my appeal has gone through the entire South Dakota judicial system without any comment at all on the principle issue. It isn’t that they issued an opinion that I disagreed with, they simply did not issue any opinion at all.

I’m actually glad that it was dismissed this way. My main concern during this whole fight was that the bad guys would make a strong case for why I was wrong. I would then be stuck having to find a way to refute their arguments. As it is, they were unable to make any comment or counter-argument.

The next question after I received the court’s statement was how I was going to proceed from there. I already knew I was going to the U.S Supreme Court. The fact is, I was told years ago that the only chance I had was to get it into the federal courts. I used the SD court system to force the bad guys to put their arguments in writing before the court and to present their evidence. I also used the time to develop my own argument and collect my evidence. All in all, it worked out exceptionally well, almost exactly the way I envisioned it back in the summer and fall of 2004 when I first started this fight. I was hoping (always the optimist, even in the face of overwhelming odds) that some decisions would go my way. As it is, one decision actually did and I’m using it to full extent. I’m sure Judge Steven Jensen is upset that I’m using his decision in my favor, because that isn’t what he wanted to achieve. But, bad judges should be more careful when they rule in opposition to the law and evidence. It can come back to haunt you.

No, the question wasn’t whether or not I was going to the U.S. Supreme Court, but how I was going there. My plan all along was to find someone to represent me at this stage. Once I got the decision from SD, I went shopping for a lawyer. That is when I became disappointed. Most of the lawyers I talked to weren’t interested because there wasn’t enough money involved. They told me they could make more money doing something else. Then, the ones that were willing to take my case failed to impress me. I would have conversations with them, telling the history of my case and they would not know any of the court precedents involved. Or, if they did, they hadn’t read them and didn’t know what they said. I would talk to them about these court cases and they would just be in the dark. Universally, I was unimpressed with them. I thought, ‘Well, they could study and become familiar with everything.’ But, I remember a lawyer I talked to in South Dakota. He was interested in taking my case and we went through everything. Finally, he looked at me and said, ‘I don’t understand why you’re looking for a lawyer. No lawyer is going to do as good a job as what you’re doing.’

Eventually, I came to the conclusion that I was going to have to proceed on my own. It was true, there was no lawyer that knew the law and evidence in this case as well as I do and there is certainly no one that is motivated the way I am. So, I read the Rules of the Court for the Supreme Court to learn what I needed to do. The first thing is to submit a Petition for a Writ of Certiorari. This is essentially asking the Court to hear your appeal. If the Writ is issued, the Court will tell the lower court to send forward all the documentation on the case for the Court’s review. I studied the Rules of the Court to make sure I was doing everything correctly, and wrote my petition. I submitted it to the Court on Wednesday, December 24. The bad guys will get their copies on Saturday, or maybe Monday. I’m sure it will be an unpleasant Christmas present for them.

So, what now? The bad guys get to respond to my petition and I get to rebut anything new they raise in their response. Then, the Court will decide whether to issue a writ.They can deny the petition for any reason and if they do, it doesn’t reflect on the validity of your case. If they don’t, I get to petition them to reconsider. If they do, I get to submit a brief to the Court, the bad guys get to respond, I get to rebut anything new and then we’ll be placed on the docket. This raises the real possibility that I may get a chance to stand before the nine justices of the U.S. Supreme Court and argue my case. And, that is a very exciting thought.

So, what are my chances? I think they’re good. But, we’ll have to wait and see. Come back for updates.

Now, if you were wondering what a Petition for a Writ of Certiorari looks like, here’s mine.

************************************
No.
In the Supreme Court of the United States
CHRISTOPHER F. KEATING, PETITIONER
v.
JAMES W. ABBOT, in his personal and professional capacities, AND THE UNIVERSITY OF SOUTH DAKOTA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SOUTH DAKOTA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

CHRISTOPHER F. KEATING, Pro Se

QUESTION PRESENTED
1.Whether the civility clause of appendix G of the collective bargaining agreement between the South Dakota Board of Regents and the faculty as represented by the Committee on Higher Education (the COHE agreement) is constitutional.

2.Whether the civility clause was applied against Petitioner in violation of his constitutional rights to free speech.

3.Whether the South Dakota Supreme Court erred in denying Petitioner’s appeal concerning the non-renewal of his tenure-track contract with the University of South Dakota for violating the civility clause.

4.Whether the University of South Dakota retaliated against Petitioner for engaging in protected activity.

5.Other issues surrounding the non-renewal of Petitioner’s tenure-track contract.

TABLE OF CONTENTS
QUESTION PRESENTED 2
Table of Authorities 5
Cases 5
Statutes 7
OPINIONS BELOW 10
JURISDICTION 10
STATUTORY PROVISIONS INVOLVED 11
STATEMENT 19
A. Facts Giving Rise To This Case 19
B. Legal Proceedings 21
REASONS FOR GRANTING THE PETITION 25
CONCLUSION 32

TABLE OF AUTHORITIES
Cases
Brandenburg v. Ohio, 395 U.S. 444 (1969) 9
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S., 126 S.Ct. 2405 (2006) 10
Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) 10
Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996) 9
Connally v. General Construction Co., 269 U.S. 385, 391 (1926) 9
Corry v. Stanford (No. 740309, California Superior Court, Santa Clara County, 1995) 9
Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993) 10
DeJohn v. Temple University, Case No: 07-2220 (2008), Third Circuit Court of Appeals 10
Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989) 9
Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 9
Gooding v. Wilson, 405 U.S. 518 (1972) 9
Grayned v. Rockford, 408 U.S. 104, 108-109 (1972) 9
Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996) 10
Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)) 10
Keyishian v. Board of Regents, 345 F.2d 236, 239 9
Perry v. Sindermann, 408 U.S. 593 (1972) 9
Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-5, 20 L. Ed. 2d 811 (1968) 9
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 9
Rankin v. McPherson, 483 U.S. 378 (1987) 9
Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000) 10
Terminiello v. Chicago, 337 U.S. 1 (1949) 9
Texas v. Johnson 491 U.S. 397 (1989) 9
UWM Post v. Board of Regents of University of Wisconsin, 774 F. Supp. 1163 (E.D., Wis. 1991) 10

Statutes
First Amendment To The United States Constitution 5, 9
Fourteenth Amendment To The United States Constitution 5, 10, 11
SCDL 1-1A-3 11
SDCL 1-1A-1 6, 11
SDCL 1-1A-2 6, 11
SDCL 1-1A-3 7
SDCL 3-18-3.1 7, 8
SDCL 3-3-4 7, 11
SDCL 3-3-5 7
The civility clause of Appendix G 6, 8, 10

In the Supreme Court of the United States

CHRISTOPHER F. KEATING, PETITIONER
v.
JAMES W. ABBOT, in his personal and professional capacities, AND THE UNIVERSITY OF SOUTH DAKOTA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SOUTH DAKOTA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

The Petitioner respectfully petitions for a writ of certiorari to review the judgment of the South Dakota Supreme Court in this case.

OPINIONS BELOW
South Dakota Supreme Court Order Directing Issuance of Judgment of Affirmance, dated October 8, 2008, is reprinted in the Appendix hereto, pp 1.
South Dakota Supreme Court Order Directing Issuance of Judgment of Affirmance, dated November 10, 2008, is reprinted in the Appendix hereto, pp 2.
The opinion of the South Dakota Circuit Court is reprinted in the Appendix hereto, pp 3 – 17.
The opinion of the South Dakota Department of Labor administrative hearing is reprinted in the Appendix hereto, pp 18 – 24.

JURISDICTION
The judgment of the South Dakota Supreme Court was entered on October 8, 2008. The jurisdiction of this Court rests on 28 U.S.C. 1257(a).

STATUTORY PROVISIONS INVOLVED

First Amendment To The United States Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.

Fourteenth Amendment To The United States Constitution

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The civility clause of Appendix G to the collective bargaining agreement between the South Dakota Board of Regents and the university faculty as represented by the Committee on Higher Education (the COHE agreement)

Civility in working with colleagues, staff members, students and others
Universities play a special role in preparing students to lead the complex social organizations through which businesses and professions operate and through which free people govern themselves. Students must be taught, and they must be shown through the example given by institutional employees, that members of stable, effective and prosperous social organizations observe norms of conduct under which all participants treat one another civilly and carry out their respective tasks in a constructive and informed manner. Complex social organizations derive their strength from the cooperation of those who participate in them. By virtue of their special role in preparing future generations of leaders, universities have a particular concern with conduct that destroys the bonds of cooperation and common purpose on which society rests by demeaning members of the community, and such conduct cannot be tolerated in an institution whose very purpose is to shape the skills and conscience of the rising generations.
Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.

South Dakota Codified Law SDCL 1-1A-1.   Unconstitutional state actions void. It is the public policy of the State of South Dakota that every statute, rule, regulation, executive order, and office policy of the State of South Dakota enacted, promulgated, issued, or established in contradiction to the provisions of the United States Constitution, and so judicially determined by a final judgment rendered by the South Dakota Supreme Court, the federal district court for the State of South Dakota, the United States Court of Appeals for the eighth circuit, or the United States Supreme Court, is void within the jurisdiction of the State of South Dakota.

South Dakota Codified Law SDCL 1-1A-2.   Enforcement of unconstitutional policies prohibited. No person may enforce any statute, rule, regulation, executive order, or office policy that is in violation of § 1-1A-1.

South Dakota Codified Law SDCL 1-1A-3.   State officers to protect constitutional rights. Every state officer is directed to utilize the full force and authority of his office to resist the intrusion of such unlawful provisions and to protect the constitutional rights of the State of South Dakota and its individual citizens from the encroachments of such provisions.

South Dakota Codified Law SDCL 3-3-4.   Restrictions on removal of veteran from employment–Hearing and review–Burden of proof. No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment unless replaced by another person of a class to whom preference is herein granted except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by writ of certiorari. The burden of proving incompetency or misconduct shall rest upon the party alleging the same.

South Dakota Codified Law SDCL 3-3-5.   Noncompliance as misdemeanor.
Any person in the public service who shall neglect or refuse to comply with the provisions of this chapter is guilty of a Class 1 misdemeanor.

South Dakota Codified Law SDCL 3-18-3.1, Unfair practices of employers defined
(1) Interfere with, restrain, or coerce employees in the exercise of rights guaranteed by law;
(2) Dominate, interfere, or assist in the formation or administration of any employee organization, or contribute financial or other support to it; provided, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
(3) Discriminate in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any employee organization;
(4) Discharge or otherwise discriminate against an employee because he has filed a complaint, affidavit, petition, or given any information or testimony under this chapter;
(5) Refuse to negotiate collectively in good faith with a formal representative; and
(6) Fail or refuse to comply with any provision of this chapter.

STATEMENT
A. Facts Giving Rise To This Case
Petitioner was a tenure-track professor at the University of South Dakota (USD) from August 1999 to May 2004.
Petitioner was informed in June 2004 that he was being considered for non-renewal of his tenure-track contract under the terms of the collective bargaining agreement between the South Dakota Board or Regents and the university faculty as represented by the Committee on Higher Education (the COHE agreement). Petitioner was informed the charge against him was that he violated the ‘civility clause’ of appendix G of the COHE agreement. Specifically, he made a comment concerning his supervisor in a private email that he sent from his private residence on a Saturday morning during his off hours.
Petitioner met with members of the administration and was informed of the charge and given an opportunity to defend himself against the one charge. No other charge was made and petitioner was not allowed to defend himself against any other charge.
Petitioner was never, at any time, accused of being disruptive in the workplace, no evidence was every produced showing he was disruptive in the workplace, and he was never provided any opportunity to defend himself against any such charges.
The university administration personnel have steadfastly insisted this was not a disciplinary action.
Petitioner’s tenure-track contract was non-renewed and he was given a one-year term contract that expired in May 2005.

B. Legal Proceedings
Petitioner pursued five grievances under provisions of the COHE agreement and two unfair labor practice complaints through the South Dakota Department of Labor under provisions of SDCL 3-18-3.1, Unfair practices of employers defined.
Petitioner’s first grievance claimed the university’s action was actually a disciplinary action and Petitioner was denied his due process rights the 14th amendment and provisions of the COHE agreement. Petitioner’s second grievance claimed the non-renewal of his contract with USD was in retaliation because he engaged in protected activity by filing a grievance in September 2003 against his supervisor for creating a hostile work environment. Petitioner’s third grievance was that his years of service were improperly calculated and, as a result, USD failed to provide him with the proper compensation provided for by the COHE agreement for late notice of his non-renewal. Petitioner’s fourth grievance was that the COHE agreement is not fairly and equitably applied. Petitioner’s fifth grievance claimed he was discriminated against due to his military status and denied protection as provided by law.
Petitioner’s grievances were found in Petitioner’s favor by the faculty review board, but the administration found against Petitioner on all grievances. Petitioner appealed his grievances to the South Dakota Board of Regents, where they were again denied, and then to the South Dakota Department of Labor.
Petitioner’s first unfair labor practice complaint filed with the South Dakota Department of Labor claimed that the civility clause was unconstitutional under the 1st amendment of the U.S. Constitution and other statutes, and the way it was applied against Petitioner was unconstitutional. Petitioner’s second unfair labor practice complaint was the same as the same as his second grievance listed above and claimed his non-renewal as a retaliatory action taken because Petitioner had engaged in a protected activity.
An administrative hearing administered by a South Dakota Department of Labor administrative law judge was held on the campus of USD in January 2006 to hear Petitioner’s grievances and unfair labor complaints. The South Dakota administrative law judge issued his opinion in October 2006 and denied all of Petitioner’s grievances and unfair labor complaints.
Petitioner appealed the decision to the South Dakota Circuit Court and a hearing was held in July 2007. The circuit court issued its decision in December 2007. The court found in Petitioner’s favor on his third grievance concerning his years of service, but denied him the payment due under terms of the COHE agreement. The circuit court found against Petitioner on all other points except Petitioner’s claim concerning the constitutionality of the civility clause. The circuit court did not address this issue in its decision.
Petitioner appealed the decision to the South Dakota Supreme Court, which dismissed Petitioner’s appeal on October 8, 2008 with the statement that it was without merit and issued no opinion on Petitioner’s appeal.

REASONS FOR GRANTING THE PETITION
The issue of government restraint on speech has been previously addressed by this court and other federal courts and the courts have consistently found that all such speech codes are unconstitutional. Specifically, in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Supreme Court said that the government cannot decide which speech it will allow and which speech it will not allow.
Further, in Texas v. Johnson 491 U.S. 397 (1989), the Supreme Court stated, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.” Further, the court stated, “”Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, … a government cannot mandate by fiat a feeling of unity in its citizens.”
Other pertinent cases where the courts have struck down free speech limits by the government include: Terminiello v. Chicago, 337 U.S. 1 (1949); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-5, 20 L. Ed. 2d 811 (1968); Brandenburg v. Ohio, 395 U.S. 444 (1969); Perry v. Sindermann, 408 U.S. 593 (1972); Rankin v. McPherson, 483 U.S. 378 (1987); Keyishian v. Board of Regents, 345 F.2d 236, 239; and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562.
Speech codes have also consistently been found to be vague and overbroad. Specific cases supporting this determination include: Gooding v. Wilson, 405 U.S. 518 (1972); Connally v. General Construction Co., 269 U.S. 385, 391 (1926); and Grayned v. Rockford, 408 U.S. 104, 108-109 (1972)
At least six such university speech codes have been declared unconstitutional by the courts in recent years: Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989), Corry v. Stanford (No. 740309, California Superior Court, Santa Clara County, 1995); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), UWM Post v. Board of Regents of University of Wisconsin, 774 F. Supp. 1163 (E.D., Wis. 1991), Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), and DeJohn v. Temple University, Case No: 07-2220 (2008), Third Circuit Court of Appeals.
By prohibiting any speech considered to be uncivil, without any definition of what constitutes ‘uncivil’, the civility clause is punishing and banning a broad range of speech, including that which is protected by the U.S. Constitution and other statutes. As a matter of law, the civility clause is overbroad. Without any definition or measure of ‘uncivility’, the civility clause is also vague, allowing the measure to be applied in an arbitrary manner.
Additionally, there is no due process available to anyone accused of violating the civility clause, in violation of the protections of the 14th amendment. Since there is no definition of what constitutes ‘uncivility’, the accusation cannot be challenged. With the exception of one grievance step that is adjudicated by the faculty, the grievance process is adjudicated by the administration, the same individuals that pursue the action against the faculty members and whom grievances are filed against. The findings of the faculty review board are disregarded and are termed ‘irrelevant’ by the administration. The administrative law judges in the South Dakota Department of Labor sit as judges in hearings against state interests, but also act as advocates representing the state in other hearings. With the judge acting as both judge and advocate for the state, it is not reasonable that any faculty member can expect a fair and unbiased hearing against a state entity.
This court has also addressed the issue of retaliation in the workplace. Notably, Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996); Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S., 126 S.Ct. 2405 (2006); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982); and Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed.
Most of the cases cited above are final judgments of the U.S. Supreme Court.
As a veteran, Petitioner was entitled to protection in his employment by SDCL 3-3-4. None of the actions required in this statute were fulfilled by the university and Petitioner was denied this protection under the law. SDCL 3-3-5 states that violation of this law is a misdemeanor. The courts refused to enforce this law.
South Dakota Codified Law SDCL 1-1A-1 voids any action that is in violation of judgments of U.S. Supreme Court, while SDCL 1-1A-2 prohibits the enforcement of anything that is in violation of SDCL 1-1A-1 and SCDL 1-1A-3 requires all South Dakota officers to protect the constitutional rights of the individual citizens. By failing to uphold the findings of the U.S Supreme Court, USD, James W. Abbott, the South Dakota Board of Regents, the South Dakota Department of Labor, the South Dakota Circuit Court and the South Dakota Supreme Court all failed to uphold these three state laws. By failing to enforce the final judgments of the U.S. Supreme Court, these officers of the State of South Dakota have violated Petitioner’s 14th amendment rights.

CONCLUSION
With its decision, the South Dakota Supreme Court decided important federal questions in a way that conflicts with the decisions of United States courts of appeal and the U.S. Supreme Court. It has also decided important federal questions in a way that conflicts with relevant decisions of this Court. For these reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted.

CHRISTOPHER F. KEATING, pro se