Tales From The Travels

I read this editorial in the USD school newspaper, The Volante, today. As you can see, I have not been exaggerating when I talk about how malicious the USD administration is.

When I was there, Abbott was famous for his vindictiveness. When I got into my legal problems, people were telling me of their first hand horror stories. When I asked them if they would be willing to testify, they said they were afraid. Abbott, they said, would either fire them or, if they didn’t work for the university, would fire their spouses. Five faculty members stepped forward and volunteered to testify of their personal experiences where they suffered retaliation at the hands of Abbott. They didn’t have to, but the very fact they were willing to forced the university to change their tactics.

Lawyers all over the state warned me about how vindictive Abbott is and they told me that, no matter how long it took and no matter what it took, Abbott would get even with anyone that crossed him. It was spelled out for me in perfectly clear language that breaking the law was not something he was afraid of doing.

I received many death threats during my last year there after the legal fight began. I would be somewhere in town and someone would come up to me and ask me who I was. When I responded, they would say something like, ‘I just wanted to let you know that I heard Jim Abbott is going to burn your house down while you’re asleep.’ Or, maybe that he was going to have stolen property or illegal drugs placed in my car and then call the police. Over the course of a year, I received about 10 such threats. Right before I left town, someone came up to me one evening while I was having a beer and told me Abbott was going to have Tina Keller killed and have me framed for it. That way, I was told, he would get rid of me and a troublesome mistress at the same time.

Now, you can believe that Abbott had nothing to do with all of that. But, when total strangers come up to me and start making comments like that, I cannot believe for a second that it was uncoordinated. And, the best part is, no laws were broken. They didn’t actually threaten me, they just told me they had heard about it somewhere. But, the message was clear.

Let me say that I never believed they would carry through with the threats. I felt at the time, and feel even today, that they were just trying to intimidate me. In that regard, they failed completely.

In fact, it is this very vindictiveness that is the source of their problems now. After leaving town, I was worn out and ready to put it all behind me. I would have settled for anything they might have offered me. Instead, I fully understood they were going to come after me with everything they had. They didn’t want to settle, they wanted to make an example of me. Forced to fight, I found a way to win. I knew the South Dakota courts would never decide against USD or Abbott and I was flat out told the only way I could win was to go to the US Supreme Court. So, that’s where I am now. And, I believe very strongly that I will win.

Given the documented history of this school, I really have to wonder why anyone would accept a position there. In fact, they have a very hard time filling their openings. I have been told by members of the administration that about one-third of all open faculty positions go unfilled every year. Its understandable.

Knowing the history and attitude of Abbott and his cronies, I have cut and pasted the entire editorial below. If he forces the Volante to remove it, there is a copy of it here. Also, notice there is no by-line on the editorial.

***************************
SPECIAL EDITORIAL: Administration secrecy must stop

Published: Wednesday, April 15, 2009

Updated: Wednesday, April 15, 2009

They’re intensely secretive, they’re unapologetic and they increasingly deal in misleading statements.

They’re members of USD’s administration.

They’re a group led by President James Abbott and it increasingly seems their mission is to squelch negative news and muzzle dissent among faculty and staff.

Just a few weeks ago, Abbott downplayed the recession’s effects on USD in a forum. He assured us personnel and program cuts were last resorts.

Now, despite the fact that USD is a liberal arts institution, science programs are being expanded at the expense of 16 faculty and staff, who were abruptly fired last week.

We weren’t we told we had so quickly reached our last resort.

And the administration’s secrecy didn’t start with the firings.

Earlier this semester, we wrote about the secrecy surrounding the administration’s controversial plan to fund the Promise Scholarship.

That’s the scholarship centralization scheme.

Seemingly plucked from thin air, it seemed hurried and reactionary. Students, faculty and staff were blindsided by the administration’s sudden, unprovoked power grab.

Many faculty and staff had strong opinions on the secrecy, but their opinions weren’t printed in The Volante. And that’s not because we didn’t ask.

It’s because the administration seems willing to punish when secrecy is violated. This has created a culture of fear.

The Volante was refused interviews by several faculty members, citing possible administration retaliation. Others insisted on off-the-record interviews, saying even the lightest criticism of administration policies or decisions could end their careers at USD.

Faculty and staff have even requested we contact them through non-USD e-mail accounts, in case university e-mail was being read.

We recently received an anonymous letter from a faculty member decrying the administration’s Promise Scholarship secrecy. While it is our policy to not publish unsigned letters, this statement is quite telling:

“I’m not signing this note because I honestly believe that doing so would cost me my job,” they write.

We can’t be sure why these faculty and staff believe their jobs are at risk.

We’re no conspiracy theorists, but that feeling seems ubiquitous on campus.

Is the Abbott administration actively punishing faculty and staff who dissent from its policies and decisions? We demand an answer.

We note that the Abbott Administration has complied with The Volante’s every interview request.

They routinely meet with our reporters for interviews on many topics, and they’re nice about it.

But we’re not concerned with their manners. We’re concerned they’re not telling us the whole story. We’re concerned that, with faculty effectively silenced, they can spin information any way they’d like.

Abbott even refused an invitation to participate in the Cross Media Council’s Budget Forum on Thursday. He would have been forced to answer to fellow faculty sitting next to him onstage, unlike in his own forum, which occurs an hour earlier than the CMC’s.

So his refusal is quite telling.

Of course, some degree of secrecy is necessary. We know some decision-making processes are sensitive and must be kept from the general public.

But Abbott and company are treating the rest of USD like the enemy by withholding information and downplaying negative news.

This secrecy is unwarranted. Indeed, if we’d have been told layoffs were coming, we mayhave been better able to accept them when they did.

But instead, we were consistently left in the dark about the imminent danger of layoffs. We were consequently dismayed by last week’s firings.

Faculty and staff are fearful. They were suddenly thrust into a world of layoffs, a world from which the administration suggested they’d be protected.

More, they’re being pressured to not criticize their superiors. Is this the kind of work environment that would be tolerated in any other state institution?

The administration’s secretive tactics have been tolerated for far too long.

It is imperative that students, faculty and staff make it known to the administration that under no uncertain terms will they accept undue secrecy and bullying tactics.

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

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

Well, after three months of work, I finally submitted my appeal brief to the South Dakota Supreme Court yesterday. The brief itself was only about 35 pages long. But, when you included all the appendices, it was nearly an inch thick and weighed about two pounds. I have dedicated hundreds of hours to making sure my legal arguments were valid and substantiated, not to mention the time I devoted to making sure it was all in the proper format demanded by the supreme court. This week was a real crunch and I neglected all my house chores and my son (and my sleep!) while devoting all of my time to ensuring everything was done right and get it to the court before Monday’s deadline.

I have now done something most lawyers haven’t done by submitting an argument to a state supreme court. Needless to say, the bad guys are not going to be happy with what they see. I imagine that if I was in law school, my brief would get bad marks for technical writing. But, the logic is flawless and I have an enormous amount of documentary evidence, law, and court precedent to back me up. Again, I don’t expect a favorable decision because the state doesn’t pay its judges to rule against it. But, sooner of later, I will win. In any event, the bad guys have 45 days to respond, then I have 15 days to rebut. So, I’m not expecting a decision before Christmas.

My appeal dealt with the following basic points:

They denied me due process. They never charged me with the offenses they are now claiming I made, never presented any evidence, and never allowed me to defend myself.

The real reason they fired me was in retaliation for a grievance I filed against my immediate supervisor, Christina Keller (I swear, if I had thought she was Jim Abbott’s mistress I would not have filed that grievance in the first place!).

The civility clause they used to fire me is unconstitutional. The courts have been very clear that speech codes are a violation of the first amendment right to free speech. Since violating the civility clause (which just says everyone must be nice to each other) is the only offense I was ever charged with, if the clause is struck down, then they have no basis to fire me. I asked the circuit court judge, Stephen Jensen, to declare it unconstitutional and he sidestepped it by simply not making a ruling. He just ignored it completely! Like I said, South Dakota doesn’t pay its judges to rule against the state.

Judge Jensen did rule in my favor on one point, but it was very interesting. Because of the nature of his ruling, I believe he ruled in my favor in order to deny me any benefits. This ruling concerned my years of service at the time they fired me, which is an important consideration under the collective bargaining agreement. They claimed I had over four years of service, while I claimed I had between two and four due to the fact that I had taken unpaid leaves of absence for military mobilizations. If I really was over four, I argued the contract said they couldn’t fire me the way they did. But, if I was between 2 and 4, then they owed me a big cash settlement. The judge ruled that I had the number of years of service I had claimed, but wasn’t due the cash settlement. So, he gave them the authority to fire me, but denied me the benefits the contract said I should have. Pretty nifty.

The last point is that they violated my rights as a veteran. South Dakota law is very specific about hiring and firing veterans and they violated the law in this regard. Its a class 1 misdemeanor to do so, so its pretty important if I win.

So, here’s my brief (without appendices) for your reading pleasure. I don’t blame you if you don’t read it. The only reason I would read it myself is because I’m involved. (I apologize for the appearance, the format came out different than the document when I pasted it.)

******************
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,

Date of Notice of Appeal: February 1, 2008
Table of Contents

Table of Citations Page 3
I. Jurisdictional Statement 6
II. Statement of Legal Issues 6
III. Statement of Case and Facts 10
IV. Legal Argument 17
Grievance 1 17
Grievance 2 20
Grievance 3 23
Grievance 4 25
Grievance 5 26
Unfair Labor Practice Complaint 1 27
Unfair Labor Practice Complaint 2 33
Malice 33
Summary and Remedy 34
Appendix

Citations
14th amendment 5, 22, 32, 37
1st Amendment to the U.S. Constitution 8, 16, 17, 21, 27, 28, 32, 37
Bullfrog Films Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988) 27
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S., 126 S.Ct. 2405 (2006) 13
Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) 22
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) 6, 18
COHE agreement 4, 5, 6, 7, 8, 10, 12, 14, 15, 16, 18, 20, 21, 22, 24, 25, 26, 35, 36, 37
Gaymed v. City of Rockford, 408 U.S. 104, 108-109 (1972) 27
Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996) 12
Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)) 6, 7, 11, 12, 13, 14
Keyishian v. Board of Regents, 345 F.2d 236, 239) 29
Pappas v. Giuliani, No. 00-9487 (2nd Circuit Court of Appeals, May 13, 2002) 30, 31
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 8, 28
Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000) 5, 6, 7, 8, 10, 11, 12, 13, 14
Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed 6, 23
SDCL 1-1A-3 8, 34
SDCL 3-18-15 11
SDCL 3-18-3.1 4, 9, 11, 15
SDCL 3-3-4 8, 27, 39
SDCL 3-3-5 28
South Dakota Constitution 22
Uniform Commercial Code 7, 26
US Code Title 18, Section 214 14

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 above referenced matter.
2. Decisions on appeal are:
• Order denying application to present additional evidence, dated January 2, 2008 and filed January 2, 2008.
• Findings of fact and conclusions of law with Memorandum Opinion attached, dated January 2, 2008 and filed January 2, 2008.
• The court’s foregoing Memorandum Opinion, dated November 30, 2008 and filed December 3, 2008.
• Order and judgment, dated January 2, 2008 and filed January 2, 2008.
Notice of Entry was delivered to me by first class mail and dated January 11, 2008. I filed my Notice of Appeal with the Clay County Office of Clerk of Courts on February 1, 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
Before the court are five grievances filed under the collective bargaining agreement between the South Dakota Board of Regents and the Committee on Higher Education (“COHE agreement”) and two unfair labor practice complaints made under SDCL 3-18-3.1 which were filed with the state Division of Labor and Management. Each of these issues dealt with the circumstances surrounding the 2004 non-renewal of my tenure-track contract by the University of South Dakota and university president James W. Abbott, allegedly because I violated the civility clause of Appendix G of the COHE agreement (“civility clause”). The administrative law judge ruled against me on all counts and I appealed his decision to the circuit court, Judge Stephen Jensen presiding. A summary of the grievances and the circuit court’s findings are summarized below:
Grievance 1: That the non-renewal of my tenure track contract with USD was a disciplinary action and USD failed to give me due process when they did not follow Sections 8.6 and 15 of the COHE agreement in taking this action. USD was required to notify me of the violation I was charged with, conduct an investigation, establish a prima facie case, and allow me to defend myself. No due process was ever performed. I was allowed to defend myself against one charge of violating the civility clause, but the university is now claiming after the fact that I was dismissed for other reasons. I was never charged with these violations and never allowed to defend myself. Never, at any time has the administration establish a prima facie case.
The circuit court ruled that the university’s actions were not disciplinary and I was not entitled to due process.
Relevant Authority: 14th Amendment to the U.S. Constitution; Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)
Grievance 2: That the non-renewal of my contract with USD was in retaliation because I engaged in a protected activity when I filed a grievance against my supervisor, Christina Keller, in the fall of 2003. I have established a substantial prima facie case that retaliation actions began immediately after I filed my grievance and continued until I was dismissed.
The circuit court ruled that the university’s actions were not retaliatory.
Relevant Authority: Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); Pickering v. Board of Education, 391 U.S. 563 (1968); Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed
Grievance 3: That my years of service were improperly calculated and as a result USD failed to provide me with the proper compensation provided for by the COHE agreement. Based on my number of years of service at the time of my non-renewal, I was due, at the administration’s discretion, either a 12-month contract or a cash payment of $92,716.56. The university claimed I had more than four years of service and wasn’t due either.
The circuit court ruled in my favor, stating I had 3.86 years of service as I claimed, but denied me the protection of the collective bargaining agreement and did not award me the compensation required by the contract.
Relevant Authority: COHE Agreement; Uniform Commercial Code
Grievance 4: That USD failed to fairly and adequately apply the COHE agreement, and in doing so should commence disciplinary actions against Keller for documented violations of the civility clause. This grievance was intended to demonstrate the capricious nature of the administration’s actions and that the civility clause is vague and overbroad. To be in compliance with the law and the contract, they would either have to discipline Keller, or withdraw their complaint against me. They did neither.
The court ruled that the agreement was applied equitably.
Relevant Authority: Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); COHE Agreement.
Grievance 5: That I was discriminated against by USD because of my veteran status. I was denied the full veteran benefits guaranteed me by law and was therefore discriminated against by being denied equal justice under the law. SDCL 3-3-4.
The circuit court declared I was not discriminated against.
Relevant Authority: SDCL 3-3-4
Unfair Labor Practice #1: That USD was in violation of SDSL 3-18-3.1 (1) and committed an unfair labor practice and violated my Constitutional right of free speech under the First Amendment when they invoked the “civility clause” of the COHE agreement. I argued that the civility clause, in its very nature, is unconstitutional and by invoking it, they violated my constitutional rights. I also argued that it was unconstitutional for them to invoke it for speech I made in the privacy of my own home and on my own time. The record shows that I was not dismissed for any disruptive behavior, but that I was dismissed for making a comment in the privacy of my own home and on my own time that they considered to be rude.
The circuit court did not make any ruling on my claim that the civility clause is unconstitutional. Instead, the court ruled that the actions by the university did not violate my constitutional right to free speech.
Relevant Authority: 1st Amendment to the U.S. Constitution; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Pickering v. Board of Education, 391 U.S. 563 (1968)
Unfair Labor Practice #2: That USD committed an unfair labor practice in violation of SDCL 3-18-3.1 (4) by dismissing me in retaliation for filing a grievance. This complaint was substantially the same as Grievance #2 above.
Relevant Authority: SDCL 3-18.3.1.

III. Statement of Case and Facts
1. At issue are the findings of the First Circuit Court, Judge Stephen Jensen presiding, concerning my appeal before that court. The hearing before the court was held on July 17, 2007 in Vermillion, SD. The transcript (“Transcript”) from this hearing is included in the court documents. On appeal were findings from the administrative hearing before the South Dakota Department of Labor, Division of Labor Management, on the cases of HF 1 U, 2004/05 and HF 11G, 2004/05. This hearing was held on January 17 and 18, 2006, Administrative Law Judge Randy Bingner presiding, and concerned my claims that I was dismissed from my tenure-track contract as a professor at USD unfairly and wrongfully and for engaging in protected activity. Judge Bingner found against me on all points. Judge Jensen ruled for me on one point concerning my years of service, did not rule on another point concerning the constitutionality of the civility clause, and ruled against me on all other points.
2. I was first employed by the University of South Dakota (USD) as an Associate Professor of physics at the beginning of the 1999-2000 academic year, with a nine-month tenure tract contract and continued in the employment as a tenure track professor through the end of the 2003/2004 academic year.
3. During this time, I was twice mobilized to military duty. First, from November 16, 2001 to July 20, 2002. The second time from January 6, 2003 to June 30, 2003. I took unpaid leaves of absence both times I was mobilized.
4. In February 2003, I had some concerns about Keller’s behavior and I sent an email to her about them. This constituted an encouraged informal grievance under the collective bargaining agreement (the COHE agreement).
5. In August 2003, Keller came to me and yelled at me in front of a student, claiming I had added a section to a course without her permission, which was not the case. When Keller refused to discuss the situation with me or to apologize for her behavior, I filed a grievance on September 10, 2003 with my department chair, Timothy Heaton, that Keller was creating a hostile work environment.
6. Heaton and Keller immediately took my grievance out of the department and took it to the Dean of Arts and Sciences, the Vice President for Academic Affairs, and to the University President (Transcript pages 27-28). This is in violation of Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000), where the court adopted the “reasonably likely to deter” test advanced by the EEOC: “The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.”
7. Heaton also sent me an email (A-25) that stated that I had ‘taken a great personal risk’ by filing my grievance. This is also in violation of Ray v. Henderson because it raises the question, ‘Why was I taking a great personal risk by engaging in a protected activity with my department chair?’
8. My grievance was investigated by Heaton, who wrote two letters after his investigation, the first denying my grievance in its entirety and the second placing all blame for any problems on me. This is in violation of SDCL 3-18-3.1 and SDCL 3-18-15 which prohibit using grievances as opportunities to punish the individual filing it.
9. During the investigation, Heaton came to me in my office and told me that Keller would falsely accuse me of sexual harassment if I proceeded with my grievance. I objected strongly and they did not carry through with their threat. This was a violation of Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)), which states that conduct that is likely to deter protected activity is actionable. Heaton and Keller deny the threat ever occurred. (Transcript pages 34-35)
10. In September and October 2003, I filed grievances with the campus equal opportunity officer, Ms. Roberta Hakl, concerning Heaton’s letters and the threat to falsely accuse me.
11. In October 2003, after filing my grievances, Keller began monitoring my classroom activities, an action she had not done since 1999 (Transcript page 28) This violated Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996), where the court ruled that generally, discriminatory application of performance standards, including closer scrutiny of complaining employees, on account of protected activity is actionable as retaliatory.
12. In October, 2003, the Dean of Arts and Science, Matthew Moen, scheduled me for a meeting to discuss my situation. He then canceled this meeting shortly before we were to meet and never rescheduled it again. This was a violation of Heath v. General Services Admin. in that it creates an antagonistic atmosphere and discourages someone from engaging in protected activity.
13. In February, 2004, Keller marked me down on my faculty performance reports and included selective student comments in violation of the procedures provided in the COHE agreement. The COHE agreement stipulates that, if student comments are used, it must be done as representative of the comments. Keller only selected derogatory comments and failed to show that the majority of student comments were positive (Transcript pages 20-21 and 29). This is retaliatory in nature and is violation of Ray, Heath and Harrison.
14. Keller also reassigned me to lesser courses within the department against my will and even though I was senior to the person she gave my former assignment to (Transcript pages 5 and 29). This is in violation of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S., 126 S.Ct. 2405 (2006) which found that reassigning someone to lesser duties within the same department after they engaged in protected activity was retaliatory.
15. I approached Keller several times during this time period to resolve any problems, but she ignored me every time and would not respond to my emails. She never initiated any action on her part to resolve any differences between us. This was a failure on her part as a supervisor and, by Ray v. Henderson, is retaliatory in nature because it discouraged me from wanting to engage in any protected activity and Heath because it was conduct that was likely to deter a faculty member from engaging in protected activity.
16. During this period, I consulted with several lawyers concerning the activity going on at the university and the threat of false sexual harassment charges. I was advised by lawyers to contact the South Dakota Attorney General’s office, which I did. After discussing the matter with a representative of the Attorney General’s office, I was told there was nothing they could do for me.
17. After discussing the situation on the phone with me, the representative of the Attorney General’s office emailed President Abbot to inform him about my phone call. Abbott then informed the administration about my phone call, including my supervisors (Transcript pages 4-5 and 29 and pages A-26 – 27). This was a violation of Ray v. Henderson and Heath, and US Code Title 18, Section 214 and is clearly retaliatory in nature. For me to contact the Attorney General’s office is certainly protected activity and by sharing this information and taking action against me the university engaged in retaliatory measures. It is disturbing to think that the people of South Dakota are putting their jobs at risk by talking to the Attorney General’s office when they have concerns that the law is being broken.
18. On Saturday, April 24, 2004, I sent an email on my own time and from my own home that I considered Keller to be a “lying, back stabbing, sneak”.
19. Hakl adjudicated my grievances in May 2004 with the finding that my grievances were not within her purview.
20. On June 9, 2004, I was notified in writing that I was being considered for non-renewal of my tenure track contract for violating the civility clause of Appendix G to the COHE agreement (page A-28). No other reason was given. So, the university stated I was being considered for non-renewal because I had made a comment in my own home that they considered to be rude.
21. On June 22, 2004, I met with Keller, Heaton, Moen, and Donald Dahlin (the Vice President for Academic Affairs). At this meeting I was again informed that I was being considered for non-renewal for violation of the civility clause of the COHE agreement, with my April 24, 2004 email cited as the one and only violation (Transcript page 30).When I stated it was my belief the decision was already made and they were merely going through the motions, all four administration members present nodded their heads and stated that that they ‘were certainly leaning that way’. I then proceeded to present evidence that my statement concerning Keller was fair and accurate and that I was protected by free speech rights. At no time during or after the meeting has it ever been claimed that my statement concerning Keller was incorrect or unjustified.
22. On June 29, 2004, Abbott notified me that he was recommending that my tenure tract contract not be renewed.
23. In July 2004, I filed a total of nine grievances related to this action in accordance with grievance procedures contained in the COHE agreement. I withdrew the first grievance and refiled it as five separate grievances. Each of these five grievances were denied at the lowest administration level and appealed. All five grievances were then granted in my favor at step two of the grievance process, the Faculty Peer Review Committee, which is the only step not decided by the administration.. All five grievances were then denied by Abbott. All five grievances were appealed to the South Dakota Board of Regents and denied. I then appealed all five grievances to the South Dakota Department of Labor, Division of Labor and Management.
24. In August 2004, I initiated two unfair labor practice complaints with the State Department of Labor that the university had violated two parts of SDCL 3-18-3.1.
25. In August, 2004 I was offered and accepted a one-year term contract for the 2004/2005 academic year, which was completed in May 2005. This contract did not satisfy the COHE required penalty incurred due to the late notice of my non-renewal.
26. A hearing was held on January 17 and 18, 2006 on the USD campus concerning my grievances and unfair labor practice complaints. Administrative law judge Randy Bingner was the presiding judge.
27. I filed a brief with Judge Bingner at that time establishing that the civility clause was in violation of the 1st Amendment and other rights. The university has never rebutted this argument. I also submitted this same brief to the South Dakota Attorney General’s office in January 2007. The Attorney General’s office has never commented on or disputed my argument (Pages A-29 – 42).
28. Final arguments were due by February 22, 2006. Each party was allowed one rebuttal each, which were due by March 8, 2006. These documents are in the court record. When no decision had been made by August 31, 2006, I wrote a letter to Bingner requesting to be advised when a decision would be forth coming. When no response was made I wrote a letter to the Bingner’s supervisor, Mr. James Marsh, on September 16, 2006 concerning the situation and requesting his assistance. Bingner then replied on September 20, 2006 that a decision should be ‘completed in the next two weeks.’ When there was still no decision after three weeks, I wrote a letter to the Secretary of Labor requesting assistance concerning the situation.
29. Bingner released his decision, denying all of my grievances and complaints, in a letter dated October 13, 2006. His order was dated November 6, 2006.
30. I filed my appeal with the circuit court on December 6, 2006 and a hearing was held before Judge Jensen on July 17, 2007.
31. Judge Jensen delivered his decision on 30 November, 2007. The order was signed on January 2, 2008. The Notice of Entry was sent to me January 11, 2008. Judge Jensen ruled in my favor on the issue of my years of service, but denied me the compensation stipulated by the contract. He failed to make any ruling at all on the question of the 1st amendment violation of the civility clause. He ruled against me on all other issues.
32. My notice of appeal was filed with this Court on February 1, 2008.

IV. Legal Argument:
Grievance 1: That the non-renewal of my tenure track contract with USD was disciplinary action and USD failed to follow Sections 8.6 and 15 of the COHE agreement in taking this action.
The university initially dismissed me for the one violation of the civility clause for an email I sent out on Saturday, April 24, 2004, stating their action was non-disciplinary and I was not allowed any due process. They have maintained this claim at all times.
Once they realized this email was a private communication that I had made on my own time and in my own home, they changed their story (Transcript pages 30-31). At the January 2006 hearing, they claimed the reason I was dismissed was because of an email I had sent in February 2003, more than 15 months prior to my dismissal. However, it was shown that this email constituted an informal grievance allowed for under the COHE agreement and they were admitting they dismissed me for engaging in a protected activity. (See Respondents Post-Hearing Brief, dated February 21, 2006 and Petitioner’s Rebuttal to Respondents’ Post-Hearing Brief, dated March 7, 2006 for reference.)
The university changed their story again and they are now claiming that I was dismissed for disruptive behavior in the workplace, citing Pickering v. Board of Education, 391 U.S. 563 (1968) as their justification for their actions. Pickering is a disciplinary procedure which requires them to accuse me of injuring the university and puts the burden of proof on them. After this, they must follow due process and allow me an opportunity to defend myself. None of these actions occurred and this is a violation of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) which requires that I receive a hearing before losing my contractual rights and that I have access to the material that the action was based on. I was never presented with any material before the June 22, 2004 meeting, and was provided with only the April 24, 2004 email as a cause of action. I requested access to all material the action was based on and was denied. The only charge I was allowed to defend myself against was the charge of being uncivil in my email of April 24, 2004 and I was never informed or allowed to defend myself against any violations of Pickering.
The university cannot claim that I was dismissed for disruptive behavior without following the due process. In fact, the university has never produced any documentation that I was disruptive in the workplace while I have provided substantial documentation that they thought I was a model faculty member prior to my September 2003 grievance (Transcript pages 18-23).
The university did not invoke the Pickering standard and I was never charged with any disruptive behavior. Indeed, I insisted that I should be granted the disciplinary action due process and was refused by the administration. They have maintained this stand at all times – that I was not entitled the due process rights of disciplinary actions. Having insisted that this was not a disciplinary action, they cannot invoke the Pickering standards after the fact.
When the university claims they dismissed me for undocumented disruptive behavior, they are confessing that they violated the contract and my due process rights. They cannot, on one hand, claim their action was justified because of a disciplinary issue while claiming, on the other hand, that they do not have to follow the law and the contract concerning disciplinary actions and due process. Ultimately, their actions are violations of my rights. If my dismissal was not a disciplinary action, then the university cannot claim I was dismissed for violating Pickering. If they are claiming I was dismissed for violating Pickering, they cannot claim their action was non-disciplinary and deny me my due process rights.
By invoking Pickering, the university is placing the burden of proof on them selves in the process. They have never established a prima facie case and have never satisfied this burden of proof. By the law of summary judgment, I am now due a favorable decision from the Court.
Grievance 2: That the non-renewal of my contract was in retaliation for my participation in a grievance claim against my supervisor in the fall of 2003.
I have presented an overwhelming and well-documented prima facie case that their actions against me were retaliatory in nature (for example, refer to Transcript pages 18-24, 27-35; and the February 22, 2006 Argument in Support of Petitioner). They have never refuted the evidence and have never been able to explain it. Their legal argument has been to merely state that my argument “has no merit”, without providing any documentary or legal evidence to show why, or to produce court precedents to support their claim.
It is undisputed that my statement was a private communication. It is undisputed that this statement was made in the privacy of my own home. It is undisputed that this statement was made on my own time. It is undisputed that the university suffered no harm from my statement. The only conclusion remaining is that the action taken against me was for retaliatory reasons.
They first made the claim that I violated the civility clause of Appendix G to the COHE agreement. This was the only charge against me and the only charge I was ever allowed to defend myself against. But, the civility clause is clearly unconstitutional and they have no authority to require me to be civil in the privacy of my own home and on my own time. Once they realized this was a violation of my 1st amendment rights, they stopped claiming this charge.
The next charge they made was that I was dismissed for an email I sent in February 2003. The problem was that I had never been given the opportunity to defend myself against this charge, they had never made any complaint that I was disruptive with that email, it was sent 15 months prior to their actions, and most importantly, was an informal grievance between myself and my supervisor as allowed under the COHE agreement. By claiming this as their cause of action, they were confessing to dismissing me because I had engaged in protected activity. This argument was presented to Judge Bingner (see the March 6, 2006 Petitioner’s Rebuttal to Respondents’ Post-Hearing Brief), but he did not act on it – an action that was in error of the law. He should have ruled that the university, in their claim, had provided a confession that they had acted in retaliation against me because I had engaged in protected behavior. The university has never been able to explain this position. Instead, they dropped this claim completely.
Once they realized the error in their story, they changed it again. This time, they claimed that I was a long-term problem in the workplace in violation of Pickering. However, they never at any time accused me of being disruptive in the workplace, they never produced any documentation that I was disruptive in the workplace, they never met their burden of proof that I was disruptive in the workplace, and they never gave me any opportunity to defend myself against any such charges. In fact, these charges were invented three years after the fact. In this way, they violated the COHE agreement, South Dakota Codified Law, the South Dakota Constitution, and the 14th amendment to the U.S. Constitution.
The university still has never, at any time, produced any documentary evidence to show that I was ever disruptive in the workplace, that I had ever been counseled, that I have ever been disciplined for behavior in the department, or that I had ever been any kind of problem in the department (Transcript pages 20-23). The only evidence produced by them has been anecdotal, unsupported testimony of a generic nature without specific instances that was offered only after the fact and by the people with a vested interest in seeing the administration win. This is a violation of Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) which found that 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.
I, on the other hand, have been able to produce extensive documentation written by the administration showing that I was regarded as a model employee prior to my grievance of September 2003 (Transcript pages 18-20). These documents are undisputed.
Now that their story has yet again been shown to be illegal and invalid, it has to be anticipated that they will attempt to manufacture yet another story.
In Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed, Justice O’Conner, writing for the Court stated,
Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. See id., at 517 (“[P]roving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination”). In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.” Wright v. West, 505 U.S. 277, 296 (1992); see also Wilson v. United States, 162 U.S. 613, 620—621 (1896); 2 J. Wigmore, Evidence §278(2), p. 133 (J. Chadbourn rev. ed. 1979). Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (“[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration”). Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

The evidence clearly shows that I was regarded very highly by the administration prior to my grievance of September 2003 and that I began to suffer numerous and continuous retaliatory actions commencing immediately after filing my grievance and culminating in my termination.
Grievance 3: That my years of service were improperly calculated and as a result USD failed to follow the proper procedure for the non-renewal of my contract, and that if the years of service were properly calculated, USD had no authority to non-renew me.
The circuit court correctly ruled in my favor when it found that I had served only 3.86 years by June 2004. The administration neither disputed this finding nor appealed it. However, the circuit court was incorrect when it ruled that I was not entitled to the protection of the contract. The court’s decision amounts to a burden on the faculty to prove that they are entitled to protection under contract law whenever the collective bargaining agreement is violated. The faculty members become entitled to protection under the law and the contract the moment they sign the contract and it was improper of the circuit court to take that protection away from me. It was the responsibility of the circuit court to uphold and enforce the law and it failed to do so.
By the terms of the COHE agreement, the administration was required to notify me of my nonrenewal by December 15, 2003, which they failed to do. Under paragraph 8.6.4, the administration must provide me, at their discretion, with either a term contract or a cash payment. Under the terms of paragraph 8.6.2, the administration was 198 days late notifying me of my nonrenewal (December 15 – June 30). By the formulas set forth in paragraph 8.6.2, the administration must offer me a contract equal to twice the number of days it is late, which is 396 days. However, paragraph 8.6.4 states that I am to be granted no more than one subsequent term contract after being notified and paragraph 8.2 states that term contracts will not exceed one year and are not to overlap two fiscal years. This means that if the administration were to offer me a term contract, it would have had to have been of one year duration and had to have started on July 1, 2004 to prevent it from overlapping two fiscal years.
Under paragraph 8.6.2 of the COHE agreement, the cash payment the administration owed me would be equal to the number of days the administration was late with its notice of nonrenewal (198 days) times 2 times my monthly salary divided by 22. My monthly salary in the semester prior to my notification was $4929.11. Using a 4.5% pay raise allowed for that particular year, the cash payment came out to be $92,716.56. This cash payment was due in July, 2004, assuming the university elected to not offer me the 12-month contract. Adjusting this amount by four years of earned interest at the fair rate of 8% brings this amount to $126,139.86.
By the time I was offered the nine-month contract covering the 2004/2005 academic year, the administration had already passed the deadline to give me either a 12-month contract or the cash payment. Since they had chosen to not give me the 12-month contract, they are now required to give me the cash payment. Therefore, the nine-month contract must be considered to be in addition to the cash payment they were already contractually obligated to give to me. I at no time ever agreed to allow them to substitute the 9-month contract for either the 12-month contract or the cash payment I was guaranteed under the contract.
The circuit court failed to correctly interpret and enforce the appropriate contract law and failed to enforce the collective bargaining agreement and denied me my rights under the law and failure of good faith required by the Uniform Commercial Code.
Grievance 4: That USD failed to fairly and adequately apply the COHE agreement, and in doing so should commence disciplinary actions against Keller.
The purpose of this grievance was not to commence disciplinary action against Keller, but to demonstrate the capricious manner in which the university applies the contract. Even though there was substantial evidence that Keller had violated the civility clause, all charges were dismissed without investigation with the statement that, ‘Faculty cannot initiated disciplinary actions against administration personnel’ (page A-43, paragraph labeled “June 30, 2004 grievance:”). In this way, the university showed they will only apply the contract in a top-down manner and will not allow the faculty any equal protection under the contract. They have shown they will pick and choose who they will apply the civility clause to and when. This action makes the members of the administration immune from being held accountable for any action they may commit and empowers them to act in any manner they want. The faculty is then left with the sole recourse of pursuing lengthy and costly legal actions in the courts. The COHE agreement was meant to provide protection for both sides, but the university has made it so ambiguous that it can now be used against the faculty and with impunity. This is why the U.S. Supreme Court has ruled that vague and overbroad laws and regulations are unconstitutional. A vague policy discourages the exercise of 1st amendment freedoms (See Gaymed v. City of Rockford, 408 U.S. 104, 108-109 (1972)). “[W]here the guarantees of the First Amendment are at stake, the [Supreme] Court applies its vagueness analysis strictly.” Bullfrog Films Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988).
Grievance 5: That I was discriminated against because of my veteran status.
As a veteran, I was guaranteed protection under the law and contract and this protection was violated. By stating they will obey the laws and rights that apply to non-veterans but then failing to obey the laws that apply to veterans they are engaging in unlawful discrimination. Because of my service to the country, the state of South Dakota chose to provide me with protections, including 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.”

And, SDCL 3-3-5, which states, “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.” The university was aware of this law and refused to comply with it. In so doing, they denied me my rights under the law as a veteran and committed a Class 1 misdemeanor.
Unfair Labor Practice #1: That USD committed an unfair labor practice and violated my Constitutional Right of Free Speech under the 1st Amendment by invoking the “civility clause” of the COHE Agreement.
I provided a substantial and detailed prima facie case of how the civility clause is unconstitutional (pages A-29 – 42). This brief includes four cases of similar university speech codes that were all declared unconstitutional by the courts. In fact, I have never found a case where a speech code was allowed by the courts. The U.S. Supreme Court and all lower courts have consistently and repeatedly declared speech codes to be unconstitutional. In particular, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) is the landmark ruling where the Supreme Court ruled that governments cannot pick and choose which speech they will allow (Transcript pages 12-13).
The university has never rebutted this prima facie case and the state Attorney General’s office has never objected to it. By the rules of summary judgment, the administrative law judge and the circuit court were both required to declare the civility clause unconstitutional and order my reinstatement (Transcript pages 9-16). Instead, the court did not make a ruling on this issue.
Instead, the circuit court found that the university did not violate my free speech rights and my dismissal was justified by Pickering. His argument was that I did not engage in a public debate, therefore I had no protection. However, just because someone does not engage in public debate does not mean they have forfeited their free speech rights. Indeed, the courts clearly state that government employees enjoy all rights they would otherwise enjoy if they were not employees of the government and that the government cannot restrict the employees’ rights anymore than it can of the public in general (Keyishian v. Board of Regents, 345 F.2d 236, 239).
USD and the Board of Regents are attempting to require employees to qualify for their rights. By requiring employees to satisfy the Pickering standards, they are attempting to put employees in the position that they enjoy their constitutional rights only if they take action to earn those rights. This is contrary to the law and makes free speech a privilege, not a right. The rights of the individual are granted by fact of being an American, not because they engage in a public debate.
It is true that the government, as an employer, has a right and an interest in maintaining discipline in the workplace. However, it has been shown, at no time was I disruptive in the workplace, the university never accused me of being so and has never produced any evidence that I was. In the particular instance leading to my dismissal, it is undisputed that I made my statement in the privacy of my own home, on my own time and that it was a private communication. Never has anyone claimed that I made this, or any similar statement, within the work place. In fact, it has been shown that I had no intention of this statement being introduced into the workplace and that this was done by the school administration itself. The record shows that I was, at all times, considered to be an exceptional faculty member prior to my September 2003 grievance and there is no documentary evidence to indicate that I was ever disruptive in the workplace and USD itself has insisted that the action taken against me was not disciplinary.
The court must ask, ‘If I was as disruptive as the university claims, why is there no documentary evidence of this? Why is it that all evidence indicates the exact opposite?’ The only logical answer is that I was not disruptive in the workplace, did not cause harm, and university does not possess any right under Pickering to restrict my free speech.
In the case of Pappas v. Giuliani, No. 00-9487 (2nd Circuit Court of Appeals, May 13, 2002), the courts ruled that Pickering applied, even when the speech occurred within the privacy of the employee’s home if the employer can show they have a vested interest at stake. In this case, Pappas was a New York City policeman that was fired for sending out hate mail consisting of racist and anti-Semitic materials on his own time. Pappas sued that this was a violation of his free speech rights. The Second Circuit court held that Pappas’ actions “potentially interfered with” or “disrupted” the NYPD’s activities, stating, “If the press became aware … of his dissemination of racist diatribes, it would report that this was done by a police officer – not a person … work(ing) on Police Department computers.”
Pappas established two important points pertinent here:
1) The employee must be charged and afforded due process. Neither occurred in my case.
2) The employer must demonstrate the employee’s speech was of such a nature that they did or could reasonably expect to suffer harm as a consequence. No such claim has ever been made in my case. In fact, the idea that an employee doesn’t like his supervisor is not new, unusual, or controversial. It is practically an American tradition. No investigation was ever conducted and no prima facie case has ever been presented to the court that the university would suffer harm if my statement became public knowledge. The proof of this is that the university proceeded to make my statement public knowledge on their own volition, so they must not have felt it would cause them harm. And, there is no evidence that they have suffered any harm due to this statement becoming public knowledge. The university has never satisfied the burden of proof in this regard.
Discontent with the way an educational program is being managed in a publicly-funded university certainly qualifies as a legitimate matter of public concern. “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” (Pickering) Likewise, I, as a member of the department, was most likely to have an informed and definite opinion as to the management of the physics program. By Pickering, it is essential that I be able to speak freely on such a question without fear of retaliatory dismissal. This has not happened and the university is claiming they dismissed me in retaliation for my statement, simply because they didn’t like it.
At no time has USD claimed or shown that they suffered any harm as a result of my statement. This is a key point in Pickering. In the event that no harm was done as a result of the statement, the administration has no basis to invoke the Pickering standards and they do not apply. I do not forfeit my 1st and 14th amendment rights by failing to write letters to the local newspaper. I have the right to utter the statement in question while in the privacy of my own home and the university and Board of Regents do not have the right to intrude and control my speech simply because I am a government employee. In Pickering, Justice Thurgood Marshall stated, “The problem is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
It is undisputed that I did not comment publicly, but the issue of management of a university program certainly qualifies as a matter of public concern. It is also undisputed that there is no claim that the efficiency of the services the university provides have suffered as a result of my comment in the privacy of my own home. Further, Justice Marshall stated, “At the same time it cannot be gainsaid that the State has interests as an employee in regulating the speech of its employees that differ significantly from those it possesses in connection with regulations of the speech of the citizenry in general. Justice Marshall goes on to say,
“Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.”

USD is making the argument that, since I did not engage in a public debate I am not covered by the Pickering standards and therefore, my speech is not protected. This is a false argument. The Court’s decision in Pickering was not made to limit the free speech rights of government employees, but to protect them in the specific instance of when government employees engage in public debate and to give protection to government employers when employees are disruptive in the workplace. It is undisputed that neither of these instances existed in this situation, (I did not engage in public debate and I was not disruptive in the workplace) therefore Pickering does not apply and the university cannot claim it as a cause for my dismissal.
The effect of their claim and with Judge Jensen’s ruling is to take away all free-speech rights of the faculty. Under his interpretation, faculty no longer have free speech rights, they only have free speech privileges which they must earn by engaging in public debates. According to the circuit court, if they fail to engage in any such debate, the university is free to dismiss them for anything they say, at any time, and any where, including the faculty member’s own home. Judge Jensen was in error in his ruling and failed to obey SDCL 1-1A-3, which requires him to uphold and enforce findings of the U.S. Supreme Court.
Unfair Labor Practice #2: USD committed an unfair labor practice by dismissing me in retaliation for my grievance against Keller. This complaint is substantially the same as Grievance 2 above.
Malice: The university has acted with malice at all times in this matter. Inspection of their briefs (see their Post-Hearing Brief and Respondent’s Reply Brief as examples) shows the university filling their court briefs with unprofessional statements that have no legal value and are only intended for the purpose of libel and character assassination. The university and their counsel have used the legal system as a means to punish me in order to make an example of me for the other faculty to see. In this manner, they have continued to engage in retaliatory actions and are trying to discourage any faculty member from engaging in protected activity.
They have withheld evidence (Transcript pages 6-7) that I have sought with subpoenaes.
When faced with arguments showing their calculation of my years of service was in error, they kept changing the way they calculated it (see the February 22, 2006 Argument in Support of Petitioner, pages 29-30). When each of these was demonstrated to be in error, they merely decided to ignore any complaint, in violation of contract law and the COHE agreement and demonstrating malice on their part by repeatedly working to deny me my rights under the contract.
Their arguments concerning my years of service have been malicious in that they consistently changed their story in order to deny me my rights under the contract. Then, by non-renewing my contract when the contract clearly denies them the authority for faculty with more than four years of service, which they claimed I had, they were denying me the protection the contract provided me. In this way, they have claimed they can ignore the contract and all laws associated with contracts and have done so with malicious intent to deny me my rights.
They have initiated a motion for sanctions for my comments concerning administrative law Judge Bingner (Transcript pages 39-48), even though they have no standing, have not alleged any actions on my part that are in violation of the law, and are only objecting to me quoting his Decision and Order. This action on their part is clearly intended to punish me and has no merit. By applying for sanctions and penalty, they have acted with malicious intent.
The email they received from the Attorney General’s office should have been ignored at worst, and should have been referred back to the sender’s supervisor for action by the Attorney General’s office. Their action to notify my entire administrative chain of supervisors, my immediate supervisors, and the university public safety office demonstrates they intended me harm and acted with malice.

V. Summary and Remedy
Ultimately, we must remember that the reason the university gave to non-renew my contract was because I made a comment they considered rude while in the privacy of my own home and on my own time. They have since that time continuously changed their story after the fact.
The university has consistently placed themselves in the position where their own evidence, statements and arguments are not self-consistent. They claim their action in dismissing me was non-disciplinary, but I was dismissed for the disciplinary reasons of violating Pickering. They now claim I was dismissed for violating Pickering, but all documentation show I was dismissed only for violating the civility clause. They claim that I was disruptive in the workplace, but their own documents instead show I was an excellent faculty member and never disruptive. They say they did not act in retaliation, but their documents show they began retaliatory actions just as soon as I filed my September 2003 grievance and continued until I was dismissed. They say they did not act in retaliation for my engaging in protected activity, but their argument before the administrative judge was that I was fired because I engage in an informal grievance. They say that they apply the COHE agreement fairly and equitably, yet their own document says that the faculty is not allowed to request disciplinary actions, which puts the administrative personnel in a superior position vis-à-vis the faculty. They have claimed that my requests should be denied because I stated at the January 2006 hearing that I believe punishment is part of the judicial process, yet they have consistently used the judicial system to punish me and make an example of me for engaging in protected activity.
At the July 17, 2007 hearing before Judge Jensen, Attorney for the university, Robert Frieberg, said my appeal should be denied because it didn’t have merit. He further stated, “I’m not going to try to answer everything that he said, because it drives me nuts” (Transcript page 56). Mr. Freiberg’s sanity aside, neither of these are legal arguments or legal evidence. And, the fact is, yes he does have to answer all of my points. The university cannot simply wave their hands at the mountain of documents, statements on their part, and court precedents that I have presented to the court and expect it to go away. I have established prima facie cases to support all of my claims. They must now supply legal evidence, court citations, and valid legal arguments to rebut my prima facie cases on the issues before this court. To date, they have failed to do so.
I am requesting the Court to grant me the following relief:

1. Award me the $126,139.86 due to me as a result of the late notice of my non-renewal, as instructed by the COHE agreement.
2. Declare the civility clause of Appendix G to the COHE agreement unconstitutional in violation of the 1st amendment.
3. Declare the grievance process in the COHE agreement to be unconstitutional in violation of the 14th amendment and order that a new grievance process be incorporated into the collective bargaining agreement that guarantees fair and equal treatment for the faculty.
4. Reverse my dismissal and order my immediate reinstatement into my previous position with all the same privileges and equal or superior accommodations in all respects. I am also requesting the court to reinstate me at the level of full professor in that this promotion was unjustly denied me, and to order me to be reinstated with a salary commensurate with the salary I am now receiving in my current employment at the U.S. Coast Guard Academy. I am also requesting the court to order all back deposits be made to my retirement account with the South Dakota Retirement System.
5. Barring reinstatement, I am asking the court to grant me real damages in the form of the present value of all my wages I could have reasonably expected to earn over the rest of my career. Based on my current pay and the value of various benefits, it is conservatively estimated that my current annual income is worth at least $85,000. Using compound interest tables and standard present value tables, it is calculated that this salary, coupled with an annual cost-of-living increase, would have a current value of over $3,000,000, if I worked for the next 25 years, as planned. If the court will not reinstate me as requested, I am asking the court to award me $3,000,000 in lost wages.
6. Award me $2,500,000 in punitive damages for the willfully unlawful and malicious acts of the university which were committed with the intentions of denying me my rights under the law and of violating my civil rights, demonstrating malice at all times.
7. Order James Abbott and the University of South Dakota be charged with a Class 1 misdemeanor for violating SDCL 3-3-4.
8. Order the previously subpoenaed notes of Roberta Hakl to be turned over.
9. Order all previously subpoenaed emails to be turned over to an independent third party for the purpose of determining, at my expense, which emails I am entitled to and if any violations of the law were committed by the university, its employees, or its attorney.

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 8th day of April, 2008

Christopher Keating

I certify this brief contains 8078 words and 39,981 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 8th day of April, 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

Dr. Christopher Keating