512 F.2d 109 (9th Cir. 1975), 73-1520, Starsky v. Williams

Docket Nº:73-1520.
Citation:512 F.2d 109
Party Name:Morris J. STARSKY, Plaintiff-Appellee v. Jack R. WILLIAMS et al., Defendants-Appellants.
Case Date:February 26, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 109

512 F.2d 109 (9th Cir. 1975)

Morris J. STARSKY, Plaintiff-Appellee


Jack R. WILLIAMS et al., Defendants-Appellants.

No. 73-1520.

United States Court of Appeals, Ninth Circuit

February 26, 1975

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Alan M. Kyman, Phoenix, Ariz., for plaintiff-appellee.

Howard P. Leibow, Sp. Asst. Atty. Gen. (argued) Phoenix, Ariz., Nicholas Udall, and Robert O. Lesher, Tucson, Ariz., for defendants-appellants.

Before BROWNING and DUNIWAY, Circuit Judges, and WOLLENBERG, [*] District Judge.


DUNIWAY, Circuit Judge.

The Arizona Board of Regents and its members appeal from a judgment ordering the regents to reinstate Morris J. Starsky as an assistant professor of philosophy at Arizona State University. Starsky brought this action for an injunction and damages under the Civil Rights Act, 42 U.S.C. §§ 1981-1985, alleging that the Board's decision not to renew his yearly contract violated his first amendment rights. The trial court held that the regents improperly predicated the decision not to renew on constitutionally protected speech. Starsky v. Williams, D.Ariz., 1972, 353 F.Supp. 900. We affirm in part, reverse in part, and remand on a limited issue.

In January 1970, Professor Starsky cancelled a regularly scheduled class at Arizona State to attend a rally at the University of Arizona, where he was one of several speakers protesting the arrest of certain University of Arizona students. Shortly thereafter, the regents instituted disciplinary proceedings against Starsky for his participation in this and seven other incidents involving allegedly unprofessional conduct. These incidents are described in the opinion of the district court and need not be rehearsed here. Although Arizona State University does not have a formal tenure system, Starsky had attained "stability of employment," which entitled him to a hearing before a decision not to renew his contract of employment. This he received before the faculty Committee on Academic Freedom and Tenure. 1

After taking extensive testimony, totalling nearly 1200 pages of transcript, the faculty Committee made detailed findings regarding the eight specific incidents and concluded that, although the Committee did not condone all of Starsky's conduct, the incidents did not warrant dismissal. The university president forwarded these conclusions to the Board of Regents and recommended sanctions short of dismissal. Nonetheless, on June 10, 1970, the Board, as it had power to do, decided not to renew Starsky's yearly contract and thus terminated his employment. In making this decision, the regents relied on all eight incidents without assigning particular significance to any of them.

In this action, after both parties had moved for summary judgment on Starsky's claim for reinstatement, the trial judge proceeded to decide the merits of the claim on the basis of a written record. On the merits, the judge found

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that the evidence did not support some of the factual findings of the Board and held that, of the eight incidents for which Starsky was discharged, six involved constitutionally protected speech under applicable Supreme Court precedents, one involved unprotected speech, and one involved conduct other than speech (cancelling a class) and was therefore unprotected. Applying the clearly erroneous rule, for reasons hereafter stated, we sustain the district judge's findings of fact, which were based on his exhaustive review of the evidence. Furthermore, we agree with his careful application of the law to each of the eight incidents.

Faced with a melange of reasons for the discharge, several based on constitutionally protected activity and therefore not valid grounds for dismissal under Perry v. Sindermann, 1972, 408 U.S. 593, 596-98, 92 S.Ct. 2694, 33 L.Ed.2d 570, the judge concluded that Starsky's termination was predicated primarily or substantially on protected activity. Accordingly, the judge entered judgment for Starsky, ordering him reinstated, but reserving all issues relating to damages. We affirm Judge Muecke's decision on this issue for the reasons stated in his careful opinion. We need not decide whether Judge Mueckle might have applied a less stringent test that would invalidate a discharge if based in part, even though not primarily or substantially, upon protected activity. On that question we express no opinion. But for a procedural anomaly, we would affirm the judgment in its entirety.

This appeal raises two procedural issues, one of which requires further proceedings in the district court. They are: (1) whether it was proper for the district judge to enter judgment for Starsky on what the parties characterized as cross-motions for summary judgment, and (2) whether Starsky's claims are foreclosed by a contractual settlement.

1. Judgment on cross-motions for summary judgment

The regents attack the judgment on the merits by arguing that summary judgment is improper because the trial court resolved genuinely disputed issues of material fact. Although we do not agree with the regents that some issues that they identify were genuinely disputed, we assume arguendo that the judge did resolve at least one disputed material issue, namely, what was the regents' primary reason for discharging Starsky. Nonetheless, we do not reverse the judgment, for we agree with the trial judge that, under circumstances unique to this case, the parties had in effect submitted this case to the court for trial on an agreed statement of facts embodied in a limited written record. The judge therefore was free to decide all issues relating to Starsky's right to reinstatement and, in so deciding, to resolve factual issues. See Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 9 Cir., 1970, 422 F.2d 1013, 1015-18, cert. denied, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138. This is why we apply the "clearly erroneous" rule, Fed.R.Civ.P. 52(a) in reviewing the judge's findings.

The judge made every effort to maneuver this case into a posture that would permit expeditious resolution of the threshold constitutional issues determinative of Starsky's claim to reinstatement. To that end, during a hearing on defendants' motion to dismiss in the early stages of the litigation, the judge entreated the parties to take advantage of discovery and encouraged them to expedite a decision of the merits of the reinstatement claim without a full trial, suggesting by way of example that summary judgment might be appropriate. Several months later the regents moved for summary judgment, relying on the pleadings, various affidavits, minutes of the meetings of the Board of Regents, and the transcript and exhibits from the hearing before the faculty Committee on Academic Freedom and Tenure.

As required by Local Rule 11(h) of the District of Arizona, the regents submitted a statement of material facts on which they relied for their motion. After one faltering attempt to rely on a mere series of citations to the administrative transcript, Starsky also submitted

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his statement of material facts. His principal ground for opposing summary judgment was that he alleged a conspiracy among the regents to punish him for his unpopular views and that questions of motive ought not to be resolved on summary judgment. The regents nonetheless maintained that the summary judgment procedure was proper.

At the hearing on the motion, upon persistent inquiry from the court, both parties made it clear that they relied on the written record before the court and that all the relevant facts on the issue of reinstatement were contained in that written record. Once again the judge urged the parties to make use of discovery to ensure that the record before the court was complete. Starsky followed the judge's suggestion by propounding interrogatories to each of the individual defendants, who included the regents and the university president. The answers to the interrogatories revealed no additional documents or information with which Starsky desired to supplement the record.

The judge then ordered a preliminary pretrial conference, suggesting that the case could be adjudicated either by cross-motions for summary judgment or by trial to the court. Although there is no record of the pretrial conference before us, a later order reveals that Starsky agreed to file a cross-motion for summary judgment and that the parties considered the case ripe for adjudication on the merits.

Starsky then...

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