Hale v. Walsh

• Decision Date: 28 July 1987
• Docket Number: No. 14927,14927
• Citation: 113 Idaho 759,747 P.2d 1288
• Parties: , 44 Ed. Law Rep. 719 Thomas F. HALE and Margaret S. Hale, husband and wife, Plaintiffs-Respondents-Cross Appellants, v. Mary Ellen WALSH and Robert V. Edington, Defendants-Appellants-Cross Respondents.
• Court: Idaho Court of Appeals

Page 1288

747 P.2d 1288

113 Idaho 759, 44 Ed. Law Rep. 719

Thomas F. HALE and Margaret S. Hale, husband and wife, Plaintiffs-Respondents-Cross Appellants, v. Mary Ellen WALSH and Robert V. Edington, Defendants-Appellants-Cross Respondents.

No. 14927.

Court of Appeals of Idaho.

July 28, 1987.

As Modified on Denial of Rehearing Nov. 3, 1987.

Petition for Review Denied Dec. 9, 1987.

Herman J. McDevitt (argued), of McDevitt, McDevitt & Meyers, Pocatello and Daniel P. McKernan, Blackfoot, for defendants-appellants-cross respondents.

Michael D. Crapo, of Holden, Kidwell, Hahn & Crapo, Idaho Falls, for plaintiffs-respondents-cross appellants.

UPON REHEARING, THE OPINION OF THE COURT ISSUED MAY 6, 1986, IS HEREBY WITHDRAWN.

THIS OPINION IS SUBSTITUTED.

SWANSTROM, Judge.

Thomas and Margaret Hale sought equitable relief and damages against officials of Idaho State University (ISU) under 42 U.S.C. § 1983 after Thomas Hale's employment as a teacher was terminated. The Hales claimed that he had been "fired" for exercising his constitutional right of freedom of speech and association. After a trial, the jury found Robert Edington (Dean of the College of Liberal Arts) and ISU Assistant Vice President Walsh had deprived Hale of his first amendment rights of free speech and association. The Hales were awarded $100,000 in compensatory damages. Hale then moved for reinstatement at ISU and for an award of attorney fees under 42 U.S.C. § 1988. The district court declined to grant either remedy. Likewise, the district court denied motions by defendants Walsh and Edington for a judgment notwithstanding the verdict (n.o.v.) or for a new trial. Walsh and Edington appeal, contending that the court erred in denying these motions. They ask this Court to decide whether the jury instruction, defining constitutionally protected speech, was a correct interpretation of the law. Second, appellants question whether substantial and competent evidence supports the jury's verdict. By cross-appeal, Hale raises three more issues: whether the court erred in granting a motion for a directed verdict in favor of ISU President Coulter at the close of the evidence; whether Hale was entitled by federal law to reinstatement at ISU; and whether he was entitled to an award of attorney fees under 42 U.S.C. § 1988.

For reasons hereinafter stated, we affirm in part. We vacate the order denying appellants' motions for a judgment n.o.v. or for a new trial. We vacate the order denying Hale's request for reinstatement and the order denying Hale an award of attorney fees under 42 U.S.C. § 1988. We remand the case to the district court for reconsideration of the damages, reinstatement and attorney fees.

The case is one of first impression in Idaho. We will begin by first noting the undisputed facts established at trial. Hale was hired to chair the history department and serve as a faculty member in the College of Liberal Arts at ISU in 1977. Hale was employed under a series of one-year contracts as an untenured faculty member. An ISU faculty member had to serve five years before tenure consideration. After two years, Hale was evaluated favorably as a faculty member, and in 1980 he was reappointed to serve another three-year term as chairman of the history department, subject to the pleasure of the Dean of the College of Liberal Arts, Dean Edington. However, in 1981, after serving only one additional year as chairman of the history department, Hale was given a one-year "terminal contract" which ended his employment at ISU on June 30, 1982. ¹ Hale brought suit against Assistant Vice President Walsh, Dean Edington, President Coulter, the Idaho State Board of Education and its individual members for compensatory and punitive damages under 42 U.S.C. § 1983. The board members in their individual capacity were summarily dismissed; however, Hale was allowed to proceed against board members in their corporate capacity. In light of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), the punitive damage claim was dismissed with prejudice against the board. Punitive damage claims against Assistant Vice President Walsh, Dean Edington and President Coulter were dismissed pursuant to a stipulation between the parties. President Coulter was dismissed from the suit at the close of the trial. ²

CONSTITUTIONALLY PROTECTED SPEECH

The crux of Hale's claim was that officials at ISU had deprived him of his constitutionally protected right of speech and/or association. At trial Hale argued there were three incidents where he engaged in constitutionally protected speech which were the cause of his termination. First, early in 1980, Hale became embroiled in a dispute known as the "Brigham affair." This dispute centered on whether a student (Brigham) could substitute a previously taken class in lieu of a seminar requirement needed for a social science degree. The college catalog required waivers to be approved by the chairman of the department. The student's petition for waiver was originally denied by Hale. In his denial letter, Hale set forth thirteen reasons for his position.

The student appealed the decision to Assistant Vice President of Academic Affairs, Walsh, who recommended a method be established to allow the course waiver. An unwritten agreement was entered into whereby the student would submit a paper in lieu of the seminar requirement. The agreement was terminated by Hale when he questioned the originality of the student's paper. A new appeal was brought. Upon review by Dean Edington a new written agreement was entered into requiring a paper. The agreement was terminated by Hale when the student failed to turn in all books and note cards used in drafting his paper as required by Hale. At this time Dean Edington agreed with Hale's decision not to allow the waiver. The student again appealed and a special meeting was held whereby the student, Hale, Dean Edington and Dr. Kegel ³ met and discussed the matter. At the direction of Edington and Kegel the agreement was reinstated and Hale appealed the decision to ISU's judicial board and to the President of ISU. Throughout this affair, Hale contended the student was receiving special treatment because he was the son-in-law of a Dean Emeritus at ISU.

The matter remained dormant while Hale took a trip to London in the summer of 1980. Upon his return from London, however, Hale wrote a new letter to the President of ISU and asked him to review the situation and to reinstate Hale's original decision not to allow the waiver. Hale alleged that this so-called "petition letter" prompted Dean Edington to immediately suspend Hale as chairman of the history department. However, the matter was resolved before the suspension became effective and Hale's "petition" was dropped. No further action was taken to suspend Hale as department chairman. After the incident Dean Edington wrote a letter to Hale stating: "Let me assure you here, as I have in conversations with you, that nothing that has transpired in this case will in any way affect my sincere respect for you as a person and a professional, nor will it jeopardize in any way my consideration of your candidacy for tenure or promotion."

The second incident, which Hale contends involved constitutionally protected speech, occurred after Hale became president of the ISU chapter of the American Federation of Teachers (AFT). In February of 1981, Governor Evans was to visit the campus. A disagreement surfaced between Hale and President Coulter over who had invited the governor to ISU. Both parties claimed credit for the invitation. The matter came to a head when Hale issued a press release through the University News Service emphasizing AFT's involvement in bringing Governor Evans to ISU. President Coulter immediately superseded Hale's news release by issuing a revised news release giving Coulter credit for the governor's visit to ISU.

The third incident occurred one day before Hale was notified of his termination, when a local newspaper article quoted Hale's comments which were critical of administration policy in handling ISU's financial crisis. Finally, as an example of the "administration's" attitude toward him, Hale introduced evidence involving use of the campus mail system. After Hale received notice that he was being given a "terminal contract," his chapter of AFT sought to establish a fund for Hale's legal expenses in connection with his termination. The AFT prepared a circular to solicit funds. However, the circular which was placed in the campus mail, without postage, was removed from the mailboxes because someone in the administration claimed it was "political."

In response to Hale's allegations, appellants denied he was fired because of any constitutionally protected speech. They alleged instead he was given a terminal contract of employment because of a poor evaluation on his application for promotion to the rank of associate professor. The "Promotion Consideration Committee" investigating Hale recommended he be "considered" for promotion. The committee rated him as "strong" with "reservations." Reservations included his inability to communicate and work well with students and other faculty members in the department. Hale's response to the committee report was: "This report is going to get me fired."

The appellants also contended that Hale harassed students, similar to his behavior in the "Brigham affair," which they felt was unreasonable and unprofessional. Therefore, appellants have insisted that their reasons for terminating Hale were for professional, not personal, reasons. In addition, they argued there was evidence to show that Hale took an active role in the local AFT chapter with the idea that he would have a pulpit to criticize the administration at ISU without fear of retaliation. If retaliation were to occur he would claim "union involvement" as the reason.

Other conflicting evidence surfaced throughout the trial. Hale...