Sherman v. Curators of University of Missouri

• Decision Date: 22 March 1994
• Docket Number: No. 93-2748,93-2748
• Citation: 16 F.3d 860
• Parties: 89 Ed. Law Rep. 750 Charles SHERMAN, Appellant, v. CURATORS OF the UNIVERSITY OF MISSOURI, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 860

16 F.3d 860

89 Ed. Law Rep. 750

Charles SHERMAN, Appellant, v. CURATORS OF the UNIVERSITY OF MISSOURI, Appellee.

No. 93-2748.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1994.

Decided Feb. 14, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied March 22, 1994.

Counsel who presented argument on behalf of the appellant was Ronald F. Bunn of Columbia, MO. Loramel P. Shurtleff also of Columbia, appeared on the brief.

Counsel who presented argument on behalf of the appellee was Susan Ford Robertson of Columbia, MO. Marvin E. Wright and Jeffrey H. Blaylock also of Columbia, appeared on the brief.

Before BOWMAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BRIGHT, Senior Circuit Judge.

The University of Missouri hired Charles Sherman as an assistant professor of journalism in 1989, then fired him approximately four years later. Following his termination, Sherman sued the University through its Curators seeking damages on breach of contract and promissory estoppel theories. ¹ The Curators moved immediately to dismiss the action, asserting that the eleventh amendment barred Sherman from bringing suit against the University in federal court. The district court granted the Curators' motion and dismissed the case.

Sherman now appeals, challenging the district court's method of analyzing the eleventh amendment immunity question. Specifically, Sherman contends that the district court erred by failing to consider whether the University maintained non-state funds out of which a judgment in his favor could be paid. We now reverse and remand this case for further proceedings.

I. BACKGROUND

In 1988 the University's School of Journalism contacted Sherman, then working at the Paris office of the International Herald Tribune, regarding an open position as an untenured assistant professor. In 1989 Sherman accepted an offer to teach at the University and commenced doing so during the winter term. The University terminated Sherman in 1993.

The parties entered into no formal written contract. Instead, Sherman now sues based on promises contained in two letters from George Kennedy, the School of Journalism's Associate Dean.

Sherman contends that Kennedy's offer letters contained specific conditions of employment and that Sherman relied on those representations in deciding to leave his higher-paid position in Paris and accept the professorship. Most importantly, Sherman alleges that Kennedy's letters included a promise that as an assistant professor, Sherman would have six years to demonstrate his qualifications for tenure.

Following his termination, Sherman moved to Wisconsin. He then filed this diversity action against the University on breach of contract and promissory estoppel theories. ² Specifically, Sherman alleged that the University breached the stated (or reasonably implied) terms of its initial employment offer by failing to permit him six full years to establish tenure qualifications. Sherman also alleged that he relied to his detriment on other unfulfilled promises relating to research support and classroom scheduling.

The Curators moved for dismissal of Sherman's action based on eleventh amendment immunity. The Curators submitted suggestions in support of their motion, and Sherman submitted suggestions in opposition. Sherman's suggestions in opposition to the motion included factual allegations about the University's numerous non-state revenue sources, and its overall level of autonomy from the State. Appellant's Appendix at 24.

The district court granted the Curators' motion and dismissed the case. Relying on provisions of the Missouri Constitution and state statutes, as well as Hoferek v. University of Missouri, 604 F.Supp. 938 (W.D.Mo.1985), the district court stated: "Defendant is an instrumentality of the State of Missouri. This Court has previously found that defendant enjoys Eleventh Amendment immunity." Order (6/8/93) at 1 (internal citations omitted). Sherman timely appealed the dismissal.

II. DISCUSSION

Sherman contends that the district court erred in failing to properly analyze the issue of whether the University shares in the State of Missouri's eleventh amendment immunity.

The eleventh amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. While the eleventh amendment bars private parties from suing a state in federal court, state-connected entities or subdivisions do not always share in their state's immunity. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977) (eleventh amendment bar to suit in federal courts extends to states and state officials in appropriate circumstances, but not to counties and similar municipal corporations). Courts considering an entity's claim of eleventh amendment immunity must therefore determine " 'whether the suit is in reality a suit against the state.' " Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir.1985) (quoting Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (5th Cir.1982)). In making this determination courts consider as a critical factor whether any judgment rendered against the entity would ultimately come out of state funds. Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974).

Federal courts have confronted with some regularity the question of whether state universities share in their respective state's eleventh amendment immunity; the vast majority of courts have found that they do. ³ The fact that an overwhelming majority of state universities possess eleventh amendment immunity, however, does not control the outcome of this appeal. Each state university claiming eleventh amendment immunity " 'must be considered on the basis of its own particular circumstances.' " Greenwood, 778 F.2d at 453 (quoting Soni v. Board of Trustees of Univ. of Tennessee, 513 F.2d 347, 352 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976)).

In Greenwood, we reviewed a district court finding that the University of Arkansas at Little Rock shared in the State of Arkansas' eleventh amendment immunity. "[U]nable to determine ... the basis for [the district court's] decision," Greenwood, 778 F.2d at 454, from its one-sentence opinion, we remanded for more detailed findings. We further established a framework for determining whether the eleventh amendment applies to a subdivision of the state:

'Courts typically look at the degree of local autonomy and control and most importantly whether the funds to pay any award will be derived from the state treasury.'

Id. at 453 (quoting Laje, 665 F.2d at 727).

Sherman contends that the district court failed to analyze whether the University maintains non-state funds out of which the judgment could be paid, and failed to consider the University's overall degree of autonomy from the State of Missouri. We agree that the analysis reflected in the district court's Order fails to meet the demands of Greenwood. Nothing in the district court's Order indicates that the court considered Sherman's factual allegations about the University's autonomy, funding sources, or non-state revenues. ⁴

The Curators assert that although the district court did not expressly discuss any factual considerations in its Order, the court did consider the unique characteristics of the University before making its immunity determination. The Curators further maintain that the district court properly grounded its finding of eleventh amendment immunity on federal district court and Missouri cases which have found the University to be an "arm of the state" entitled to partake of the state's immunity. See Hoferek, 604 F.Supp. at 940; Hemphill v. Moore, 661 F.Supp. 1192, 1195 (E.D.Mo.1987); Krasney v. Curators of Univ. of Missouri, 765 S.W.2d 646, 649 (Mo.Ct.App.1989); Strong v. Curators of Univ. of Missouri, 575 S.W.2d 812 (Mo.Ct.App.1978). Stare decisis, according to the Curators, requires that we affirm the dismissal here.

While the Curators assert correctly that federal courts consider state law in determining whether a state-related entity shares eleventh amendment immunity, see Greenwood, 778 F.2d at 453 (court must examine entity's characteristics "as created by state law"), the state court cases cited by the Curators are inapposite because they concern the University's status with respect to sovereign immunity rather than eleventh amendment immunity. ⁵

The two federal district court cases cited by the Curators, Hoferek and Hemphill, hold that the University shares in the State of Missouri's eleventh amendment immunity. Neither Hoferek nor Hemphill, however, analyzed the University's eligibility for eleventh amendment immunity in accordance with the requirements of Greenwood. Hoferek, decided before Greenwood, contains no factual analysis of the University's autonomy or ability to pay judgments out of non-state funds. Hoferek, 604 F.Supp. at 940 ("Putting aside the semantics and nuances of University funding, the Curators of the University of Missouri presumptively represent the State of Missouri") (emphasis added). Hemphill, decided after Greenwood, comes closer to following our directives, but also falls short of the mark.

In Hemphill, the district court stated: "Based upon the Curators' limited autonomy and the source of university funding, this Court concludes that the Board of Curators is entitled to immunity from suits for money damages under the Eleventh Amendment." Hemphill, 661 F.Supp. at 1195. Our review of Hemphill, however, reveals that while the district court conducted some independent statutory analysis, it failed to make any factual findings on the critical issues of the University's level of autonomy and sources of judgment...