Stebbins v. Weaver

• Decision Date: 03 June 1975
• Docket Number: No. 72-C-111.,72-C-111.
• Parties: John L. STEBBINS, Jr., Plaintiff, v. John C. WEAVER and Board of Regents of the University of Wisconsin System, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

396 F. Supp. 104

John L. STEBBINS, Jr., Plaintiff, v. John C. WEAVER and Board of Regents of the University of Wisconsin System, Defendant.

No. 72-C-111.

United States District Court, W. D. Wisconsin.

June 3, 1975.

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John S. Williamson, Jr., of Goldberg, Previant & Uelmen, Milwaukee, Wis., for plaintiff.

Betty R. Brown, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., Madison, Wis., for defendant.

JAMES E. DOYLE, District Judge.

This is a civil action for declaratory and injunctive relief. Jurisdiction is invoked pursuant to 42 U.S.C. § 1983. The amount in controversy is alleged to exceed ten thousand dollars exclusive of interest and costs.

Plaintiff seeks a declaratory judgment holding that, both as to form and result, the procedures by which he was denied tenure as a member of the faculty of the University of Wisconsin-Milwaukee violated the due process clause of the Fourteenth Amendment of the United States Constitution. He further seeks injunctive relief reinstating him as an assistant professor, and barring the defendants both from denying him tenure without awarding him a hearing procedure comporting with constitutional requirements and from filling any tenured positions in the Mathematics Department of the University of Wisconsin-Milwaukee until such time as a final decision regarding the plaintiff's tenure is reached by means of a constitutionally adequate decision-making process.

Defendants have moved to dismiss this action on the grounds that this court lacks jurisdiction over the subject matter and that the complaint fails to state a claim upon which relief can be granted. It is to this motion that this opinion and order are addressed.

For the purpose of this motion, I take as true the allegations of the complaint, construed liberally to the plaintiff. Those allegations are summarized in the following section of this opinion headed "Facts."

Facts

Plaintiff is a Wisconsin resident. Defendants Weaver, President of the University of Wisconsin System, and the Board of Regents of the University of Wisconsin System are legally empowered to govern and manage public higher education in Wisconsin, and to appoint professors at the University of Wisconsin-Milwaukee. In 1965 plaintiff was retained by the predecessors of the defendants as an assistant professor in the Mathematics Department of the University of Wisconsin-Milwaukee pursuant to a three-year contract. At the time of his appointment, the plaintiff was informed that with normal development in the areas of teaching, research, and community service he could expect to obtain tenure. During the ensuing six years the plaintiff enjoyed an extremely successful teaching career, was productive both in terms of academic publishing and community service, received a second three-year contract at the conclusion of the first three years, was awarded merit salary raises, and was assigned expanded duties.

In January of 1970, however, the Executive Committee of the Department of Mathematics met and voted to terminate plaintiff's faculty appointment. Plaintiff was not notified of the meeting, nor given an opportunity to be heard, nor allowed to confront the witnesses against him, nor permitted to submit to the Committee copies of his professional works or a record of his accomplishments.

On July 6, 1970 the Executive Committee met again, and took a position on the reasons for which the plaintiff was denied tenure: (a) his research was not such as to warrant promotion; and (b) his area, namely, complex analysis, was adequately covered by tenured faculty in the Department. Again the plaintiff was not given an opportunity to be present at the Committee's meeting. Four months later, the Committee voted to promote and to award tenure to an assistant professor, other than plaintiff, who was also untenured and who had the same research specialty. Because the conduct and decisions of the Executive Committee were repeatedly disapproved by the Dean of the College of Letters and Science, the Executive Committee became hostile toward plaintiff.

In March of 1971, the Executive Committee held hearings on the issue of reopening its earlier decision regarding the plaintiff's tenure status. After four days of hearings, during which the plaintiff was given an opportunity to present information concerning his qualifications the Committee voted to allow their original decision to stand, thus denying the plaintiff tenure status and effectively terminating his employment at the University. Two of the committee members who participated in the vote on whether the plaintiff's case should be reopened did not attend the "substantive portions of the hearings." The Committee refused plaintiff's request that its decision be based solely on the evidence adduced at the hearing. The Committee refused to disqualify from participation in the hearing or subsequent vote members who had participated in the earlier decision then under review. Plaintiff was not allowed to examine Committee members as to the evidence upon which they had made their earlier decisions to deny him promotion. The Committee refused to state in writing the evidence upon which it based its determinations. No information unfavorable to the plaintiff was presented at the hearing. Information overwhelmingly favorable to the plaintiff was presented at the hearing.

The plaintiff then appealed both alleged procedural errors by, and the substantive decisions of, the Executive Committee to the Dean of the College of Letters and Science of the University of Wisconsin-Milwaukee, then to the University of Wisconsin-Milwaukee University Committee, then to the defendant Weaver, and finally to the defendant Board of Regents. Each reviewing agency or person allowed the decision of the Executive Committee to stand.

Opinion

I. Jurisdiction

A. 28 U.S.C. § 1343(3).

Defendant Weaver argues that this court lacks subject matter jurisdiction over this suit against him, as he is being sued in his "official capacity" and is therefore not a "person" within the meaning of 42 U.S.C. § 1983.¹ I hold that defendant Weaver is a "person" for the purpose of § 1983 regardless of whether he is being sued in an individual or official capacity.

Since Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), it has been clear that state officials charged as individuals with unconstitutional activity are amenable to suit under 42 U.S.C. § 1983. Federal jurisdiction may also be exercised through § 1983 to redress constitutional wrongs ". . . through requiring appropriate official acts by officials sued in their representative capacities." Harkless v. Sweeny Independent School District, 427 F.2d 319, 323 (5th cir. 1970). The Supreme Court has frequently permitted relief under § 1983 against state officials sued in this representative capacity.² See, e. g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Although the distinction between a suit against a state official individually and one naming that same defendant in an official capacity may be relevant to issues of constitutional or common law immunity (see the following section of this opinion), it is immaterial to the definition of the term "person" in § 1983. Defendant Weaver is a "person" under § 1983, and subject matter jurisdiction over the suit against Weaver is present under 28 U.S.C. § 1343(3).

The defendant Board of Regents also contends that this court lacks subject matter jurisdiction in this suit against it, arguing that state agencies are not "persons" for the purpose of § 1983. It is true that other circuits have held state agencies in general and educational institutions in particular to be outside the scope of § 1983. See, e. g., Whitner v. Davis, 410 F.2d 24 (9th cir. 1969); Blanton v. State University of New York, 489 F.2d 377 (2nd cir. 1973). The law of the Seventh Circuit, however, is quite clearly to the contrary. In Lee v. Board of Regents of State Colleges, 441 F.2d 1257 (7th cir. 1971), a state agency similar to the present Board was held to be a "person" for the purpose of 42 U.S.C. § 1983. See also Roth v. Board of Regents of State Colleges, 310 F.Supp. 972, 974 (W.D.Wis.1970), aff'd 446 F.2d 806 (7th cir. 1971) rev'd on other grounds, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The defendant Board argues that these Seventh Circuit decisions were implicitly overruled by the Supreme Court's decisions in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In Moor, elaborating on its holding in Monroe v. Pape, supra, the Court held counties not to be "persons" for the purposes of § 1983. Bruno established that municipalities were not "persons" under § 1983 irrespective of the relief requested in any action brought against them. The defendant argues that a state agency is a "political subdivision" of the state, and therefore no more subject to suit under § 1983 than are cities and counties. See Moor, 411 U.S. at 693, 93 S.Ct. 1785.

The Monroe, Moor, and Bruno decisions were exercises in statutory interpretation. In each case the Court turned to the legislative history of § 1983 to find an explicit intent to exclude cities and counties from the scope of that statute. The decision to exclude "municipalities" from the reach of § 1983 was prompted by a fear on the part of influential House members that Congress lacked "the constitutional power to impose liability" upon such entities. Moor, 411 U.S. at 709, 93 S.Ct. at 1796. In the opinion of these congressmen, the Congress had the power to impose liability on the states on the one hand and individuals on the other, but not "local subdivisions" of government. Ibid., footnote 24. The Conference Committee was told by the delegates from the House that a section of the Senate's proposed b...