Steinbuch v. Univ. of Ark.

• Decision Date: 05 December 2019
• Docket Number: No. CV-18-973,CV-18-973
• Parties: Robert STEINBUCH, Appellant/Cross-Appellee v. UNIVERSITY OF ARKANSAS a/k/a University of Arkansas-Little Rock ; The Trustees of the University of Arkansas; Michael Schwartz, in His Official and Personal Capacity; Theresa Beiner, in Her Official and Personal Capacity; JoAnn Maxey, in Her Official Capacity; John M.A. DiPippa, in His Official Capacity; and Velmer Burton, in His Official Capacity, Appellees/Cross-Appellants
• Court: Arkansas Supreme Court

2019 Ark. 356

589 S.W.3d 350

Robert STEINBUCH, Appellant/Cross-Appellee

v.UNIVERSITY OF ARKANSAS a/k/a University of Arkansas-Little Rock ; The Trustees of the University of Arkansas; Michael Schwartz, in His Official and Personal Capacity; Theresa Beiner, in Her Official and Personal Capacity; JoAnn Maxey, in Her Official Capacity; John M.A. DiPippa, in His Official Capacity; and Velmer Burton, in His Official Capacity, Appellees/Cross-Appellants

No. CV-18-973

Supreme Court of Arkansas.

Opinion Delivered: December 5, 2019

Corbitt Law Firm, PLLC, North Little Rock, by: Chris P. Corbitt, for appellant.

David A. Curran, Little Rock, Office of the General Counsel, for appellees.

Special Justices James Crouch, Roger Rowe, and Doug Schrantz join.

JOHN DAN KEMP, Chief Justice

Appellant Robert Steinbuch appeals the Pulaski County Circuit Court's dismissal of his action against appellees University of Arkansas a/k/a University of Arkansas-Little Rock ("UALR"), the Trustees of the University of Arkansas, Michael Schwartz in his official and individual capacities, Theresa Beiner in her official and individual capacities, JoAnn Maxey in her official capacity, John M.A. DiPippa in his official capacity, and Velmer Burton in his official capacity. On appeal, Steinbuch argues that the circuit court erred by requiring him to pay for counsel of the representatives of a class of students implicated in his 2015 Arkansas Freedom of Information Act ("FOIA") request, by dismissing his claims for injunctive and monetary relief against the official-capacity defendants based on sovereign immunity, by dismissing individual-capacity claims against Schwartz and Beiner, and that the University affirmatively waived sovereign immunity on a claim under the Arkansas Whistle-Blower Act ("AWBA"). Appellees (collectively "the University") cross-appeal, asserting that the circuit court erred in denying Schwartz and Beiner's dispositive motion asserting statutory immunity, allowing the AWBA claim to go forward without cognizable allegations of "adverse action," denying the University's motion to dismiss UALR as a party that lacks legal capacity to be sued, and allowing Steinbuch to pursue a claim against JoAnn Maxey in her official capacity. We affirm on direct appeal and dismiss the cross-appeal.

I. Facts

Steinbuch, a professor at the William H. Bowen School of Law ("Law School") made several FOIA requests between 2012 and 2015 in connection with research he was conducting. His October 12, 2015 request consisted of spreadsheets, which included the name, LSAT score, undergraduate GPA, law school GPA, race, sex, full-time or part-time status, residency, graduation month, graduation year, and bar-passage information for every student over a ten-year period. Claiming that a release of unredacted documents would violate the students' privacy rights, the Law School produced a redacted version of the requested spreadsheet.

On November 17, 2015, Steinbuch filed a complaint in the Pulaski County Circuit Court alleging FOIA violations against UALR and Schwartz in his official capacity as then dean of the Law School. Steinbuch filed an amended complaint on November 23, 2015, in which he again claimed that UALR and Schwartz violated FOIA and sought an order for the production of an unredacted copy of the spreadsheet. He also added a claim against UALR and Beiner, in her official capacity, alleging violations of the AWBA, Ark. Code Ann. §§ 21-1-601 et seq. (Repl. 2016 & Supp. 2017), for retaliatory actions against Steinbuch as a result of his original complaint. Specifically, Steinbuch claimed that, on November 19, 2015, Beiner, then associate dean of the Law School, contacted a minority student from one of Steinbuch's classes and asked the student whether Steinbuch had discussed his race-related research with the class.

On December 10, 2015, Steinbuch filed an ex parte petition for temporary restraining order and petition for preliminary injunction in which he alleged that on November 27, 2015, Law School professors Adjoa Aiyetoro and Sarah Jenkins emailed Beiner about Steinbuch's lawsuit and grading policies. In response to the email from Aiyetoro, Beiner wrote,

Thank you for your e-mail about some of the concerns raised by this. I've been in touch with [Schwartz], and he and I are discussing how best to proceed. One or both of us will be in touch soon. In the meantime, if you, Sarah, or Ranko have any further thoughts on this, I welcome hearing from you.

Schwartz then forwarded Aiyetoro's and Jenkins's emails to Steinbuch and others involved, writing, in pertinent part,

Normally, if I were to receive a message like the message below, either Terri or I would forward the message to the faculty member in question (in this case you, Rob), and we would work through the issues with all involved. However, because I am a named defendant in the referenced lawsuit, by copy of this message to Dr. Toro, I am asking Dr. Toro to investigate and resolve the issues.

In Steinbuch's petition, he sought to "prevent[ ] Defendants or their agents or representatives from any further retaliation against Plaintiff," including, but not limited to, his requested attendance by Zulma Toro, then UALR provost, at an investigatory meeting. On December 29, 2015, Steinbuch filed a second ex parte petition for temporary restraining order and petition for preliminary injunction. That same day, Steinbuch filed a second amended complaint, adding Toro and Maxey, an attorney in the University of Arkansas Office of General Counsel, as defendants in their official capacities.

On January 25, 2016, the circuit court held a hearing on Steinbuch's petitions for temporary restraining order and preliminary injunction. It did not enter an order on those petitions until April 8, 2016. In the meantime, Steinbuch filed his third amended complaint on February 18, 2016. The University moved to dismiss that complaint, arguing that the requested records were exempt from FOIA, that the allegations failed to demonstrate "adverse action" as required under the AWBA, that neither Maxey nor Beiner was Steinbuch's "public employer" under the AWBA, and that UALR was not an entity amenable to suit. On April 8, 2016, the circuit court denied the University's motion.

That same day, the circuit court denied Steinbuch's petitions for temporary restraining order and preliminary injunction and found that both petitions were moot because Toro had concluded the investigation one business day prior to the January 25 hearing. The circuit court ruled sua sponte that "the graduates of UALR Bowen School of Law, whose records are implicated by Plaintiff's FOIA request that underlies the instant litigation, are necessary parties in this matter under Rule 19(a) of the Arkansas Rules of Civil Procedure" because they may have constitutional privacy rights implicated and their potential rights "are not adequately represented by either party." Thus, Steinbuch was ordered to file a class-action complaint that named one or more of the students implicated by the 2015 data request and pay the attorney's fees of class counsel.¹

On August 19, 2016, Steinbuch filed his fourth amended complaint, naming Beiner and Schwartz in their official and individual capacities and adding a claim of tortious interference with an employment contract. He also alleged that his free-speech rights under the Arkansas Constitution and United States Constitution, as well as his right to academic freedom, had been violated. The case was removed to federal district court on August 30, 2016, and then remanded to state court on August 29, 2017, after Steinbuch dropped his federal claim. On January 2, 2018, the circuit court entered an order giving Steinbuch thirty days to file a fifth amended complaint that complied with Ark. R. Civ. P. 8(a) and sixty days to comply with its April 8, 2016 order regarding former students.

Steinbuch filed his fifth amended complaint on February 2, 2018,² and added as defendants John DiPippa and Velmer Burton in their official capacities as the Law School dean and UALR provost, respectively. He also added a claim under the Arkansas Civil Rights Act ("ACRA") and a claim of civil conspiracy. On February 20, 2018, the University filed a motion for partial judgment on the pleadings as to all the non-FOIA claims, arguing that the institutional and official-capacity claims were barred by sovereign immunity, that the equitable claims either were barred by sovereign immunity or were moot, that the individual-capacity claims were barred by statutory immunity, and that he had not alleged cognizable claims for tortious interference or conspiracy. In a sixth amended complaint, Steinbuch supplemented his previous complaint by adding Evelyn Gomez and Misty Peltz Steele as the representatives of the law-school class of graduates whose data was being sought.

On May 14, 2018, the circuit court dismissed the FOIA claim (count 1) with prejudice because the parties had negotiated a settlement on that claim. The court also found that

there is no longer a need for a class of graduates of UALR Bowen School of Law to participate in this case. The putative class representatives, Evelyn Gomez and Misty Peltz-Steele, are hereby dismissed as separate defendants in this action. In addition, there is no need for an attorney for a putative class to participate as counsel in this case.

After a hearing on the University's motion for partial judgment on the pleadings, the circuit court entered an order granting the motion, entering judgment on the pleadings, and dismissing the remaining five claims on August 6, 2018.³ It also denied Schwartz and Beiner's claim to statutory immunity "because discovery is required to develop the facts related to statutory immunity." The circuit court then found that "[a]ny official-capacity claims, individual-capacity claims, or claims against UA/UALR that have not been specifically addressed in this Order are dismissed with prejudice." It concluded,

The

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