*1 house, a limou- corporations, lies’ various jet airplane.
sine, Royce, and a Rolls district court in the other actions
lies’ his claims of with
also are inconsistent regarding arose the issue When
indigency. following jury ver- status
lies’ custodial lies stated
dict, example, trust. out bond
willing post [Trial setting aside Even
transcript at 2179.] suggest lies’ at-
these considerations process, the trial we manipulate
tempt to did that the district
are convinced rights on Amendment
violate his Sixth issues.
these
VI. lies argument remains.
One last assist denied effective he was
argues that to address We decline
ance of counsel. present first since lies
this claim court. United States v.
to the See district Cir.1989); (6th Swidan, 888 F.2d Hill,
United States curiam).
Cir.1982) (per reasons stated
Accordingly, for
above, district court’s AFFIRM defen- prejudice to the
judgment, without assistance of his ineffective
dant raise proper post-conviction in a
counsel claim
proceeding. EDINGER, Plaintiff-Appellant,
Dennis MOREHEAD REGENTS OF
BOARD OF UNIVERSITY, al., et STATE
Defendants-Appellees.
No. 89-5532. Appeals, Court of States
United Circuit.
Sixth 2, 1990.
Argued Feb. July
Decided
gents may grant tenure to a mem- successfully proba- has ber who served a tionary period years of not more than five tenure-earning position in a the rank above instructor_” provid- ed that tenure is not after the “[i]f probationary period, notice of termination in given writing shall be not later than year April preceding 30 of the academic termination.” August Edinger given In Dr. was contract, removing him “terminal” from employ completion after the MSU’s year. Edinger 1982-83 academic brought separate action in federal court based on MSU’s failure to renew his con- Brooks, (argued), Arthur L. Brooks Coff- year. tract for the 1983-84 academic Noland, man, Lexington, Ky., Fitzpatrick & in reinstating suit resulted a settlement plaintiff-appellant. promoting him full to MSU and (ar- Bryan, Robert L. Chenoweth F.C. professor. J.App. 133-34. In accord- Chenoweth, Fogle Frank- gued), Bryan, & agreement, ance with the settlement on fort, defendants-appellees. Ky., for April was notified letter that he had been MERRITT, Judge; Before: Chief professor. His contract for TAYLOR, JONES, Judge; and Circuit year academic was marked “tenure-track.” Judge.* District Believing that his contract should have he had been marked “tenured” because JONES, R. Circuit NATHANIEL five-year probationary peri- completed his Judge. od, Edinger signed the 1984-85 con- Ph.D., appeals the Edinger, Dr. Dennis stating tract and attached a letter to summary judgment district court’s incorrectly was marked “ten- the contract to the Board of of Morehead State received no re- ure-track.” (MSU) brought this action sponse letter. to his alleged denial under 42 U.S.C. 1983 for § spring we process. Because academic ceived a contract for the 1985-86 court that Dr. Ed- agree with the district year was marked “tenured.” The which inger lacks a signed by the Vice-President MSU, affirm. employment at continued contained the fol- of Academic Affairs and lowing proviso: “The of More- I. University has recommended head State university position your appointment to the Edinger began employment with pro- below January 1979 as an associate described [Professor Education] approval Re- subject of education. His fessor (emphasis at 70 gents_” for the first a non-tenure-track basis on and now Edinger signed the contract August Dr. Ed- year and half. led him to believe changed to claims that the contract inger’s employment status was time, notwithstanding its At that he had obtained tenure-track. MSU’s Di- proviso. spring In the MSU's “[ujpon the recommen- policy provided that informed Dr. Re- rector of Personnel Services president, of the the Board of dation * designation, sitting by Diggs Taylor, Anna United States Dis- Honorable Michigan, Judge District of trict Eastern make a nonmoving party must 56(c). The on the notation “tenured” that the exist- establish the showing adequate to error to be an appeared 1985-86 contract of his case element meetings of the an essential ence of minutes proof the burden not reveal he would bear Regents did *3 Catrett, 477 U.S. granted tenure. formally Corp. v. been trial. Celotex Edinger had 2548, 2552, 91 L.Ed.2d 317, 323, 106 S.Ct. or issue individual negotiate (1986). for the 1986-87 academic
written contracts Eding- reveals that record year, the but university’s employ. in the er continued Formal Tenure A. year, Dr. academic the Following by the protected Property interests renewed appointment the Fourteenth of process clause due 8, 1988. How- through July
June
defined
created and
are
Amendment
letter,
ever,
in June
a
Regents
to state law. Board
reference
of
appointment with
that
was notified
July
effective
be terminated
MSU would
(1972). Ky.Rev.Stat.
L.Ed.2d 548
actions, Dr.
response to MSU’s
1988. In
1989)
164.360(1)(Baldwin
provides:
Ann. §
1983 ac-
section
this
Edinger commenced
may appoint
for
a
regents
District Court
States
tion in the United
board of
Each
Kentucky.
of
of
District
recommendation
and on the
president,
Eastern
em-
discretion,
of
ap
that his termination
Edinger alleged
may, in its
president
clause of
the due
ployment
employees
violated
and
all
members
point
to the United
Amendment
the Fourteenth
tenure of
compensation
fix their
pled pendent
He
States Constitution.
of sub
service,
provisions
subject to
Kentucky’s state constitution.
claims
(2) of
section.
section
summary judgment,
cross-motions
On
rele-
is also
164.340
Ky.Rev.Stat.Ann. §
magistrate for
to a
referred
the case was
vant:
On Novem-
recommendation.
report and
quarter-
governing board shall meet
The
magistrate recommended
ber
or at such
college
ly at the
The
summary judgment MSU.
granting
upon. Upon
agreed
place
is
as
recommendation
report and
magistrate’s
president of the
request of the
the district court
adopted by
(2)
of the
members
or of two
institution
In rejecting
March
board,
the board shall
of
chairman
deprived him of
his termination
claim that
designat-
place
special meeting at a
call
property interest without
protected
him,
may at such
and the board
ed
law,
court found
the district
process of
any or all busi-
transact
meeting
special
formally granted
been
regular
may transact
that it
ness
Regents.
by the Board of
members of
majority
A
of the
meeting.
not ob-
Edinger had
that Dr.
further
quorum for
shall constitute
board
stemming
tenure —tenure
tained de facto
business,
appro-
no
transaction
creating a reasonable
actions
from MSU’s
any
nor
money shall be made
priation of
employment. Dr.
of continued
requires
disbursement
timely appealed.
Edinger has
authorized,
no teach-
money shall be
dismissed,
a ma-
employed or
unless
er
II.
board
members
all
jority
court’s
the district
de novo
We review
(Emphasis
it.
vote for
Pin
summary
to MSU.
grant of
Edinger argues
Thus, although Dr.
v. Penn.
Transport Co.
ney Dock
public
in the
faculty members
Cir.1988). “[tjenure
Corp., 838
Kentucky is not
colleges and universities
“there
appropriate if
Summary judgment
scheme,” it is
statutory
by a
determined
any
fact
material
issue as
genuine
grant-
only be
tenure can
that formal
judg
to a
clear
party is entitled
moving
university’s
recommendation
ed
law.” Fed.R.Civ.P.
a matter of
ment as
the affirmative
cordingly,
votes of a
the district court did not err in
regents.1
its
finding
board
had not been
granted formal tenure.
argues
initially
formally granted
he was
tenure. There is
B. Tenure
Ratification
support
no record evidence to
this conten
argues
next
that as
Edinger speculates
tion.
that the min
suming there
has been no formal
Regents meeting
of the
utes
this court should hold that
likely
which his tenure was
discussed are
ratified the 1985-86 ten
incomplete
conclusively
and thus do not
by failing
ure contract
to terminate him
demonstrate that he was not
ten
*4
after his probationary period and paying
public body
ure. A
such as the Board of
him for services rendered under the con
Regents may
pronounce
make official
Ratification, however,
tract.
can
be
only through
ments
its minutes. See Staf
accomplished in the same
pre
manner
Casey
v. Board
Education
ford
by Ky.Rev.Stat.Ann.
scribed
164.340 for
§
County,
(Ky.App.
642 S.W.2d
entering
into
an affirmative
1982).
Edinger’s grant
If Dr.
of tenure
contracts —
vote of
majority
the
of the Board of Re
inadvertently
omitted from the min
gents.
Education,
See Goin v. Board
utes,
portions
or if
of the Board’s minutes
City
Frankfort,
Ky.
lost,
S.W.2d
complete power
the Board had
(1944) (“[T]he
is that
the
amend its minutes to reflect the fact that
law
ratify any
Board could
contract it could
Edinger
granted
Dr.
tenure.
been
make ...
such ratification would have
This did
occur in the instant
not
case.
[b]ut
to be made in the same manner and with
Edinger
Dr.
does not controvert
the
formality
the
required
same
that is
to bind
by noting
his
Board’s minutes
that
1985-86
and
unequivocal
Board
must be
in char
contract was marked “tenured” and that a
acter.”)
(citations omitted);
County
Knott
professor
usually
promotion to full
is
ac-
Martin,
Ky.
Education v.
companied by
grant
of tenure. The
(1934) (“It
76 S.W.2d
expressly
stated that the
that, although
established rule
a contract
“subject
approval
grant of tenure was
ostensibly made
a board of education
Regents.”
The fact that
into, still,
may
illegally
have been
entered
signed by
the contract was
an authorized
make,
if it were one it was authorized to
it
statutory
agent does not obviate the
contract,
may ratify
provided
such
the rat
quirement
that the
of the Board
ification is made and done in the manner
approve any grant
Ky.Rev.Stat.
of tenure.
required by
the statute in the
form
164.360(1)
Ann.
and 164.340. Further-
§
(citations
contract.”)
making of
omit
such
more, although
reiterates
ted).
Edinger presents
Because Dr.
no evi
throughout
appellate
his
brief that it is the
Regents ever for
dence that the Board of
practice
grant
custom and
of MSU to
ten-
mally
ratify
the 1985-86 tenure
voted
ure where a
member is
contract,
argument that there was such
his
professor,
fails to mention
full
a ratification must fail.
promotion
professor
that his
was the
result of the settlement
lawsuit.
De Facto Tenure
C.
agreement
settlement
makes no mention of
Edinger’s
final contention
Edinger. Finally,
of tenure to Dr.
possessed
in
granted
claim that he was
objectively
stemming from an
rea
particularly implausible
tenure is
terest
formal
expectation
to demonstrate
sonable
of continued
because he fails
that his
him.
evaluated. Ac- ment
on MSU’s actions toward
fitness for tenure
ever
based
However,
correctly
Ky.Rev.Stat.
1. Dr.
notes that
our review of MSU’s
tenure
supersedes
statutory
policies
us to conclude
MSU’sinternal
Ann.
164.365
all other
leads
that
§
Ky.Rev.Stat.
gives
procedure
provisions
is consistent with
MSU’s Board of
164.360(1), requiring
president’s
jurisdiction
rec-
§
exclusive
over tenure criteria and
Ann.
approval.
process by
which tenure decisions are made.
ommendation and
Board’s
termi-
could
be
Dr. Soni
that
Sindermann, 408 U.S.
Perry v.
hearing.
and a
notice
without
nated
33 L.Ed.2d
held that
Court
Supreme
nearly
com-
(1972), the
as
is not
Edinger’s case
protected prop-
First,
may demonstrate
the facts
Soni.
teacher
as
pelling
prerequisites
erty interest
granted
poli-
suggests
an institution's
shows
While
he
where
tenure.
prereq-
is a
professor
circumstances
full
promotion
practices
cies
or-
promotion was
reasonable
objectively
uisite
made
his service
settlement
Perry,
the court
tenure.
dered
job
expect
him to
or-
promotion was
in which
system agreement
or
however,
no formal
More-
of tenure.
no mention
made
plain-
dered
at which
the institution
existed
evidence
record
over,
is no
there
obtained
to have
claimed
tiff-teacher
fit-
colleagues ever evaluated
distinc-
is a critical
Id. This
tenure.
assurances
gave
him
for tenure
ness
case at bar
Perry
between
tion
tenure.
be
he would
formal code
aof
existence
“the
Soni,
all
where
sharply with
contrasts
precludes
of tenure
granting
governing
as a
functioned
Dr. Soni
purposes
practical
em-
of continued
*5
a reasonable
as such
was viewed
professor,
tenured
extraordinary circum-
ployment absent
that formal
told
was
colleagues,
his
University Ne-
v.
Haimowitz
stances.”
of
forthcoming.
was
tenure
Cir.1978).
(9th
526, 528
vada,
F.2d
depart-
his
informed
he
when
*6
tutionality of Morehead State’s termination
expectation
permanent
ate a reasonable
procedures, I respectfully dissent from the
employment.
Virginia
Sabet v. Eastern
opinion.
Court’s
1266,
Authority,
Medical
775 F.2d
1270
majority recognizes,
As the
the Universi
(4th Cir.1985). See also Doscher v. Semi-
ty,
promoting
after
nole Common Consolidated
Dis-
School
professor upon
completion
of the cus
1,
Tex.,
F.Supp.
trict No.
Cty.,
Gaines
377
tomary five-year, pre-tenure probationary
(N.D.Tex.1974) (Twenty separate
1166
period, subsequently renewed his contract
one-year, non-permanent
newals of
con-
separate
on four
occasions from 1984 to
give
tract insufficient to
rise to reasonable
1987,
one-year
each for a
term. This
expectation
permanent employment).
dealings, coupled
course of
with the fact
explic-
Where the contract makes its terms
contract,
Edinger’s
that Dr.
signed
1985-86
it, and those terms are consistent with an
Affairs,
the Vice-President of Academic
public
policy,
institution’s formal tenure
“tenured,” gave
was marked
rise to a suffi
employee
profess
understanding
cannot
an
ciently strong
expectations
set of
to consti
contrary
language,
to the contract’s
“mutually explicit understanding”
tute a
unlikely in
the extreme that an
“[i]t
had in fact been
institution which has a formal tenure
Sindermann,
Perry
tenure. See
v.
408
precision
writing
stated with
in
has
...
593, 601,
2694, 2699,
U.S.
92 S.Ct.
33
developed
altogether
an
inconsistent infor-
(1972).
L.Ed.2d 570
an “under
Such
policy.”
mal
gents
in their
join the
ment,
decline
I
(1972)(property
2709, L.Ed.2d
University is entitled
conclusion
under
or
“rules
flow
interests
express
I
of law.
as a matter
benefits”);
certain
secure
standings that
whether,
under
however,
view,
as to
.
Higgenbotham,
v
Connell
analy
stage
next
1773, 29 L.Ed.2d
208, 91 S.Ct.
afforded
sis,
procedures
employee’s sum
(public
curiam)
(1971)(per
Zin
constitutionally sufficient
promise
implied
violated
dismissal
mary
—
-,
Burch,
U.S.
ermon
“implied
Such an
employment).
continued
(1990)and Hudson
975, 108 L.Ed.2d
course
created
may be
contract”
Palmer, 468 U.S.
gives
parties
dealing between
be
inquiry would
(1984). That
L.Ed.2d
contract,
by conduct
or
actual
to an
rise
follow
Court
the District
pursued
best
give
party which
by one
statements
sepa
Rather, I write
order.
ing a remand
to es
sufficient
interest
ato
reliance
rise
my view
express
rately
restitu-
right to
estoppel
tablish
created
inadvertently,
University, however
tionary relief.
sufficient
Edinger an
part
University’s
conduct
Other
property
protectable
im-
anof
the existence
reinforced
further
aas
continued
probation-
end
At the
contract.
plied
professor.
*7
his 1984-
Edinger received
ary period,
dissent.
respectfully
I
Accordingly,
“tenure-
marked
contract, which
re-
“tenure-track”
Believing that
track.”
in-
error, Dr.
a clerical
flected
why the
as to
quired
“ten-
marked
instead
not
contract
respond
University’s failure
ured.”
is-
by its
followed
inquiry,
to his
contract
“tenured”
suance
post-probationary
and two more
Ed-
enhance
renewals, only served
system
operating
Edinger,
was not
jur-
decisions from
court
two lower
1. The
employees that sur-
customarily grants
distinguish-
majority are
by the
cited
isdictions
period. As the
probationary
requisite
vive the
Circuit
Although
Fourth
in Sabet
able.
recognized
stated,
“[pjlaintiff
protectable prop-
court
possessed no
plaintiff
year,”
school
school-employer in
one
interest,
her contracts
the medical
erty
Instead,
expectations.
her
policy.
to enhance
did little
officials
had no formal
case
Although the
Doscher,
F.Supp.
towas
at 1171.
clearly established
the school’s
two-,
"explicit
say
that contract
went on
appointments
district
restrict
three-,
Sabet, 775 F.2d
five-year
limitations."
alone do
newals
part of school
or school
probationary
on the
window
No conduct
absence
believe
there to
plaintiff
(e.g.
from the
steps
a letter
led
affirmative
administrators
officials’
tenure) heightening
conferring
otherwise.
vice
distinguishes that
expectations
plaintiff's
Doscher,
case decided
Similarly,
there,
ours.
court,
case from
unlike
plaintiff
district
Texas
notes
Univer
Trustees
Board
v.
Soni
con-
In
tenure
the 1985-86
of
of
of
chairman
mental
347, 351
Tennessee,
F.2d
ap-
“he
sity
responded
tract, the chairman
919, 96
denied,
statement,
426 U.S.
Cir.1975), cert.
a
Such
tenure.”
had
parently
(1976),this court
as-
2623, L.Ed.2d
however, certainly
does not
sys
plain-
tenure
a formal
received
where
the sort
that even
surances
university
Thus,
a
reliance
awards
a
place, when
in Soni.
is in
tiff
tem
prerequisites
misplaced.
employee
Soni is
on
non-tenured
employee to
leads the
otherwise
tenure
that because
maintains
Edinger also
per
his
reasonably believe
employ
in its
remain
him to
permitted
protect
a
may create
manent,
actions
such
he could
period,
probationary
beyond the
interest
property
ed
acquired
reasonably believe
was
visiting professor
Soni, a
ment.
unavailing for
argument
tenure.
law
Tennessee
tenure
ineligible for
given
First,
was
reasons.
two
However, the
alien.
was
he
probationary
during
because
terminal
a
steps
several
took
Tennessee
University of
his law-
only by virtue
it is
period,
he had
to believe
ter-
led Soni
that his
which
settlement
suit’s
suit
law. Soni
the state
despite
tenure
effect.
not take
did
mination
facto
faculty
permanent
why
for a
the set-
reason
persuasive
recommended
presents
was
deferred
nullify MSU’s
vote was
formal
should
agreement
a
position, but
tlement
universi
citizenship. The
termination.
notification
timely initial
he obtained
until
him from visit
South Car-
Storrer
ty nevertheless
Cf.
profes
343 S.E.2d
olina,
associate
S.C.
professor
ing associate
acquire de
re
(professor
participation
(App.1988)
him
sor and
pro-
automatic
normally re
through
was
program
tirement
”
“
probationary
completion of
personnel.’
type
based
vision
‘permanent
stricted
of his termi-
he was notified
permitted
period
where
at 350.
period
probationary
meetings
nation within
departmental
to attend
Dr. Soni
defects
faculty.
reinstated
on tenure
to vote
beyond
years
two
worked
consequently
col
departmental
Furthermore,
several
Sec-
period).
probationary
maximum
he became
that once
Soni
assured
leagues
that neither
significant
ond,
it is
we think
ten
formal
naturalized,
receive
he would
provide
procedures
nor MSU
Kentucky law
circumstances, of these
ure.
view
university faculty
protected
for automatic tenure to
interests,
create
property
vir
beyond
probationary peri
who work
their
tually any public employee whose non-ten
effect,
Edinger argues
od. In
for such ure contract has been renewed successively
However,
provision.
if automatic tenure
could claim an entitlement to continued em
is not the
of MSU or the law of ployment.
seriously
We
doubt that
Kentucky,
liberty
this court is not at
to Supreme Court intended this
result
its
merely
faculty
confer tenure
because a
holdings
Regents
probation
member fulfilled or exceeded his
U.S.
and Perry v. Sin
Nicks,
ary period.
Ford v.
F.2d
See
dermann,