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Friday, November 10, 2017

2d Circuit Dismisses SUNY-Buffalo LRW Prof's Wrongful Termination Claim; Former Dean Claims 'Unequivocal Vindication' And Blames 'Small Cabal Of Racist Law Faculty Who Had Trouble Accepting A Black Man Running The Law School'

Mutua 2Buffalo News, Federal Case That Roiled UB Law School Now Over:

An eight-year legal battle that helped expose deep strife within the University at Buffalo Law School is finally over.

The U.S. Court of Appeals for the Second Circuit affirmed a federal district court decision in favor of Makau W. Mutua, the law school's former dean [Malkan v. Mutua, Nos. 17-38, 17-228 (2d Cir. Oct. 30, 2017)]. The ruling marks the end of the legal process for a former professor, Jeffrey Malkan, who sued Mutua and the university claiming he was wrongfully terminated. ...

Mutua resigned as dean in 2014 amid criticism of his management and remains on the UB Law School faculty. He described the court's decision as a "total, unequivocal vindication. I had no doubt that Jeff Malkan’s claims against me and UB were malicious, unfounded and frivolous. He lost in every single forum where he sued — PERB, state courts, U.S. District Court for the Western District of New York, and now finally in the U.S. Court of Appeals for the Second Circuit," Mutua said in an email to The News.

Malkan, 63, had taught legal research and writing since 2000 at UB. He claimed Mutua wrongfully terminated him in 2008 and then lied twice under oath about it.

The case laid bare a rift at the law school between several highly regarded senior faculty members and Mutua, a world renowned human rights activist. The turmoil occurred as the school was suffering through steep enrollment declines. Faculty produced a scathing evaluation of Mutua's leadership and nearly took a vote of no-confidence in him. In addition, nine senior law professors went on record in court papers supporting Malkan's account of a tenure and promotion vote that was the crux of the professor's lawsuit. ...

In an email this week, Mutua suggested that race played a factor in the allegations against him. Mutua was born in Kenya and is black. He blamed a "small cabal of racist law faculty who had trouble accepting that a competent, reform-minded and independent black man was running the Law School" for taking up what he termed Malkan's "groundless cause." ...

Malkan said he spent $130,000 pressing his case in court. He also said the university blackballed him from finding employment at other schools by refusing to let potential employers know that he had left UB in good standing. During the lengthy legal battle, Malkan frequently railed against Mutua and the university in emails to his former colleagues at the Law School. His references to mass shooting in three emails in 2015 prompted university officials to ban Malkan from campus – a move some professors considered outrageous and overreactive.

Prior TaxProf Blog coverage:

http://taxprof.typepad.com/taxprof_blog/2017/11/2d-circuit-dismisses-suny-buffalo-lrw-profs-wrongful-termination-claim-former-dean-claims-unequivoca.html

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Comments

2d Cir. = raciss

Posted by: Anon | Nov 10, 2017 4:04:33 PM

With comments like that, it's not surprising he was sued

Posted by: mike livingston | Nov 11, 2017 5:19:37 AM

What a mess! the case is interesting because renewal of the 3-year contract of a clinical professor was ruled not to be a "protected property interest". At my Indiana University, we have large numbers of non-tenure-track faculty like this, and tho their contracts are formally for a term of years, in practice they are treated as automatically renewed after they've gone through a promotion process. But maybe they have no legal right, and can be nonrenewed if they argue with the dean.
Also interesting is the Rule 11 motion and countermotion. My impression is that Dean Matua lied, but about something immaterial to the suit's outcome, so Mr. Malkan was indeed wrong to make his Rule 11 motion. Also, it seems Malkan got the legal standard wrong for whether Matua's lawyer was liable, despite that lawyer warning him.

Posted by: Eric Rasmusen | Nov 13, 2017 1:21:20 PM

I have to clarify, Eric.

The Rule 11 motion. (1) The AG moved for summary judgment on a qualified immunity defense. In his Rule 56.1 Statement, he maintained that the question of whether I had obtained my promotion by fraud (because the P&T Committee had voted to terminate my employment) was a disputed issue of fact. In fact, it was undisputed that I had been validly promoted. Eleven tenured professors testified so, and no one could corroborate Mutua. It would have been malpractice for my lawyer to have let the motion go forward without proving that Mutua was lying about my faculty appointment. (2) Mutua, as dean of the law school, had told the same lie in state court. He was attempting to obstruct justice yet again. This was a due process case. His repetition of the same tactic was proof that he was determined never to allow me to receive due process, anywhere.

The SUNY Trustees' Policies. This case was based on a question of statutory construction. The AG was relying on the following provision to argue that I had no property interest in state employment: "No term appointment, of itself, shall be deemed to create any right, interest, or expectancy in any other appointment or renewal." The issue before the Court was how the "of itself" clause modified the rest of this sentence. My evidence that the University has *always* interpreted this provision to allow presumptively renewable contracts was (a) the Faculty Bylaws, (b) my contract and the contracts of every other clinical professor, and, most importantly, (c) the Law School's certifications to the ABA over the past four accreditation cycles (1995, 2002, 2007, and 2016) that it is in compliance with Standard 405(c). I argued to the Second Circuit that the Law School cannot be allowed to have one position for the ABA and another position for the federal courts.

In other words, the Law School was defending itself by claiming that it was legally impossible for it to maintain its accreditation. That was ridiculous.

I also thought a first year legal writing class would understand that the "of itself" clause in the "renewal of term" provision. This is how the Second Circuit quoted the regulatory language in its decision:

SUNY regulations cap term appointments at three years and do not “create any manner of legal right, interest or expectancy in any other appointment or renewal.” 8 N.Y.C.R.R. § 335.13. None of what Malkan cites—UB School of Law’s by-laws, customs, accreditation reports, the American Bar Association’s standards, and his contract—overrides that regulatory term.

The Second Circuit edited the “of itself” clause out of its quotation of the key sentence. That was my whole case. It also imposed sanctions on me and my attorney for putting my evidence of Mutua’s perjury in front of the Court in the form of a Rule 11 motion. This result, after eight years of litigation, could not be more disappointing and chilling. I believe that I was the victim of a crime. How could my attempt to report the crime be construed as harassing the criminal?

Posted by: JSM | Nov 21, 2017 12:10:36 PM

I have to clarify, Eric.
I. The perjury and obstruction of justice.
The perjury and obstruction of justice that I alleged against Mutua consisted of the following:
(1) Mutua testified on direct examination that the faculty had not voted on my promotion and tenure. He claimed, instead, that it had approved a recommendation that his predecessor dean (Nils Olsen) terminate my employment on one year’s notice. He testified that Olsen had defied the faculty and processed my promotion anyway. No one knew what I was “still doing in the building” after my terminal year purportedly expired. He concluded that, therefore, I did not have a legitimate faculty appointment. That gave him a legitimate business reason for refusing to renew my contract. It also voided out my right to due process because I had already received all the process I was due. He repeated this testimony twice in state court (the Public Employment Relations Board) and twice in federal court (at a deposition and in a declaration in support of his summary judgment motion).
(2) Mutua also failed to produce my P&T dossier from the Dean’s Office personnel file (which I had subpoenaed), stating that it had “disappeared into thin air” (that is, had been destroyed) and insinuating that his predecessor in the Dean’s Office (Olsen again) must have destroyed the evidence of his attempt to subvert the faculty with clinical “imposters.” He kept calling me an imposter throughout the case.
This brings me to the two holdings of the Second Circuit ruling.
II. The SUNY Trustees' Policies.
This substantive issue in the appeal was a question of statutory construction. The Attorney General was relying on the following provision to argue that I had no property interest in state employment:
"No term appointment, of itself, shall be deemed to create any right, interest, or expectancy in any other appointment or renewal."
The issue before the Court was how the "of itself" clause modified the rest of this sentence. My evidence showed that the University has *always* interpreted this provision to allow presumptively renewable contracts for clinical professors. This evidence consisted of (a) the Faculty Bylaws, (b) the Clinical Faculty Appointments Policy, (c) my contract and the contracts of every other clinical professor, (d) the records of the renewal process of the other two clinical professors whose contracts were slated to expire on exactly the same day as mine, and, most importantly, (e) the Law School's certifications to the ABA over the past four accreditation cycles (1995, 2002, 2007, and 2016) that it is in compliance with Standard 405(c).
I argued to the Second Circuit that the Law School cannot be allowed to maintain one interpretation of the SUNY Trustees’ Policies for the ABA for the purpose of sabbatical site visits and the opposite position to the federal courts for the purpose of winning a lawsuit. The Law School, in other words, was defending itself by claiming that it was legally impossible for it to maintain its ABA accreditation. That was ridiculous and I did not believe it was even a serious argument. No law school has ever defended a lawsuit with the argument that it has been holding on to its accreditation by perpetrating a fraud on its accrediting agency.
I thought I had an easy winner, but this is how the Second Circuit quoted the regulatory language that was the subject of the appeal:
“SUNY regulations cap term appointments at three years and do not “create any manner of legal right, interest or expectancy in any other appointment or renewal.” 8 N.Y.C.R.R. § 335.13. None of what Malkan cites—UB School of Law’s by-laws, customs, accreditation reports, the American Bar Association’s standards, and his contract—overrides that regulatory term.”
That was disastrous for me. The Second Circuit inexplicably edited the “of itself” clause out of its quotation of the key sentence. It nullified my whole argument. It is the worst kind of judicial cheating and the kind of thing that any lawyer dreads seeing.
I believe any first year law student would have understood that the “of itself” clause meant that the “renewal of term” provision was a conditional, not an unconditional, prohibition on expectations of renewal. A letter of appointment from the President of the University to a three year term of employment does not “of itself” create an *implied* expectation of any renewal term. There is nothing, however, in the “renewal of term” provision that prohibits the Law School from providing *express* expectations of renewal in the form of individual, 405(c)-compliant contracts and due process rules of general application.
That, in fact, is how the University has interpreted this provision for the past two decades. What the Attorney General did was simply to make up a fictitious interpretation for one time use in this case. I don’t know how that could have worked. But now I do know now how difficult it is to take a faculty employment issue out of the law school and get a sympathetic hearing in front of a panel of judges. If the University is willing to spend hundreds of thousands of dollars and use fifteen lawyers from four state agencies, as well as a private law firm, to fight a faculty member in the courts, how is any professor going to stay the course? The only reason I could do so is that I had four union lawyers fighting for me, hired my own lawyer (at a cost of $130,000 out of my savings), and could do countless hours of legal work for myself.
I never got any offer to settle at any time. In fact, Mutua refused to show up at the mandatory federal ADR. I complained the college newspaper that Mutua had cheated me out of my mediation, and the Magistrate responded by holding me in contempt of court. It’s impossible to beat SUNY in Buffalo.
III. The Rule 11 motion.
The Attorney General had moved for summary judgment two grounds. He argued (a) that I did not have a property interest in state employment, and, (b) that Mutua reasonably believed his actions were lawful and therefore he was protected by qualified immunity.
In his Local Rule 56.1 Statement of Undisputed Facts, the Attorney General maintained that whether I had obtained my promotion by fraud was a disputed fact because of the ‘sharp disagreement’ about whether I had obtained a recommendation from the P&T Committee. He refused to concede that my promotion and tenure was undisputed.
In fact, eleven tenured professors testified that the vote count was nine to seven in my favor with three abstentions. Two of these professors, both former Vice-Deans, produced their handwritten contemporaneous notes of the vote count. Mutua could not name a single living professor to corroborate himself.
The evidence of his perjury was unrefuted and likely conclusive. If the AG had proceeded to trial, we would have dealt with the perjury in front of a jury, but he was trying to circumvent the lie by moving to summary judgment on a record tainted by his client’s fraud about a material fact.
That made it necessary to file a Rule 11 motion. In addition to the always-relevant issue of credibility, there were two case-specific reasons for the motion.
First, this was a due process case. Mutua had blocked my right to predeprivation due process in the law school, and then he had blocked my right to postdeprivation due process through a fair hearing in state court. His multiple perjuries were proof that he was determined never to allow me to receive due process, anywhere.
Second, the perjury proved that Mutua was not entitled to qualified immunity,
Conclusion.
The disastrous ruling by the Second Circuit, after eight years of litigation, could not be more disappointing and chilling. I believe that I was the victim of a crime. How could my attempt to report this crime against the judicial process be construed as harassing the criminal?
During the course of this litigation, moreover, Makau Mutua’s invective has been devastating. He called me a failure, an imposter, and a danger to other people in the building who might go “postal” at any time, which the President of the University turned into a major scandal by issuing a persona non gratis letter, banning me from campus. Now he is calling me a bigot whose lawsuit was a “prejudiced vendetta,” and calling his faculty colleagues, who testified truthfully, after they were subpoenaed and under oath, a “cabal of racist law professors” who could not deal with the leadership of a progressive and independent black man. In other words, it was a conspiracy to obstruct justice and frame-up a black man with false testimony and forged documents, hatched by a majority of the senior faculty.
I’m not at SUNY Buffalo anymore, but I wonder how the faculty can move forward in the face of this attack on its cohesion and integrity. I just don’t know, but I’ll admit I am disillusioned with this profession. It turns out that we didn’t need the indeterminacy thesis to explain the politics of law.

Posted by: JSM | Nov 22, 2017 6:08:41 AM

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