[00:00:00] Speaker 02:
All right, our third and final case to be heard this morning is Miracle v. Hush, number 253032.

[00:00:07] Speaker 02:
We'll begin with Mr. Carswell.

[00:00:12] Speaker 01:
Thank you.

[00:00:12] Speaker 01:
May it please the court, in 2018, the Kansas Supreme Court held that the Kansas legislature's elimination of tenure for K-12 teachers did not violate due process.

[00:00:21] Speaker 01:
In light of that precedent, the Kansas Board of Regents during the COVID pandemic took similar action

[00:00:26] Speaker 01:
and temporarily suspended tenure protections for public university professors.

[00:00:30] Speaker 01:
But the district court here, despite Scribner and the cases on which it relied, held that not only did plaintiffs allege a due process violation, but that somehow that violation was clearly established.

[00:00:41] Speaker 01:
That decision was wrong and should be reversed with qualified immunity being granted to defendants on counts one through three of plaintiff's complaint, which are all based on the existence of a property interest in continued employment.

[00:00:52] Speaker 01:
Furthermore, qualified immunity should be

[00:00:54] Speaker 01:
to all defendants except Prett and Hush on the remaining plaintiff's claims because plaintiffs' complaint fails to allege defendants' personal participation in those asserted violations.

[00:01:05] Speaker 01:
On the due process claims, the district court attempted to distinguish Scribner on two grounds.

[00:01:10] Speaker 01:
First, the district court said, well, Scribner involved legislative action by the Kansas legislature.

[00:01:15] Speaker 01:
Here, this was the Kansas Board of Regents, which is sort of an executive branch agency, so maybe it's a little different.

[00:01:21] Speaker 01:
But the question under due process is not what branch of government takes the action.

[00:01:26] Speaker 01:
As the U.S.

[00:01:27] Speaker 01:
Supreme Court recognized at night, the executive branch takes action all the time that affects people's due process, or excuse me, property interest rights.

[00:01:34] Speaker 01:
The question is whether the action affects just a few individuals on individual grounds or whether it's a broader application.

[00:01:40] Speaker 01:
And here, the Kansas Board of Regents approval of the Workforce Management Plan affected the property interest of all tenured professors throughout the state university system.

[00:01:50] Speaker 01:
Even if you're just looking at the decision-making framework, that was all faculty at Emporia State University.

[00:01:55] Speaker 01:
And so the Board of Regents was not required to hold individualized hearings in order to adopt these policies.

[00:02:00] Speaker 01:
The policies themselves eliminated whatever property interests plaintiffs might have otherwise had.

[00:02:06] Speaker 01:
And therefore, at the time of their terminations, they no longer had those property interests.

[00:02:10] Speaker 02:
Second, the district court... Mr. Carswell, can I just ask you, though, if the policy, the workplace management policy had

[00:02:20] Speaker 02:
A broad effect, if it affected a lot of.

[00:02:23] Speaker 02:
Tenured faculty members across the system, then why didn't the Board of Regents need to comply with the filing act in taking that action?

[00:02:35] Speaker 01:
Well, I think there are two issues there.

[00:02:37] Speaker 01:
First of all, under Kansas state law, the rules and regulations filing act says it doesn't apply to the internal personnel policies of an agency.

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And so this is involved just for the same reason that plaintiff's tenure policies originally were not adopted as regulations.

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If they weren't adopted as regulations to begin with, it's not clear why the Board of Regents would need to go through the regulatory process to revoke those.

[00:02:59] Speaker 01:
Secondly, even if, assuming there were some violation of Kansas state law, that itself doesn't violate the federal due process.

[00:03:07] Speaker 02:
Well, let me, let me just back up when you reference the internal policy of the agency.

[00:03:14] Speaker 02:
Isn't the agency the Board of Regents?

[00:03:18] Speaker 01:
Kansas law is a little complicated here because the Constitution creates the Board of Regents as the agency that oversees state universities.

[00:03:26] Speaker 01:
And then there are the state universities themselves.

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But I think if I would interpret the rules and regulations filing act, the purpose here is basically internal personnel policies about who cannot be fired.

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And the universities are state agencies.

[00:03:40] Speaker 01:
Those are not subject to the rules and regulations.

[00:03:42] Speaker 02:
So is the Board of Regents.

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I mean, there are employees of the Board of Regents.

[00:03:47] Speaker 02:
And I just think this seems in tension with what you started out with, which was to say, oh, this was a legislative action.

[00:03:54] Speaker 02:
It affected a lot of people.

[00:03:57] Speaker 02:
It doesn't sound like a mere internal personnel decision.

[00:04:01] Speaker 02:
I mean, how do you square those two positions?

[00:04:04] Speaker 01:
Well, it affected temporarily the tenure rights of all statewide university faculty.

[00:04:10] Speaker 02:
That seems like a pretty broad impact.

[00:04:14] Speaker 01:
Precisely, and that's why their individual experience were not required by the policy making process provided.

[00:04:19] Speaker 02:
I'm not sure.

[00:04:20] Speaker 02:
I'm not sure.

[00:04:21] Speaker 02:
I got my question across.

[00:04:22] Speaker 02:
Then I, it seems like there's some tension.

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Between saying, oh, this is a legislative act that affected abroad.

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category of people on the one hand, and then you also say, oh, but they didn't have to comply with the filing act because this just concerned an internal personnel matter.

[00:04:42] Speaker 02:
How do you square those two things?

[00:04:45] Speaker 01:
Well, I mean, it's the same as if an agency might have a lot of employees if a policy applies across the board.

[00:04:50] Speaker 01:
If it's their internal personnel policies, the rules and regulations access, that doesn't apply to them.

[00:04:56] Speaker 02:
What if it was a policy that applied to everybody in state government?

[00:05:01] Speaker 02:
Is that internal?

[00:05:02] Speaker 01:
I mean, if there were some agency that oversaw that, then yes, it could be.

[00:05:07] Speaker 01:
I mean, this is an interpretation of Kansas state law.

[00:05:10] Speaker 01:
Ultimately, I don't even think you need to go there because assuming even Kansas state law somehow was violated, that itself is not a federal constitutional violation.

[00:05:18] Speaker 02:
Well, if it was violated, though, let's assume for the sake of discussion it is.

[00:05:23] Speaker 02:
And I know you don't think it was.

[00:05:25] Speaker 02:
But if it was violated, why wouldn't that invalidate the action?

[00:05:30] Speaker 01:
Well, because that's a state law claim, whereas here they're bringing a federal due process claim.

[00:05:34] Speaker 02:
So the question is... But if the action was invalid, then they'd still have the property interest, the pre-existent property interest.

[00:05:45] Speaker 01:
It's not invalid as a matter of federal law.

[00:05:47] Speaker 02:
I didn't say it was.

[00:05:49] Speaker 02:
Is it invalid as a matter of state law?

[00:05:52] Speaker 01:
No, we don't believe it was.

[00:05:53] Speaker 02:
Why not?

[00:05:55] Speaker 02:
What authority do you have for that?

[00:05:57] Speaker 01:
Well, just the statutory language.

[00:05:59] Speaker 02:
How about the Taylor case?

[00:06:01] Speaker 01:
The Taylor case, that didn't involve internal policies.

[00:06:04] Speaker 01:
That had to do with recipients of government funding, the public, not internal within the agency.

[00:06:09] Speaker 01:
That had to do with members of the public.

[00:06:11] Speaker 02:
So we're back to your internal policy argument.

[00:06:15] Speaker 01:
Precisely.

[00:06:15] Speaker 01:
These are government employees.

[00:06:18] Speaker 01:
Obviously, the Board of Regents and the Emporia State University were one

[00:06:22] Speaker 01:
I don't think there'd be any question.

[00:06:24] Speaker 01:
I mean, the only issue as well, because the Board of Regents oversees Emporia State University, does that somehow make it different?

[00:06:29] Speaker 01:
I don't think it does.

[00:06:30] Speaker 01:
I mean, under the Kansas Constitution, the Board of Regents is responsible for overseeing state universities.

[00:06:35] Speaker 01:
And so under the Rules and Regulations Filing Act, this is still a regulation that affects personnel policies and not the public.

[00:06:44] Speaker 01:
And that addresses the district court's second point, which is the notice.

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for those two reasons that there is no basis for distinguishing script during the cases on which it relies.

[00:06:53] Speaker 01:
Plaintiffs due process right, excuse me, property rights were validly extinguished by the adoption of the workforce management plan and the decision-making framework.

[00:07:01] Speaker 01:
And so at the time of their terminations, they no longer had those property rights.

[00:07:04] Speaker 01:
And so their due process rights were not violated.

[00:07:09] Speaker 01:
On the second issue here, on plaintiffs remaining claims, those all relate to- Well, let me just, before you go there,

[00:07:16] Speaker 02:
I think you started out saying the district court also said something about clearly established law, but did it really address clearly established law?

[00:07:27] Speaker 01:
I mean, the district court said there are precedents for property rights and cited some cases on notice, but no, we don't believe that the district court sufficiently addressed that.

[00:07:35] Speaker 01:
We don't think there is clearly established law, and that's why you should reverse, among other reasons.

[00:07:40] Speaker 03:
But was that a basis for the district court's actions?

[00:07:44] Speaker 01:
That was the question under qualified immunity.

[00:07:47] Speaker 01:
So yes, that was the district court denied qualified immunity by apparently determining that there was clearly established law.

[00:07:56] Speaker 01:
Turning to the second issue, plaintiff's remaining claims all relate to the issue of which plaintiffs or which professors would be terminated and which women are equal protection claims.

[00:08:06] Speaker 01:
We were terminated because other people weren't.

[00:08:08] Speaker 01:
The freedom of association claims or we were terminated because of our associations.

[00:08:12] Speaker 01:
Then they also have a liberty interest claim, which is about what was said about them in the process of their terminations, and then conspiracy claims piggybacking on all that.

[00:08:20] Speaker 01:
The Board of Regents defendants had nothing to do with any of that.

[00:08:23] Speaker 01:
They established the policies, but there's no allegation that they were involved in the decision about who to terminate and who not to terminate or what was said about them in the process.

[00:08:31] Speaker 01:
So they should receive qualified immunity on all these remaining claims.

[00:08:35] Speaker 01:
Defendant Brent Thomas, who is the Dean of the College and the Provost,

[00:08:39] Speaker 01:
The only allegations against him in the complaint are that he attended a meeting on the Workforce Management Plan and testified in front of the Board of Regents about the Workforce Management Plan.

[00:08:49] Speaker 01:
Again, there's no allegation that he was somehow responsible for determining which plaintiffs would be terminated or what was said about them.

[00:08:56] Speaker 01:
So the only remaining defendants then are the attorneys, Kevin Johnston and Stephen Levitt, who all they did, according to the complaint, was serve as legal representatives for Horia State in this employment dispute.

[00:09:08] Speaker 01:
Again, there's no allegation that they had as an attorney's responsibility for determining who would be fired.

[00:09:13] Speaker 01:
And so they should be entitled to qualified immunity on the equal protection and freedom of association claims.

[00:09:22] Speaker 02:
The district court- Well, counsel, didn't they work with President Hush in coming up with the termination letters?

[00:09:32] Speaker 02:
I mean, weren't they actively involved in the steps that led to the terminations?

[00:09:38] Speaker 01:
So two points there.

[00:09:39] Speaker 01:
First of all, talking about equal protection and freedom of association claims.

[00:09:45] Speaker 01:
Yes, you're right.

[00:09:45] Speaker 01:
They were, according to the allegations, involved in writing those letters.

[00:09:49] Speaker 01:
But there's no allegation that they made the decision, rather they were just basically working for the ESU president who made those determinations.

[00:09:56] Speaker 02:
I was intrigued by your argument.

[00:10:01] Speaker 02:
It seemed to me like you were making an argument that because they were functioning as university council,

[00:10:07] Speaker 02:
that that should take them out of the complaint.

[00:10:13] Speaker 02:
Is that the point you're making?

[00:10:18] Speaker 01:
Yes.

[00:10:18] Speaker 01:
There's no certainly no qualified, excuse me, clearly established law establishing that just merely serving- No, let's not get to clearly established.

[00:10:26] Speaker 02:
Let's get to whether they could be maintained as defendants on, let's say, the first part of qualified immunity.

[00:10:36] Speaker 02:
Um, is there something about the fact that they were functioning as lawyers that, that, that, that they should be dismissed?

[00:10:45] Speaker 01:
Yes, because they were not the ones who actually made the decisions that led to plaintiffs being terminated.

[00:10:51] Speaker 01:
They were merely serving as counsel.

[00:10:55] Speaker 02:
Well, I understand the argument.

[00:10:56] Speaker 02:
I didn't see, was there any authority to back up your argument that they, that they should be dismissed?

[00:11:05] Speaker 01:
And we cited some cases.

[00:11:06] Speaker 01:
There's not a lot of authority, just because I think people tend not to sue the attorneys over decisions that the employers make.

[00:11:12] Speaker 01:
But we cited the Yoghurt case from the Seventh Circuit and the Givoy case from the Southern District of New York, where the courts have said just an attorney's legal representation in and of itself does not violate the Constitution.

[00:11:24] Speaker 01:
You need to show something more.

[00:11:25] Speaker 01:
So here they would need to show, or at least allege at this point, we're at the beginning stage, we need to allege that these attorneys were somehow responsible for the decision

[00:11:35] Speaker 01:
termination decisions or playing some role into that, effected that rather than just serving as basically the agents of their employer, you don't hold the, there's no vicarious liability under 1983.

[00:11:45] Speaker 01:
So you don't hold the agents responsible for the actions of their principal.

[00:11:50] Speaker 01:
In regard to the Liberty interest claim, this court has said that's violated by making a statement.

[00:11:55] Speaker 01:
And there's a lot of other problems to that too, but here they were not the ones who actually made the statement.

[00:12:00] Speaker 01:
It was President Hush and

[00:12:03] Speaker 01:
There we do cite the Supreme Court's case just as a rough analogy.

[00:12:07] Speaker 01:
In JNS, where under the securities laws, the US Supreme Court said drafting a statement does not equate to making a statement.

[00:12:15] Speaker 01:
So especially once you get to qualified immunity, at the clearly established prong of that, there's no clearly established law that would have alerted them that just by serving as lawyers, it would be violating the Constitution.

[00:12:27] Speaker 01:
So they should be granted qualified immunity.

[00:12:29] Speaker 03:
Give me that Supreme Court case again you talked about.

[00:12:33] Speaker 01:
That one was Janice.

[00:12:34] Speaker 01:
I didn't write the full name, but it's cited in our brief about making a statement.

[00:12:38] Speaker 03:
Okay, thank you.

[00:12:39] Speaker 01:
Sure.

[00:12:40] Speaker 01:
I'd like to reserve the remaining time for rebuttal.

[00:12:43] Speaker 02:
Thank you, Council.

[00:12:46] Speaker 02:
Thank you.

[00:12:46] Speaker 02:
Mr. Gragson.

[00:12:48] Speaker 00:
Good morning, Your Honors.

[00:12:49] Speaker 00:
Jay Philip Gragson, appearing on behalf of Apple E's, Amanda Miracle, et al.

[00:12:55] Speaker 00:
Your Honors, Council, as a result of a concerted effort by members of the Kansas Board of Regents,

[00:13:03] Speaker 00:
officials at the University of Emporia State and other unknown state actors, our clients, the professors in this case, their tenure rights as a property right were discontinued without appropriate due process in violation of the 14th Amendment.

[00:13:23] Speaker 00:
The professors in this case had a clearly established property right and tenure,

[00:13:28] Speaker 00:
and should have been granted a notice sufficient to tell them why they were being terminated and a meaningful opportunity to be heard.

[00:13:38] Speaker 00:
In the course of infringing upon our client's property right, the defendants also infringed upon their liberty interests in their good name and ability to earn a living in the manner in which they terminated them.

[00:13:53] Speaker 00:
Now, this constitutional violation

[00:13:58] Speaker 00:
occurred over three steps.

[00:14:00] Speaker 00:
And the first step was the adoption of the workforce management policy by KBOR on January 20th, 2021.

[00:14:07] Speaker 00:
The second step was the approval of ESU's framework by KBOR in September of 2022.

[00:14:15] Speaker 00:
The third and final step in this process was the termination of the professors the very next day that

[00:14:25] Speaker 00:
after KBOR had approved ESU's framework.

[00:14:30] Speaker 00:
Now, as of January 20, 2021, the day that KBOR passed the WPM, it was clearly established law that our clients had a property right in tenure.

[00:14:44] Speaker 00:
The case law is clear.

[00:14:45] Speaker 00:
We've cited Tonkovich and several other Supreme Court cases for that proposition.

[00:14:52] Speaker 00:
Now, the term of tenure

[00:14:56] Speaker 00:
that each of the ESU professors had earned indicated they had a expectation of continued employment except or just cause or in the case of a bona fide financial exigency.

[00:15:13] Speaker 00:
Also as of January 20th tenure as a clearly established property right, they were entitled to appropriate substantive and procedural due process.

[00:15:23] Speaker 00:
At a minimum, the clearly established law required a pre-termination notice of the reasons for termination and an opportunity to be heard, as well as post-termination due process.

[00:15:39] Speaker 00:
Now, on January 20th, when KBOR approved the workforce management policy,

[00:15:47] Speaker 00:
It's important to note that they had an agenda.

[00:15:50] Speaker 00:
We don't know when they posted it, but if they posted it at all, there is absolutely nothing on that agenda telling anybody that they were even considering suspending tenure.

[00:16:02] Speaker 00:
So there was no formal notice or any kind of opportunity to be heard prior to K-BORG passing that policy.

[00:16:13] Speaker 00:
Now, when they passed that policy,

[00:16:15] Speaker 00:
It provided a couple of hates.

[00:16:17] Speaker 00:
Number one, it said essentially that tenured faculty members could be suspended, dismissed, or terminated irrespective of any other policy.

[00:16:28] Speaker 00:
It also provided a, quote, appeal process to the Kansas Office of Administrative Hearings.

[00:16:35] Speaker 00:
However, it established the burden on the employee that, hey, we have the burden of showing why we shouldn't have got fired.

[00:16:43] Speaker 00:
without any discovery, without the ability to call witnesses, or to cross-examine witnesses.

[00:16:50] Speaker 00:
But here's a significant point that it provided for.

[00:16:55] Speaker 00:
Unlike the legislature and Scribner, what Kabor said was, here's our policy.

[00:17:01] Speaker 00:
The state is arguing, therefore, it applied to everybody.

[00:17:05] Speaker 00:
Well, actually, they had a proviso that said, nobody can take any action under this policy

[00:17:12] Speaker 00:
until they come to KBOR and we give you authority to do that.

[00:17:17] Speaker 00:
So it wasn't self-executing.

[00:17:19] Speaker 00:
It wasn't like anything having to do with Scrivener where the legislature said, hey, we're doing away with due process hearings if you happen to get fired and you work as a teacher in K through 12.

[00:17:33] Speaker 00:
Here, KBOR said, you institutions, if you're gonna use this, you have to come back to us and we'll approve it.

[00:17:41] Speaker 00:
which ultimately is step two in this process.

[00:17:45] Speaker 00:
Now, on September 14th, 2022, ESU went to the KBOR meeting through President Hush and Mr. Thomas, and they presented their workforce policy.

[00:18:04] Speaker 00:
Now, in substance, that policy was very,

[00:18:09] Speaker 00:
almost verbatim as to what the KBOR workforce management policy was.

[00:18:15] Speaker 00:
Now, it's interesting to hear the arguments of the broad application of this policy, because here's the reality.

[00:18:25] Speaker 00:
At that hearing, President Hush said that this policy would only impact about 7% of their employees.

[00:18:36] Speaker 00:
He also said, despite the

[00:18:39] Speaker 00:
the discussion about all the financial issues.

[00:18:42] Speaker 00:
He also said, made it clear it's in the policy.

[00:18:45] Speaker 00:
This is no financial exigency.

[00:18:49] Speaker 00:
Nevertheless, KBOR approved that policy knowing it applied to a very limited number of people.

[00:18:57] Speaker 00:
And what also KBOR did when they approved the framework, if you read the framework, KBOR is authorizing ESU

[00:19:08] Speaker 00:
to only be able to fire for the reasons outlined in the framework.

[00:19:15] Speaker 00:
The legislature in Scribner, this is way beyond anything the legislature did.

[00:19:23] Speaker 00:
This is adjudicative in nature.

[00:19:25] Speaker 00:
It says, here's the criteria.

[00:19:27] Speaker 00:
If you're going to implement it and go terminate folks, here's how you're going to do it.

[00:19:33] Speaker 00:
So to get back to Scribner and further delineations,

[00:19:38] Speaker 00:
It's important to note that the, quote, terms of tenure, if you will, in Scrivener included, as the court noted, KSA 75-2259, which provided nothing in this act shall be construed to create any right or to authorize the creation of any right which is not subject to amendment or nullification by act of the legislature.

[00:20:07] Speaker 00:
I'm calling that a term of tenure under the K through 12th due process scheme.

[00:20:13] Speaker 00:
Now, there's nothing similar that the defendants can point to that is in the tenure policy of ESU or KBOR.

[00:20:24] Speaker 00:
In other words, we didn't have, our professors didn't have this term that they could take it away willy-nilly whenever they wanted to.

[00:20:32] Speaker 00:
That is a significant distinguishing term

[00:20:37] Speaker 00:
makes Scrivener have no application whatsoever to this case.

[00:20:43] Speaker 00:
Now, again, even if the court were to undertake the Scrivener analysis, at the end of the day, this policy only impacted 30 professors, not the 30 some odd thousand K through 12 teachers that there were in Kansas, 30 professors.

[00:21:05] Speaker 00:
understand that that suspension of tenure policy had a sunset clause.

[00:21:11] Speaker 00:
It's gone.

[00:21:12] Speaker 00:
And so when they say it applied to everybody, well, everybody but the 30 professors who were fired still have tenure because that's the policy that's applicable after December of 2022.

[00:21:26] Speaker 00:
Unlike, again, what the Kansas legislature did in Scrivener.

[00:21:31] Speaker 00:
For everybody who was a teacher,

[00:21:34] Speaker 00:
If you get fired moving forward, you are not going to have a due process hearing.

[00:21:39] Speaker 00:
And the legislature was done.

[00:21:41] Speaker 00:
Now, we believe that we've established and alleged clearly established property rights and tenure and liberty interest.

[00:21:56] Speaker 00:
We've also established that there was no process prior to the removal of their

[00:22:02] Speaker 00:
property right claim and tenure.

[00:22:05] Speaker 00:
None.

[00:22:07] Speaker 00:
There was none at the stage at which KBOR passed its initial policy.

[00:22:11] Speaker 00:
There was no opportunity to be heard when KBOR approved the framework submitted by ESU.

[00:22:21] Speaker 00:
And the hearing, well, let me strike that first of all, they got no pre-termination notice whatsoever.

[00:22:30] Speaker 03:
And I take it.

[00:22:31] Speaker 03:
their termination did not, there's nothing that accompanied that that said here individually for each of you is the reasons you're being terminated because of inadequate performance or something like that.

[00:22:46] Speaker 00:
Yeah.

[00:22:48] Speaker 00:
Good question, Judge.

[00:22:49] Speaker 00:
Here's what they did.

[00:22:50] Speaker 00:
They had nine sort of criteria as reasons that

[00:22:57] Speaker 00:
anyone, the tenure professor could be terminated under the policy.

[00:23:01] Speaker 03:
Those covered the waterfront, pretty much.

[00:23:03] Speaker 00:
Right.

[00:23:05] Speaker 00:
But they were all generic, right?

[00:23:07] Speaker 00:
But when it got time to give the letters to the individual professors, it didn't specify, for example, okay, under performance, here's what you did.

[00:23:18] Speaker 00:
It just said, hey, it could be one of these nine things.

[00:23:22] Speaker 00:
And let's go to hearing.

[00:23:24] Speaker 00:
You don't get to ask us which one it is.

[00:23:27] Speaker 00:
don't get us to ask us documents whether it supports this notion that this was financially motivated.

[00:23:33] Speaker 00:
You don't get to call witnesses.

[00:23:36] Speaker 00:
You don't get to cross-examine.

[00:23:38] Speaker 00:
I'm sorry.

[00:23:39] Speaker 03:
You don't get, I mean, I take it the hearing that wouldn't have provided for calling witnesses like that, but you said just now that you wouldn't get to ask which clause and what

[00:23:51] Speaker 03:
what deficiency is being alleged.

[00:23:54] Speaker 03:
Why do you think that that would not have been, if they had tried to ask that question, it wouldn't have been accepted and responded to?

[00:24:00] Speaker 00:
There was no mechanism for calling witnesses at the hearing.

[00:24:04] Speaker 03:
No, I'm not talking about calling witnesses.

[00:24:06] Speaker 03:
What if they were just asking the question of the board?

[00:24:09] Speaker 03:
Tell us of these wide-ranging possibilities, which one we were deficient in and why?

[00:24:17] Speaker 03:
Couldn't they have asked that question?

[00:24:19] Speaker 03:
Well,

[00:24:20] Speaker 00:
In theory, I suppose, but let's put it in context, Your Honor.

[00:24:23] Speaker 00:
If you're talking about the point at which Kabor was approving the framework, there was no invitation to anybody to come in and ask questions.

[00:24:34] Speaker 03:
I understand that.

[00:24:36] Speaker 03:
There was no process involved there, as I understand it.

[00:24:39] Speaker 03:
But when the framework was being implemented against these professors,

[00:24:46] Speaker 03:
Wasn't there an opportunity for them to say, tell us, I know the notice of termination was very broad.

[00:24:53] Speaker 03:
We just want you to be more specific.

[00:24:55] Speaker 03:
Couldn't they have, wasn't there a chance in a hearing to ask for clarification of what, why they were being fired?

[00:25:02] Speaker 00:
No, Your Honor, no.

[00:25:05] Speaker 00:
KBOR authorized the framework September 14th.

[00:25:11] Speaker 00:
The next day, September 15th,

[00:25:14] Speaker 00:
Our clients were called to an off-campus location, handed their termination letters, and said, this is what the process is you're getting.

[00:25:22] Speaker 00:
You have to do this appeal.

[00:25:24] Speaker 00:
You responded.

[00:25:25] Speaker 00:
When you go to the hearing, all you can do is give oral argument.

[00:25:29] Speaker 00:
That's what they were presented with.

[00:25:31] Speaker 00:
That's the extent of it.

[00:25:35] Speaker 03:
Oh.

[00:25:35] Speaker 03:
OK.

[00:25:35] Speaker 03:
And you're saying that they could not there

[00:25:38] Speaker 03:
I think it's clear they couldn't have called witnesses or presented evidence, and that may be all the further we need to go.

[00:25:45] Speaker 03:
That may be itself enough of a problem.

[00:25:47] Speaker 03:
But you're saying that they didn't even have the opportunity to say, clarify and be more specific about why each one of us is individually being fired.

[00:25:58] Speaker 03:
That question could not have been asked.

[00:26:00] Speaker 00:
Your honor, I don't know that it's specifically in the record, but I do know that at the hearing... I only want to know what's in the record.

[00:26:07] Speaker 00:
Okay.

[00:26:08] Speaker 00:
The answer is no, your honor.

[00:26:11] Speaker 00:
They were not afforded an opportunity to be able to ask those questions.

[00:26:14] Speaker 03:
Well, they weren't afforded or the record doesn't say whether they could have done it or not.

[00:26:20] Speaker 00:
Well, your honor, I understand that at the hearing, they tried to ask questions, but that was just to the council that was arguing

[00:26:29] Speaker 00:
for ESU.

[00:26:30] Speaker 00:
There was no sworn witness.

[00:26:32] Speaker 00:
It wasn't an evidentiary thing.

[00:26:34] Speaker 00:
And at that point, that's a post-termination hearing without any discovery at all.

[00:26:40] Speaker 00:
Keep in mind that these professors had tenure rights before all this process happened.

[00:26:47] Speaker 00:
And as we sit here today, they still don't know why they were fired.

[00:26:53] Speaker 00:
they still don't know why they were fired.

[00:26:56] Speaker 00:
And the response that have been made.

[00:26:58] Speaker 03:
I think that's as far as it apparently isn't going to be useful to pursue it any further.

[00:27:02] Speaker 03:
I'll figure it out in looking further through the record.

[00:27:05] Speaker 03:
Thank you.

[00:27:06] Speaker 02:
OK.

[00:27:07] Speaker 02:
Thank you, Robert.

[00:27:07] Speaker 02:
Can I just ask you if we disagree with you on the Scribner argument and think that this was more legislative than administrative in adopting the work

[00:27:21] Speaker 02:
workforce management policy.

[00:27:25] Speaker 02:
Is that where your argument about the filing act comes in?

[00:27:29] Speaker 02:
That is, I didn't hear you say anything about that this morning, but your brief argues that the CABOR didn't follow the filing act.

[00:27:44] Speaker 02:
And for that reason, the workforce management policy

[00:27:51] Speaker 02:
even if it were legislative, did not eliminate your client's property interest.

[00:27:59] Speaker 02:
Am I understanding your argument correctly or not?

[00:28:04] Speaker 00:
Yes, Your Honor.

[00:28:06] Speaker 00:
And in part, the regulatory part of our argument was in response to the position that KBOR were taking.

[00:28:17] Speaker 00:
We don't think it was legislative at all.

[00:28:19] Speaker 00:
as I delineated the differences.

[00:28:22] Speaker 00:
And to the extent they're claiming, oh, well, it had broad application.

[00:28:27] Speaker 00:
And then they turn around and say, well, no, it's really just a personnel.

[00:28:31] Speaker 00:
We're saying, well, no, if you're saying it is a broad application, then it did need to be submitted through the filing act.

[00:28:37] Speaker 00:
So yes, Your Honor, if the court decides we think this is more legislative, then we agree that the court

[00:28:47] Speaker 00:
in Scrivener walks through the due process that was sort of built into the legislative process.

[00:28:53] Speaker 00:
We didn't even get that here.

[00:28:56] Speaker 00:
We did not even get that here.

[00:28:59] Speaker 00:
State cannot pass laws that violates constitution.

[00:29:03] Speaker 00:
I see my time's out.

[00:29:05] Speaker 00:
Absent any other questions, we request that the appeal be denied and the matter remanded for further proceedings.

[00:29:11] Speaker 00:
But thank you for your time.

[00:29:13] Speaker 02:
Thank you, counsel.

[00:29:14] Speaker 02:
Mr. Carswell, we're bottled.

[00:29:16] Speaker 01:
Just a few quick points.

[00:29:18] Speaker 01:
First of all, in terms of the number of people who were affected, I claim that this was limited.

[00:29:22] Speaker 01:
Again, the workforce management plan affected every state faculty member with tenure, and the decision-making framework, every ESU professor.

[00:29:30] Speaker 01:
The fact that only a certain number were ultimately fired doesn't change that analysis.

[00:29:34] Speaker 01:
But even if you're looking at the 30 year, I think it was 33 actually, there were professors who were fired.

[00:29:39] Speaker 01:
If you look at the Seventh Circuit's decision in the Dibble case that we cited in our brief, that only affected a total of 29

[00:29:45] Speaker 01:
Those were arbiters, and only nine of those ultimately lost their jobs.

[00:29:49] Speaker 01:
And yet the Seventh Circuit said, this is still a broad class of people, not a small number who are entitled to individualized hearings.

[00:29:55] Speaker 01:
So this is legislative under a well-established precedent.

[00:29:59] Speaker 01:
Certainly no clearly established law saying the otherwise.

[00:30:02] Speaker 01:
In terms of it being temporary, we cited a case from the Fifth Circuit, McVirtue v. Holliday, where that was a temporary suspension of, those were merit service protection pipe similar issue.

[00:30:14] Speaker 01:
And the Fifth Circuit said that that's still valid under due process.

[00:30:18] Speaker 01:
And in fact, that case was cited by the Kansas Supreme Court and Scribner's.

[00:30:22] Speaker 01:
That's part of this well-established precedent that this legislative process are, that when a number of people are affected like this, that was the entire department of the state government, that the process, the policymaking process provides all the process that's due.

[00:30:37] Speaker 01:
In terms of Judge Ebel's question, he was getting quite a bit into the

[00:30:40] Speaker 01:
the particular procedures for the OAH hearings.

[00:30:43] Speaker 01:
So the due process has obviously two components.

[00:30:45] Speaker 01:
One, you have a property right, and then two, what protections or what procedures are required.

[00:30:50] Speaker 01:
Here the argument below is focused exclusively on the first part, that they don't have a property right.

[00:30:54] Speaker 01:
The workforce management plan and the decision-making framework eliminated that property right.

[00:30:58] Speaker 01:
So there was no briefing on whether the procedures, the OAH hearings were sufficient under due process, because by that time they didn't have a property right by the time of their terminations.

[00:31:08] Speaker 01:
And so there was no due process violation.

[00:31:11] Speaker 01:
Unless there are any further questions, we urge you to reverse the district court.

[00:31:15] Speaker 02:
Counsel, what is the status of the plaintiffs' challenges in the Kansas state courts?

[00:31:24] Speaker 02:
Are there still pending matters?

[00:31:26] Speaker 01:
So ESU, the OEH hearings, the Office of Administrative Hearings, cases that it lost, it appealed those up to the district court, and now they're before the Kansas Court of Appeals.

[00:31:34] Speaker 01:
That's been briefed.

[00:31:36] Speaker 01:
They've said they're going to have an argument.

[00:31:37] Speaker 01:
Argument has not been said here.

[00:31:43] Speaker 01:
Is there any further questions?

[00:31:44] Speaker 02:
You're not arguing that the federal court should hold off in light of the pending state proceedings?

[00:31:54] Speaker 01:
That was an argument made in the district court.

[00:31:56] Speaker 01:
We're not arguing that now in part because those cases are entirely to do with whether ESU complied with the decision-making framework.

[00:32:03] Speaker 01:
They don't raise federal due process claims.

[00:32:06] Speaker 01:
Those aren't an issue there.

[00:32:08] Speaker 03:
Could they raise due process claims in the state proceeding?

[00:32:13] Speaker 01:
They could not have before the office of administrative hearings.

[00:32:19] Speaker 01:
Once they took it up to the state district court, I think they potentially could have.

[00:32:32] Speaker 03:
Thank you.

[00:32:33] Speaker 02:
Sure.

[00:32:35] Speaker 01:
Is there anything else?

[00:32:36] Speaker 01:
Thank you.

[00:32:38] Speaker 02:
Thank you, counsel.

[00:32:39] Speaker 02:
Thanks to both of you for the arguments this morning.

[00:32:43] Speaker 02:
And thank you for doing a Zoom argument.

[00:32:47] Speaker 02:
I know that wasn't what you were expecting, but neither were we.

[00:32:50] Speaker 02:
But we will consider the case submitted and counselor excused.

[00:32:57] Speaker 02:
And this court will stand in recess until tomorrow morning, I believe at nine o'clock.

[00:33:03] Speaker 00:
Thank you.