Summary
In Kentucky State University v. Mucker, No. 2018-CA-001817-MR, 2020 WL 1332976, at *9 (Ky. App. Mar. 20, 2020), the Court of Appeals concluded that Kentucky State was entitled to governmental immunity and that Cribbs was entitled to governmental immunity in his official capacity and qualified official immunity in his individual capacity.
Summary of this case from Mucker v. Ky. State Univ.Opinion
NO. 2018-CA-001817-MR
03-20-2020
KENTUCKY STATE UNIVERSITY AND CHRISTOPHER CRIBBS APPELLANTS v. CHARLES MUCKER APPELLEE
BRIEFS FOR APPELLANTS: William E. Johnson Frankfort, Kentucky BRIEF FOR APPELLEE: F. Todd Lewis Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00477 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. ACREE, JUDGE: Appellants, Kentucky State University and Christopher Cribbs, bring this interlocutory appeal to challenge the Franklin Circuit Court's refusal to recognize their right to immunity from the lawsuit brought by the Appellee, Charles Mucker. After careful review, we reverse and remand for further proceedings.
The Court has elected not to publish this opinion. Either party may, by filing a timely petition for rehearing or modification under Kentucky Rules of Civil Procedure (CR) 76.32(1)(a), move the Court of Appeals to publish the opinion notwithstanding the Court's designation, "Not To Be Published." Commonwealth v. Crider and Rogers, Inc., 929 S.W.2d 179, 180 (Ky. 1996). The petition should state the reasons for urging publication.
FACTS AND PROCEDURAL HISTORY
When Mucker enrolled at KSU in the summer of 2014 and took up residence in university housing, he was required to, and did, sign a "Resident Zero Tolerance Acknowledgment." (Record (R.) 137). He accepted the rule of campus housing that his "using and/or trafficking in drugs . . . will result in my immediate eviction and that I will be subject to suspension or dismissal without a right of appeal."
On April 13, 2016, while he was in his dorm room, Mucker was told a campus police officer was parked next to his vehicle. Mucker approached the officer. After a discussion, Mucker consented to the officer's search of his vehicle. The officer recovered marijuana cigarettes, individual bags of marijuana, and a small scale. This was reported to KSU officials.
Christopher Cribbs, KSU's Assistant Vice President for Student Affairs, met with the campus police officer to assess the situation. On Thursday, April 14, 2016, Cribbs decided to suspend Mucker and prepared a letter to him stating, in pertinent part:
You are alleged of [sic] having a bag of marijuana, used marijuana joints, and a scale in your car on campus. After reviewing the available information and due to the nature and circumstances surrounding the event and the subsequent disciplinary proceedings, I have made the following finding related to the violation of the Student handbook for which you were charged:(R. at 9).
• Unlawful use and or possession of illicit drugs (Section 5A p. 17) - Responsible
As a result, . . . [y]ou have been suspended from Kentucky State University, effective April 14, 2016 through June 01, 2016.
You must vacate your . . . residence room by 5 p.m. Sunday, April 17, 2016.
During the period of suspension, you are prohibited [from appearing on campus]. Failure to abide by these restrictions may result in an extended period of suspension, or possibly expulsion. . . .
Upon your June 1, 2016 return to Kentucky State University, you must schedule drug counseling . . . .
Due to your signing the Resident Zero Tolerance form. [sic] You acknowledged that you would be subject to suspension or dismissal without a right of appeal. Henceforth, you will not receive the right to appeal the suspension decision.
The following day, Friday, April 15, Cribbs met with Mucker to discuss the suspension and then met with Mucker's parents and the Chief of the KSU Police Department.
On May 3, 2016, Mucker filed suit against KSU and Cribbs, in his official and individual capacities, seeking damages and injunctive relief. On May 9, 2016, the circuit court denied Mucker's motion for a temporary restraining order to immediately reinstate him. He then amended his complaint to assert state law claims and a claim alleging the defendants violated 42 U.S.C. § 1983. He specifically alleged: (1) a deprivation of his due process and equal protection rights under both the Fourteenth Amendment of the United States Constitution and Sections 1 and 2 of the Kentucky Constitution; (2) illegal civil forfeiture; (3) breach of contract; (4) breach of implied or quasi contract; (5) quantum meruit; and (6) promissory estoppel. He sought both monetary relief and injunctive relief, including reinstatement as a KSU student.
United States Code.
KSU and Cribbs moved for summary judgment on several grounds, but specifically asserted governmental and qualified immunity. Mucker also moved for summary judgment. The circuit court discussed immunity but declined to recognize its application, stating it was unable to "accurately determine if KSU or Cribbs, in his official capacity, are entitled to immunity." Regarding Cribbs' immunity defense in his individual capacity, the circuit court concluded "[a]t this time with the information that the court has been provided, the Court cannot make a determination if Cribbs is entitled to qualified immunity." The circuit court denied both motions for summary judgment. This appeal followed.
STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rowan Cty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006); CR 56.03. "We review a trial court's summary judgment ruling de novo." Peterson v. Foley, 559 S.W.3d 346, 348 (Ky. 2018).
ANALYSIS
As a threshold matter, Mucker asserts this is an interlocutory appeal not ripe for review. Generally, our appellate jurisdiction is restricted to final judgments. CR 54.02. And, "an appeal from the denial of a motion for summary judgment would not be permitted because it is regarded as interlocutory." Steffan v. Smyzer by and through Rankins, 540 S.W.3d 387, 390-91 (Ky. App. 2018). However, in Breathitt County Bd. of Educ. v. Prater, the Kentucky Supreme Court created an exception to this general rule. 292 S.W.3d 883 (Ky. 2009). It held "an order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment." Id. at 887 (emphasis added).
Mucker contends the circuit court did not "deny" KSU and Cribbs immunity. Rather, says Mucker, it denied summary judgment without ruling on the issue of immunity. Therefore, Mucker argues, this appeal falls outside the Prater parameters. We disagree.
When a party moves the circuit court for an order recognizing that party's immunity from suit, any order that addresses the motion without granting the relief sought is a denial. The circuit court's failure to grant KSU's and Cribbs's motions is no less a denial of immunity than if express words were used.
If this were not so, the policy undergirding interlocutory appeals of orders denying immunity would be thwarted. Immediate, interlocutory appeal is necessary because immunity, when it applies, insulates a party "from the burdens of defending the action, not merely" from judgment. Sloas, 201 S.W.3d at 474. This includes the "cost of trial and the burdens of broad-reaching discovery." Lexington-Fayette Urban Cty. Gov't v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004) (citation and internal quotation marks omitted).
In this case, the circuit court concluded a genuine dispute remains regarding at least one fact material to the decisions regarding the appellants' immunity claims. It is this Court's duty to review those conclusions. The Court's jurisdiction to hear this interlocutory appeal has been properly invoked.
This circuit court's factfinding could be clearly erroneous for either of two reasons. First, the circuit court could have concluded a genuine dispute exists, but only regarding a non-material fact or facts. That would require reversal. See Prather v. Immanuel Baptist Church, 296 S.W.2d 224, 225 (Ky. 1956) ("While the pleadings and the affidavits show that an issue of fact exists, if it is not material, and if defendants were entitled to judgment as a matter of law, their motion was properly sustained."). Second, the circuit court could have concluded the plaintiff presented sufficient proof that a material fact is in dispute, when no such proof can be found in the record on appeal. That would require reversal. Neel v. Wagner-Shuck Realty Co., 576 S.W.2d 246, 250 (Ky. App. 1978) (Respondent to summary judgment motion has "duty to tender some proof to the court" that a material fact is in dispute. (citing CR 56.03, 56.05, and 56.06; Conley v. Hall, 395 S.W.2d 575 (Ky. 1965); and Tarter v. Arnold, 343 S.W.2d 377 (Ky. 1960))).
We first consider the circuit court's conclusion that KSU was not entitled to immunity.
Governmental Immunity for KSU
The participants in this case confuse sovereign and governmental immunity. Sovereign immunity, per se, is not an issue in this case.
Sovereign immunity "is an inherent attribute of a sovereign state that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity." Yanero v. Davis, 65 S.W.3d 510, 517 (Ky. 2001). Mucker has not sued the Commonwealth of Kentucky.
Sovereign immunity "also extends to public officials sued in their representative (official) capacities, when the state is the real party against which relief in such cases is sought. . . . [That includes] legislators in the performance of their legislative functions, . . . but not otherwise, . . . [and] judges for all their judicial acts, . . . but not otherwise, . . . and prosecutors with respect to the initiation and pursuit of prosecutions . . . ." Id. at 518 (citations omitted). Mucker has sued none of these officers. Sovereign immunity, per se, does not apply.
The legislature's choice of nomenclature aside, the sovereign's creation of a political subdivision or office results in the created entity's immunity, which the courts denominate variously as governmental immunity or qualified official immunity as discussed in our jurisprudence.
KSU is claiming governmental immunity. "Governmental immunity is granted to agencies that have been established by an immune entity [such as the Commonwealth of Kentucky] and that perform a '"function integral to state government."'" Transit Authority of River City v. Bibelhauser, 432 S.W.3d 171, 173 (Ky. App. 2013) (quoting Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 98 (Ky. 2009) (quoting Ky. Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327, 332 (Ky. 1990))). From this rule of law, we know the material fact questions are limited to determining: (1) whether KSU is a state agency and (2) whether KSU was performing a function integral to state government.
Resolving the first of these is easy. KSU is a state agency. It is listed as a state institution of higher education in KRS 164.290. "For purposes of KRS 49.060, state institutions of higher education under KRS Chapter 164 are agencies of the state." KRS 49.070(1); see also Mendez v. University of Kentucky Bd. of Trustees, 357 S.W.3d 534, 546 (Ky. App. 2011) (state university is "a state agency because it performs the essential state function of educating state citizens and receives money from the state treasury"). And KRS 49.060 speaks directly to the immunity question.
Kentucky Revised Statutes.
The purpose of KRS 49.060 is clear - the statute "expressly preserve[s] the sovereign immunity of the Commonwealth, its cabinets, departments, bureaus, and agencies and its officers, agents, and employees while acting in the scope of their employment in all other situations except where sovereign immunity is specifically and expressly waived as set forth by statute." KRS 49.060. Immunity thus applies to this agency, KSU, but only if it was engaged in an integral state function.
See footnote 4, supra.
The integral state function question is comprised of "two elements: whether the entity's function is governmental as opposed to proprietary, and whether it is a matter of statewide concern." Bryant v. Louisville Metro Hous. Auth., 568 S.W.3d 839, 847 (Ky. 2019) (citations, internal quotation marks, and emphasis omitted). Consider the governmental versus proprietary function first.
"A proprietary function is of the type normally engaged in by businesses or corporations and will likely include an element of conducting an activity for profit." Id. (citations and internal quotation marks omitted). Even if the function performed by the agency "may be one where private businesses may profit, it does not necessarily mean that the agency in question is performing the same task for the purpose of profit." Id.
As the Supreme Court acknowledges, the governmental versus proprietary "distinction is sometimes difficult to draw," but the Court makes clear "that education is an integral aspect of state government and that activities in direct furtherance of education will be deemed governmental rather than proprietary." Prater, 292 S.W.3d at 887. The Court has specifically held that when a university, as an agency of the sovereign, manages student residence halls and dormitories, it is not engaging in a proprietary activity, but a governmental activity that furthers that agency's higher education function. Autry v. W. Ky. Univ., 219 S.W.3d 713, 718 (Ky. 2007).
In connecting the two - education and dormitory management - the Court referred to KRS 164.300, which says, in pertinent part: "The purpose of the state universities and colleges is to give instruction at the college level, in residence and through extension study, . . . and to render such supplemental services as conducting . . . dormitories . . . ." KRS 164.300. Applying that statute, the Court said:
[T]he University, by actually managing the dorms, is performing its required statutory duty. Providing the dorms enables the University to "give instruction at the college level, in residence. . . ." KRS 164.300. Only [the University] can run an official residence hall for the benefit of the students. Other providers of housing do so as a business, for profit; [the University] does so as part of its definitive function. Viewed in this light, [the University] clearly is entitled to governmental immunity.Autry, 219 S.W.3d at 718.
Another university responsibility supplemental to the governmental function of education is student safety and law enforcement. KRS 164.9481; 13 KAR 2:100, § 3; 20 U.S.C.A. § 1092(f)(1)(H). When the university addresses student safety and engages in law enforcement, it "does so as part of its definitive function." Autry, 219 S.W.3d at 718. This Court previously determined, in a different context, that a university is engaged in a governmental function when it undertakes to provide a safe environment for its students. Williamson v. Morehead State University, No. 2015-CA-001767-MR, 2017 WL 465318, at *2 (Ky. App. Feb. 3, 2017), review denied (Ky. Dec. 7, 2017), cert. denied, 138 S. Ct. 1032, 200 L. Ed. 2d 288 (2018) ("MSU was not engaged in a proprietary function; maintaining a classroom environment free from hazardous materials is subsumed within a state university's stated purpose in KRS 164.300."). Our Supreme Court also said the Commonwealth and its agencies engage in an "essential governmental function in providing for the safety and well-being of its citizens . . . ." Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 805 (Ky. 2009). By direct analogy, the same can be said when the university provides for the safety and well-being of its students.
Kentucky Administrative Regulations.
This federal statute requires institutions that participate in federal student loan programs to establish and publish to every student its "policy regarding the possession, use, and sale of illegal drugs and enforcement of Federal and State drug laws . . . ." 20 U.S.C.A. § 1092(f)(1)(H).
We cite this unpublished opinion as persuasive, though not precedent, in accordance with CR 76.28(4)(c).
KSU's governmental function is higher education. The legislature has deemed the supplemental functions of dormitory management, student safety, and campus law enforcement necessary to the university's higher education function, and that makes these undertakings governmental functions as well, and not proprietary functions.
Next, this Court must determine on this record whether the function of the university is a matter of statewide concern. Our caselaw leaves no room for doubt; that question has been answered in the affirmative.
KSU is a state university providing higher education to citizens statewide. Our Supreme Court indicates education is among the "traditional and necessary state function[s]" that are of statewide concern. Coppage Construction Company, Inc. v. Sanitation District No. 1, 459 S.W.3d 855, 864 (Ky. 2015). To be sure, "state level governmental concerns that are common to all of the citizens of this state . . . include . . . public education . . . ." Comair, Inc., 295 S.W.3d at 99. The fact is, "[i]n this state the subject of public education has always been regarded and treated as a matter of state concern." City of Louisville v. Commonwealth, 134 Ky. 488, 121 S.W. 411, 412 (1909) (quoted in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989)).
There is only one conclusion left to draw. KSU is a state agency performing an integral state function and, therefore, is entitled to governmental immunity from Mucker's state claims.
Furthermore, the immunity KSU enjoys is not limited to the state claims. It also applies to Mucker's federal civil rights claim under 42 U.S.C. § 1983. Specifically, he asserts he has a constitutional right to notice and a hearing before he can be suspended from college. But the federal statutory prohibition applies only against "persons" which has been well defined. A state is not a "person" within the meaning of 42 U.S.C. § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65-66, 109 S. Ct. 2304, 2309, 105 L. Ed. 2d 45 (1989). As our own Supreme Court held: "§ 1983 does not override the traditional sovereign immunity of a state and arms of the state as guaranteed by the Eleventh Amendment." Jefferson Cty. Fiscal Court v. Peerce, 132 S.W.3d 824, 835 (Ky. 2004) (emphasis added) (footnote omitted). As an arm of the state, KSU is entitled to Eleventh Amendment immunity from Mucker's claim under 42 U.S.C. § 1983.
No further discovery is necessary to conclude KSU cannot be sued for any tort claim Mucker filed. This Court can conceive of no fact that further discovery could reveal to affect the foregoing analysis. More importantly, subjecting KSU to further discovery destroys the very reason for this immunity - "to free its possessor 'from the burdens of defending the action, not merely . . . from liability.'" Hampton v. Intech Contracting, LLC, 581 S.W.3d 27, 33 (Ky. 2019) (citing Prater, 292 S.W.3d at 886 (quoting Sloas, 201 S.W.3d at 474)).
Upon remand, the circuit court shall enter an order dismissing all Mucker's tort claims against KSU because the agency is immune from these claims. Later in this opinion the Court separately addresses Mucker's breach of contract claim against KSU and whether, by operation of KRS 45A.245, the university waived immunity.
Governmental Immunity for Cribbs in his Official Capacity
"State agency officials or employees, when sued in their official capacity, have the same immunity as their employer." Autry, 219 S.W.3d at 718. Because KSU is entitled to governmental immunity, Cribbs is likewise entitled to governmental immunity in his official capacity for any claims seeking monetary damages.
However, Mucker contends the exception articulated in Ex parte Young allows his claim for prospective injunctive relief to go forward. 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). He notes "[t]he Kentucky Supreme Court has also approvingly recognized the Ex parte Young exception." Hamblen ex rel. Byars v. Kentucky Cabinet for Health & Family Servs., 322 S.W.3d 511, 516 (Ky. App. 2010). We do not find the exception applicable here.
For the exception to apply, "a party must name a state officer and must seek prospective injunctive relief against said officer for compliance with federal law or a federal constitutional provision. The Ex parte Young exception does not permit an action directly against the state or state agency but only against a state officer." Id.
Mucker named the state officer - Cribbs. However, the problem is the prospective injunctive relief he seeks is "reinstatement . . . as a KSU student." (R. at 118). Only KSU can reinstate Mucker. The Ex parte Young exception to Eleventh Amendment immunity only allows "prospective injunctive relief against state officials acting in violation of federal law." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903, 157 L. Ed. 2d 855 (2004) (emphasis added). Mucker seeks prospective relief from a state official who cannot provide it. KSU could provide it but Mucker does not seek it from KSU; even if he had, KSU's immunity extends to Mucker's pursuit of prospective injunctive relief.
Qualified Immunity for Cribbs in his Individual Capacity
Unlike the University, Cribbs is a "person" for purposes of 42 U.S.C. § 1983. Still, "United States Supreme Court precedent in § 1983 cases provides a complete defense for a government official performing discretionary functions so long as his or her actions were reasonably consistent with the rights allegedly violated." Peerce, 132 S.W.3d at 837. However, qualified immunity is lost if an official knew or reasonably should have known that his actions would violate clearly established constitutional rights, or if they were made with malicious intent to deprive a person of their constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S. Ct. 2727, 2737, 73 L. Ed. 2d 396 (1982). This qualified immunity inquiry is identical to the analysis under Kentucky state law. Peerce, 132 S.W.3d at 837.
The circuit court, after determining there was no evidence of malicious intent by Cribbs, focused solely on the issue of whether he knew or should have known that his actions would violate Mucker's rights. The circuit court based its decision on Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975).
Mucker claims the same deprivations of his constitutional rights as addressed in Goss: "a property interest in educational benefits and a liberty interest in [his] reputation[]." (Appellee's brief, p. 17). We shall address them separately.
The Court in Goss corrected a misconception of the appellants in that case regarding the source of property rights entitled to protection. Said the Court:
The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally 'not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as state statutes or rules entitling the citizen to certain benefits.Id. at 572-73, 95 S. Ct. at 735 (citation omitted). The source of the right protected in Goss was statutory. Ohio statutes granted the right to "a free education to all residents between five and 21 years of age, and a compulsory-attendance law requires attendance for a school year of not less than 32 weeks." Id. at 573, 95 S. Ct. at 735. Of course, the Ohio statute cannot be the source of Mucker's property right.
The circuit court did not identify the source of any right worthy of due process protections. Normally, this Court would remand for the circuit court to address the legal issue. Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016) (trial court must rule on contested issue before appellate court can determine if ruling is in error). We need not do so in this instance. Even if the circuit court identified the source of a property right, our legal analysis would be identical to that undertaken regarding Mucker's liberty interests. The test in both is whether Cribbs knew or reasonably should have known that his actions would violate clearly established constitutional rights. This presumes Mucker's constitutional rights - rights to due process - were violated. As discussed below, we conclude Mucker's due process rights were not violated.
Circumstances such as these implicate a person's liberty interests. Goss says, "'Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him,' the minimal requirements of the [Due Process] Clause must be satisfied." Goss, 419 U.S. at 574, 95 S. Ct. at 736 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515 (1971)). Obviously, due process applies here. That is far from the end of the analysis.
"Once it is determined that due process applies, the question remains what process is due." Brock v. Roadway Exp., Inc., 481 U.S. 252, 261, 107 S. Ct. 1740, 1747, 95 L. Ed. 2d 239 (1987) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972)). All courts must be ever mindful "that the interpretation and application of the Due Process Clause are intensely practical matters and that '(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.'" Goss, 419 U.S. at 578, 95 S. Ct. at 738 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961)). When it comes to the due process rights of students disciplined by expulsion or suspension from public institutions of higher learning, there is sufficient jurisprudence to guide the courts. See, generally, 58 A.L.R.2d 903.
The Supreme Court of the United States in Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L.Ed.2d 124 (1978), said:
[S]uspensions of students for disciplinary reasons have a sufficient resemblance to traditional judicial and administrative factfinding to call for a "hearing" before the relevant school authority. . . . [I]n the context of a school disciplinary proceeding, however, the Court [in Goss, supra,] stopped short of requiring a formal hearing
since further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as a part of the teaching process.Id. at 88-89, 98 S. Ct. at 954-55 (citations and internal quotation marks omitted). Returning, then, to Goss, what is required to satisfy due process?
Due process requires, in connection with the expulsion or suspension of a student from public school for disciplinary reasons, "that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Goss, 419 U.S. at 581, 95 S. Ct. at 740. All that Goss requires is an "informal give-and-take" between the student and the administrative body dismissing him that would, at least, give the student "the opportunity to characterize his conduct and put it in what he deems the proper context." Id. at 584, 95 S. Ct. at 741.
We acknowledge that Cribbs' April 14 letter notifying Mucker of the charges against him also appears to represent Cribbs' final decision in the matter. However, Cribbs' requirement that Mucker vacate the dormitory was not effective until four days later. Prior to that, Mucker and both his parents had an opportunity to present his side of the story to Cribbs. This suggests Cribbs' willingness to be persuaded by that presentation and possibly change his decision. We conclude the flexible nature of the due process protections as discussed in Goss applies and that those protections were afforded here. See Flaim v. Medical College of Ohio, 418 F.3d 629, 636-37 n.2 (6th Cir. 2005). This means that Cribbs did not lose his qualified immunity. It is irrelevant whether Cribbs knew that his failure to provide this process of giving Mucker notice and an opportunity to be heard would violate clearly established constitutional rights of due process. Cribbs' actions protected Mucker's rights; they did not violate them. Therefore, Cribbs did not lose his qualified immunity. On remand, the circuit court shall dismiss the claims against Cribbs.
In Flaim, the Sixth Circuit noted that Goss referred to Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961) as a "landmark decision" in this area and adopted its general guidelines, in pertinent part, as follows:
The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion . . . . The nature of the hearing should vary depending upon the circumstances of the particular case. . . . By its nature, a charge of misconduct . . . depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives . . . administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college's educational atmosphere and impractical to carry out. Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college.
Dixon, 294 F.2d at 158-59. Said the Sixth Circuit, "These basic, commonsense requirements, should not require a brain surgeon to understand." Flaim, 418 F.3d at 637 n.2.
Contractual Claims
Mucker's claims for breach of contract, breach of implied contract, quantum meruit, promissory estoppel, and unenforceable forfeiture are premised on the existence of a contract with KSU; therefore, KSU is the only potentially liable party. Mucker cites only the student handbook as evidence of that contract.
Pursuant to KRS 45A.245, "the General Assembly has explicitly waived the defense of governmental immunity for claims based upon lawfully authorized written contracts with the Commonwealth." Furtula v. Univ. of Kentucky, 438 S.W.3d 303, 305 (Ky. 2014) (internal quotation marks and footnote omitted). That is, "KRS 45A.245 is an unqualified waiver of immunity in all cases based on a written contract with the Commonwealth . . . [and] this immunity is not limited to contracts entered into pursuant to the KMPC [Kentucky Model Procurement Code] . . . ." University of Louisville v. Rothstein, 532 S.W.3d 644, 647 (Ky. 2017) (emphasis in original).
We cannot address whether immunity applies here because the circuit court never decided whether a contract existed. Furthermore, to paraphrase a recent immunity case of another sort, "[T]he very same evidence that establishes the eponymous element of a [breach of contract] action simultaneously negates the defense of official immunity. In simpler terms, if a plaintiff can prove [a state contract], the [state agent] has no immunity; if the plaintiff cannot prove [a state contract], the [state agent] needs no immunity." Martin v. O'Daniel, 507 S.W.3d 1, 5 (Ky. 2016).
Martin holds that when proof of immunity and proof of liability are the same, "the issue of qualified official immunity is superfluous. . . . Consequently, when a plaintiff must prove [existence of a contract] to sustain his cause of action, a defense of qualified official immunity has little meaning and no effect." Id. at 5-6. Therefore, to the extent the appellants do argue immunity relative to the contract claims, this Court lacks appellate jurisdiction to entertain it.
CONCLUSION
For the foregoing reasons, we reverse the Franklin Circuit Court's order denying summary judgment, and remand with the direction to determine whether KSU and Cribbs are entitled to immunity.
CLAYTON, CHIEF JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANTS: William E. Johnson
Frankfort, Kentucky BRIEF FOR APPELLEE: F. Todd Lewis
Louisville, Kentucky