Ballard v. Independent School District, No. 4

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 14 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
DEMPSEY KEACH BALLARD, also
known as Keach Ballard,
Plaintiff-Appellant,
v.
No. 00-7099
INDEPENDENT SCHOOL DISTRICT,
(D.C. No. 98-CV-488-B)
NO. 4 OF BRYAN COUNTY,
(E. Dist. Okla.)
OKLAHOMA, otherwise known as the
Colbert School District; AL WHITE,
individually; W.E. “RUSTY”
BRIGMAN, individually; JARVIS
DOBBS, individually,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, SEYMOUR, and BRORBY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
In light of an unsettled state law question which implicated the outcome of
a civil rights action before us on appeal, we certified the following question to the
Oklahoma Supreme Court:
Whether a teacher’s unexecuted threat to physically assault the
school superintendent and another teacher, made on school premises
but outside the general purview of the students, constitutes “moral
turpitude” justifying his dismissal under O KLA . S TAT . tit. 70, § 6-
101.22.
The Oklahoma Supreme Court has answered this question in the negative.
Ballard v. Indep. Sch. Dist. No. 4 of Bryan County, 2003 OK 76U, 98,954, 2003
WL 22209325 (Okla. Sept. 23, 2003). We therefore reverse the decision of the
district court in the underlying action, and remand for further proceedings.
Demspey Keach Ballard was employed by the Colbert School District from
1984 until his termination in 1998 by the school board for moral turpitude. See
O KLA . S TAT . tit. 70, § 6-101.22 (“[A] career teacher may be dismissed or not
reemployed for . . [a]ny reason involving moral turpitude.”). The grounds for Mr.
Ballard’s dismissal arose out of an argument he had with the school
superintendent and the assistant principal, during which Mr. Ballard threatened he
-2-
would physically assault the superintendent and another teacher. After his
dismissal, Mr. Ballard brought a civil rights action in federal district court in
which he included a state law claim for a de novo hearing on his dismissal
pursuant to O KLA . S TAT . tit. 70, § 6-101.27. 1
The district court affirmed the school board’s conclusion that Mr. Ballard’s
conduct constituted moral turpitude and therefore justified his termination.
Ballard v. Indep. Sch. Dist. No. 4 of Bryan County, No. CIV98-4B8-B, 9 (E.D.
Okla. filed Nov. 18, 1998). On appeal, Mr. Ballard argues that as a matter of law,
the conduct which lead to his termination did not rise to the level of moral
turpitude. The relevant Oklahoma statute does not define the term “moral
turpitude.” Because no Oklahoma court had directly considered whether a
scenario similar to the facts in this case constitutes “moral turpitude,” we certified
the recited question to the Oklahoma Supreme Court.
In answering the question, the Oklahoma Supreme Court noted that the use
of the term “moral turpitude” in various Oklahoma statutes “involves a level of
conduct higher than mere impropriety . . . . The term cannot be used as a catchall
for every kind of conduct that is offensive, inappropriate or unprofessional.”
1
Section 6-101.27, which forms part of Oklahoma’s Teachers Due Process
Act, dictates in part: “A career teacher shall be entitled to a trial de novo in the
district court of the county in which the school district is located.” O KLA . S TAT .
tit. 70, § 6-101.27(A).
-3-
2003 OK 76U, ¶ 9. After examining a variety of cases finding the existence of
moral turpitude, as well as those which did not, the court concluded that “[w]hile
we agree that Ballard’s threats were unprofessional, unwise and unacceptable
behavior, we cannot agree that the threats are on par with the acts construed to
constitute moral turpitude.” Id. at ¶ 17. The court indicated that while an assault
might rise to the level of moral turpitude, Mr. Ballard’s threats were merely
verbal and were never further executed in any manner. Therefore his actions
could not be deemed “moral turpitude” under Oklahoma law. Id. at ¶ 18-19.
The Oklahoma Supreme Court’s response to our certified question makes
clear the district court erred in finding the school board properly concluded Mr.
Ballard’s conduct merited dismissal on the grounds of moral turpitude.
Accordingly, we REVERSE and REMAND for further proceedings.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
-4-