The University's Office of the General Counsel filed a motion to dismiss and/or for summary judgment in former College student Richard W. Smith's $1.25 million lawsuit against the University yesterday.
Smith's suit, which was filed July 21, claimed his constitutionally protected due process rights were neglected in proceedings against him.
University President John T. Casteen III suspended Smith for two years for his involvement in the Nov. 21, 1997 assault on then first-year College student Alexander "Sandy" Kory above the Ruffner Footbridge on Newcomb Road.
Assoc. General Counsel Richard C. Kast, who filed the motion, said although the General Counsel's office is confident their claims are valid, it is not unusual for attorneys to file a motion to dismiss.
A motion to dismiss assumes all the facts in the plaintiff's case are true, but its claims are not valid, Assoc. General Counsel Earl Dudley said.
A motion for summary judgment "looks beyond the face of the complaints" and provides reasons why the plaintiff cannot win, Dudley said.
Smith's suit names all Board of Visitors members, Casteen, William W. Harmon, vice president for student affairs, and the seven members of the University Judiciary Committee who tried and expelled Smith Nov. 21.
Smith's attorney, Francis McQ Lawrence, said he has not received a copy of the motion and declined to comment further.
The motion, however, argues specific reasons the claims against each defendant are unfounded.
"President Casteen in his personal capacity is entitled to absolute immunity from plaintiff's damages demands," the motion states.
Absolute immunity is a defense that prevents judges from having to face lawsuits based on their decisions, Law School Prof. Graham Lilly said.
"President Casteen was clearly acting in a judicial, adjudicative capacity when he received, reviewed and acted upon the recommendation of the May 17, 1999 hearing panel and imposed the two-year suspension on plaintiff," the motion states.
A fact-finding panel, composed of members appointed by Harmon, recommended that Smith be suspended for two semesters, but Casteen upped the suspension to two years.
In addition, the motion states the defendants are entitled to "qualified immunity," which is generally available to agents of government institutions that "act in good faith" in complying with the law, Lilly said.
According to the motion, Smith's claims that his due process rights were denied are invalid because violations of UJC procedures do not belong in federal court.
"The fatal fallacy in much of plaintiff's argument is that it seeks to convert alleged violations of UJC procedures, to which he may at most have had a contractual entitlement under state law, into due process deprivations of constitutional dimension," the motion states.
The Office of the General Counsel also submitted individual affidavits from Casteen, Harmon and UJC Chairman Brian Hudak.
The affidavits, sworn testimony given in the presence of a Notary Public, present each defendant's account of his role in the case.
In reference to his authority to decide Smith's sanction, Casteen said in his affidavit, "At no time did the Plaintiff or his student counsel or anyone else on Plaintiff's behalf object to my authority to decide this matter until after my decision was communicated."
Casteen defended his final decision to suspend Smith for two years and said in his affidavit that his decision was based "only on a careful and impartial review of the panel's findings and recommended sanctions, the transcript of the hearing and Plaintiff's written appeal to me. It was my opinion and best judgment to impose the sanctions."
Smith's lawsuit also claims that Casteen, Harmon and the Board members each had a "duty to instruct, train, supervise and control on a continuing basis" the UJC defendants, Casteen and Harmon "to prevent the violations of Mr. Smith's constitutional and statutory rights."
The motion to dismiss cited Cobb v. Rector and Visitors of the University of Virginia, which states that liability under the section of law Smith alleges was violated "cannot attach if a defendant merely failed to act to prevent a constitutional deprivation."
Kast said the Office of the General Counsel is defending the UJC members named in Smith's lawsuit "because they were acting in an official capacity."
The plaintiffs can respond to the motion, after which the judge will schedule a hearing to consider the motion, he said.
During the hearing, both the defendants and the plaintiffs will present their side of the case to the judge, who will decide on the motion, he added.
Kast said if the judge denies the motion, he estimates the trial would be set at a date sometime in the next two to three months, barring additional motions or requests.
If the motion to dismiss and/or for summary judgment is denied, "there is a possibility that [the Office of the General Counsel] would file further motions," including a supplementary summary motion after the discovery phase of the trial, he said.
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