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Date: Tue, 8 Dec 2015 13:45:29 -0500

Subject: Re: [LRWPROF-L] Fwd: Federal Magistrate Recommends Dismissal Of Former SUNY-Buffalo Law
Prof's Wrongful Termination Suit Against Former Dean
From: jdmalkan@gmail.com
To: rbrill@kentlaw.iit.edu
CC: LRWPROF-L@iupui.edu
Legal Writing Colleagues,
I think the members of the legal writing community should know that my former attorney and I are filing
objections to the Magistrate's report and recommendations, which will be in the chambers of the
federal district court judge who is presiding over this case by Monday.
The Magistrate ruled that the sworn testimony of eleven law professors, who have filed a petition in the
Grievance Committee of the Eighth Judicial Department for the censure and disbarment of former-Dean
Makau W. Mutua, is not compelling evidence of perjury, but rather a simple difference of opinion.
Together with the majority of the tenured faculty, I have alleged that former-Dean Mutua lied under
oath on five occasions in both federal and state courts with his claim that the P&T Committee, on April
28, 2006, did not take any action on my application for promotion to full clinical professor, but instead
voted to grant me a one-year terminal contract as director of the legal writing program. He asserted,
therefore, that my promotion was "ultra vires," that is, null and void. That was his position on March 31,
2010, the date he first testified, and it was still his position on June 26, 2015, the date he most recently
testified.
Two SUNY Buffalo law professors, both former Vice-Deans, provided this Court with their
contemporaneous handwritten tally sheets of the vote count that proved that I had received a favorable
recommendation from the P&T Committee, which was ultimately implemented by the University
President in the form of my letter of appointment.
The issue on this Rule 11 motion was whether the Attorney General, who is representing former-Dean
Mutua, is required to provide the names of the witnesses he intends to call to corroborate his client's
testimony. He refuses and claims that he is not legally or ethically obliged to do so. He also claims that
the faculty's vote on my promotion and tenure is not material to the issue of whether I had a valid
faculty appointment because (as he conceded) I actually did receive a letter of appointment from the
President.
The Magistrate failed to understand that the issue is whether that letter of appointment was legitimate.
He also failed to recognize that the credibility of a witness who commits perjury must be discounted to
zero and that the perjury of the Dean of the Law School is, in and of itself, an offense that requires the
Court's urgent response.
He reported to the Court that my attempts and those of my former attorney to use Rule 11 to put
former-Dean Mutua's perjury before the Court were violations of Rule 11 and justified his

recommendation of sanctioning my former attorney in the amount of $10,000 and issuing me a citation
for contempt of court.
He further reported that the Policies of the SUNY Board of Trustees do not allow the Law School to
provide presumptively renewable term contracts with due process rights -- that is, 405(c)-protected
status -- to clinical professors. He concluded that I had no federally protected property interest in my
employment and no right to due process. On this basis, he granted the Attorney General's motion for
summary judgment.
He failed, however, to mention that SUNY Buffalo is an ABA-accredited law school, that it has a clinical
faculty and legal writing program, and that it maintains Faculty Bylaws and a Clinical Faculty
Appointments Policy that provide 405(c)-protected status and its requisite procedural protections for
clinical professors. These rules and procedures were presented to the ABA at its most recent site visit in
April of 2009, and the ABA found that SUNY Buffalo is in compliance with Standard 405(c). That is the
status of its accreditation to the present day as it awaits its next site visit in spring of 2016. I am quite
certain that no university has ever attempted to defend a lawsuit by claiming that it lied to its own
accrediting agency.
This attack by the administration of SUNY Buffalo on Standard 405(c) should raise an alarm in both the
clinical and legal writing communities, and I thank Ralph for bringing it to the attention of the listserv.
As for myself, I am not an employment lawyer and I have had to learn about some of the realities of
legal practice in this field by enrolling in the school of hard knocks. This case has also been a practicum
for me in the rules and principles of legal ethics.
It is never easy for a professor to challenge a university decision on promotion and tenure through the
court system because judges presume that university faculties know how to govern themselves. It is
even more difficult, in a region like Buffalo, New York, to challenge a state agency like SUNY, which is a
mainstay of the local economy. The local business and political leaders are predisposed to look away
from a scandal that implicates the integrity of the University's administration.
This is, nevertheless, a crime against the judicial process and the legal profession. I don't believe the
federal district court judge (or, in the last resort, the Court of Appeals for the Second Circuit) will be able
to overlook the compelling evidence that something has gone very wrong at this University.
I also believe that the events behind this case represent a backlash against the legal writing and clinical
communities initiated by former-Dean Mutua and now continued by Interim Dean James A. Gardner.
The attack is still ongoing in the University's unyielding refusal to acknowledge the right of clinical and
legal writing faculty to security of employment and academic freedom. The University and the Attorney
General continue to lie to the Court and obstruct justice.
I do not accept this situation and neither do many of the senior faculty members at SUNY Buffalo who,
unfortunately, know what this administration is capable of doing to dissenters. In fact, many of my
principal witnesses have already given up and accepted early retirement packages from the University.

Others, however, are still in place, doing what they can to support me, and I have no intention of letting
them down.
Sincerely,

Jeffrey
On Tuesday, December 8, 2015, Brill, Ralph <rbrill@kentlaw.iit.edu> wrote:

The saga winds down.


---------- Forwarded message ---------From: Caron, Paul L <Paul.Caron@pepperdine.edu>
Date: Mon, Dec 7, 2015 at 5:20 PM
Subject: Federal Magistrate Recommends Dismissal Of Former SUNY-Buffalo Law Prof's Wrongful
Termination Suit Against Former Dean
To: "Caron, Paul L" <Paul.Caron@pepperdine.edu>
http://goo.gl/q2fcvB
Paul L. Caron
Associate Dean for Research and Faculty Development
Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Highway
Malibu, CA 90263-4181

Phone: 310.506.7521
Email: paul.caron@pepperdine.edu

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