IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 84,338
JOHN W. CONNELLY, PAUL L. WADE, JR.,
MELVIN M. WEDERMYER, and
WILLIAM R. BARRETT,
Plaintiffs/Appellees/Cross-appellants,
v.
STATE OF KANSAS,
KANSAS HIGHWAY PATROL, et al.,
Defendants/Appellants/Cross-appellees.
SYLLABUS BY THE COURT
In this case involving claimed retaliatory discharge by four highway patrol troopers against their supervisors and the State of Kansas for whistleblowing and the violation of their claimed free speech rights under 42 U.S.C. § 1983, we hold: (1) The Kansas Whistleblower Act, K.S.A. 75-2973, provides Kansas classified civil service employees with permanent status an adequate exclusive remedy for claimed retaliation for whistleblowing, and no common-law remedy exists that they are entitled to pursue; (2) the Kansas Highway Patrol and its officers in their official capacities are not "persons" under 42 U.S.C. § 1983 who are amenable to suit for monetary damages, and this absolute defense and the State's sovereign immunity are not subject to waiver or consent to be sued in the absence of legislative action which so provides; (3) the stipulation of the parties dismissing individual defendants will not be rescinded because the request to rescind was not made to the trial court below and the parties cannot be placed in approximately the same positions if now considered; (4) the district court's affirming the findings of fact and conclusions of law of the Kansas Civil Service Board in the administrative appeal is affirmed; and (5) plaintiffs' actions in openly denouncing and protesting within their chain of command to other "law enforcement officials" of illegal activity in not enforcing laws designed for public safety were protected internal whistleblowing and were correctly submitted to a jury for its determination of disputed facts.
Appeal from Shawnee district court; CHARLES E. ANDREWS, JR., and JAN W. LEUENBERGER, judges. Opinion filed July 20, 2001. Affirmed in part and reversed in part.
Anne L. Baker, of Wright, Henson, Somers, Sebeluis, Clark & Baker, LLP, of Topeka, argued the cause, and Thomas E. Wright, of the same firm, was with her on the briefs for appellants/cross-appellees.
Alan L. Rupe, of Husch & Eppenberger, LLC, of Wichita, argued the cause, and Kelly J. Johnson, of the same firm, was with him on the briefs for appellees/cross-appellants.
The opinion of the court was delivered by
LARSON, J.: This action culminates almost 8 years of litigation before the district courts and administrative bodies. The State of Kansas Highway Patrol now appeals from a jury verdict in favor of four highway patrol trooper plaintiffs in a tort action for retaliatory discharge premised on their contention that their positions were eliminated in retaliation for whistleblowing activities. The troopers have cross-appealed, contending the trial court erred in affirming the Kansas Civil Service Board's (KCSB) denial of relief to three of the troopers under the Kansas Whistleblower Act, K.S.A. 75-2973, and in entering judgment in favor of the State of Kansas on all of the plaintiffs' alleged causes of actions for violations of their right of free speech under 42 U.S.C. § 1983 (1994).
Matters are further complicated by the facts that three of the plaintiffs were classified state employees with permanent status and that the fourth did not have permanent status; contradictory evidentiary findings from a KCSB administrative hearing and a jury trial in district court; and several changes in the caselaw relating to sovereign immunity and the exclusive remedy of state statutes which occurred during the pendency of these actions--especially during their appeals. See Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S. Ct. 2240 (1999); Prager v. Kansas Dept. of Revenue, 271 Kan. ___, 20 P.3d 39 (2001); Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 9 P.3d 1251 (2000); Schall v. Wichita State University, 269 Kan. 456, 7 P.3d 1144 (2000).
Statement of facts and proceedings
The plaintiffs in this case were employees of the Kansas Highway Patrol (Patrol). John W. Connelly started in 1960, Paul L. Wade, Jr., in 1962, Melvin M. Wedermyer in 1959, and William R. Barrett in 1975. Connelly, Wade, and Wedermyer retired as troopers from the Patrol but accepted positions, as did Barrett, as inspectors in the Motor Carrier Inspection Troop (MCIT).
In 1988, the Patrol assumed the responsibility, under the MCIT, of enforcing laws relating to the size, weight, and load of motor vehicles and trailers, K.S.A. 66-1318 and K.S.A. 66-1324, plus the motor carrier inspection stations, See K.S.A. 66-1320. By the end of 1992, all four plaintiffs were working as Lieutenants, the highest ranking field positions in the MCIT. The person in command of the MCIT was Major Dennis Tangeman. Connelly, Wade, and Wedermyer reported to Major Tangeman and Barrett reported to Captain Ron Desch.
In September 1992, Governor Joan Finney appointed Colonel Lonnie McCollum as Superintendent of the Highway Patrol. Col. McCollum had the opinion the Patrol was top heavy in management positions and that the budget should be reprioritized. Col. McCollum served until he retired in March 1999. His assistant superintendent was Lt. Col. Terry Scott.
Sometime after his appointment, Col. McCollum was asked by Governor Finney, "What is the problem with the white cars?" MCIT cars were white and the common term used to describe them was "white cars." Complaints about the MCIT were being received from citizens, legislators, other agencies, and the Patrol's own troopers. Kansas has a long history of selective enforcement of weight laws. When Col. McCollum became Superintendent, there was a 5,000 pound overweight tolerance with respect to farm trucks and a 1,000 pound tolerance as to nonfarm vehicles. The limited number of MCIT personnel has always precluded thorough enforcement of weight laws. About this same time, the Federal Highway Administration began pressuring Col. McCollum to strictly enforce the State's weight laws or face forfeiture of federal funds in the approximate amount of $194 million.
According to testimony of all four plaintiffs, Major Tangeman had told them Col. McCollum's job was in jeopardy if the MCIT did not stop ticketing farmers. In response to this +pressure, in October 1992, Col. McCollum purportedly instructed the MCIT employees to "leave the farmers alone." The mobile units were instructed to be where the farmers were not. Plaintiff Wade testified, "We had to close our eyes, look the other way, totally leave them alone."
All four of the plaintiffs made it clear to their supervisors that they objected to this order. Lt. Wedermyer listed the order as the number one problem of the MCIT at a troop commanders meeting. Lt. Connelly testified he felt the policy violated his oath of office and that he had protested loudly. All the plaintiffs testified that due to the paramilitary organization of the Patrol it was appropriate to raise their concerns about Col. McCollum's order internally through the chain of command to their respective supervisors, and all four plaintiffs did so.
In January 1993, the Patrol was informed the MCIT budget had to be reduced by approximately $500,000. Lt. Col. Scott recommended that the agency request restoration of approximately $330,000 to meet payroll and work on a proposal to address all MCIT problems.
In late February, Lt. Col. Scott proposed four options to Col. McCollum to address the problems with MCIT. The first opinion was to do nothing, which was immediately rejected. The second option was to abolish the entire MCIT and transfer its enforcement responsibilities to highway patrol troopers. This was the option recommended by Lt. Col. Scott. Col. McCollum rejected this option because he felt it would disrupt the lives of too many employees. The third option was to proceed with the restructuring Major Tangeman had initiated for the three MCIT regions, with a captain and a lieutenant in charge of each region. Implementing that option would have cost about $350,000 more than the amount appropriated. The fourth option was to integrate the MCIT under the command structure of the Patrol, with the result of eliminating the separate supervisory structure of the MCIT. Col. McCollum met with the Governor and the budget director to appeal reductions but became committed to the fourth option, the plan of placing the MCIT directly under the command of the Patrol. If this was done, it was obvious that the lieutenant positions in the MCIT would no longer be necessary.
In April 1993, a letter was sent to all Patrol employees advising of a restructuring of the Patrol including the MCIT and that a retreat would be held to solicit input. On May 6, 1993, approval of the Department of Administration was obtained to reallocate the MCIT lieutenant positions, and Connelly, Wade, Wedermyer, and Barrett were informed their positions were being eliminated. All four were advised of bumping rights, with Wade, Wedermyer, and Connelly choosing to be laid off and Barrett remaining employed by the Patrol.
The plaintiffs then voiced their objections to the Kansas Attorney General concerning the "leave the farmers alone" policy on June 1, 1993, and through newspaper articles published in the Kansas City Star on June 4, 1993.
Thereafter, the plaintiffs appealed the layoffs to the KCSB and filed suit against McCollum, Scott, and the State of Kansas for common-law retaliatory discharge and violation of First Amendment rights under 42 U.S.C. § 1983.
After initial appeals concerning jurisdiction determined that the plaintiffs had alleged a violation of K.S.A. 75-2973 and jurisdiction existed before the KCSB, a 5-day hearing was held where the plaintiffs claimed the reorganization violated K.S.A. 75-2973 because it was undertaken in retaliation for their complaints. The Patrol contended the reorganization was made because of budgetary restraints and to eliminate unnecessary middle management positions and improve service at lower costs to the State.
The KCSB order denied the plaintiffs relief and included extensive findings of fact and the following conclusions of law:
"The [defendant's] action eliminating the positions of MCI Lieutenant was a reasonable decision made in response to the severe budgetary constraints imposed on the agency by the Governor and the Legislature for FY 1993 and FY 1994. Furthermore, the decision was one part of a reasonable comprehensive approach to resolving the numerous problems that had been associated with MCIT over many years. Under that approach, the agency instituted a reorganization to integrate MCIT within the regular troop command structure of the Highway Patrol, thereby eliminating the need for the MCIT Lieutenant positions. The reorganization . . . was designed to eliminate unnecessary middle management positions and convert them to direct service positions at a lower cost to the state. The decision to reorganize MCIT and the agency as a whole was made in the legitimate exercise of statutory discretion delegated to the Superintendent of the Highway Patrol. K.S.A. 66-1318; 66-1319; 66-1324; 74-2106; 74-2112; 74-2115.
. . . .
"The appellants have not met their burden of establishing that the decision to eliminate the four MCI Lieutenant positions was a retaliatory action against any of the appellants. The decision to eliminate their positions could not have been made in retaliation for any external reports they made to the Attorney General, the press, or any other person outside the Highway Patrol, because all of the reports to persons outside the agency were made after the decision was made and the appellants were notified that their positions were to be eliminated.
"The whistleblower statute was not intended to reach objections aired by state employees only within the ranks of the agency itself, known as 'internal whistleblowing.' . . .
". . . Even if internal whistleblowing can be the basis of a claim under the whistleblowers' statute, the respondent agency's decision to eliminate the appellants' positions was not made in retaliation for any internal complaints made by the appellants. . . .
". . . [Plaintiff] Barrett never attained permanent status in the position of MCIT lieutenant to which he was promoted effective December 18, 1994. K.S.A. 75-2944(2). Therefore, he is not entitled to rely on the whistleblower statute to appeal the agency's decision eliminating his position as MCI lieutenant."
Connelly, Wade, and Wedermyer appealed the KCSB decision to the district court, which affirmed the Board, finding it did not erroneously interpret or apply K.S.A. 75-2973. The court found the prescribed procedures for hearing the plaintiffs' appeals had been followed, that the Board decision was supported by substantial evidence, and that the decision was not unreasonable, arbitrary, or capricious.
Summary judgment motions of the State raising issues of the exclusivity of the civil service remedy and collateral estoppel were denied, a requested interlocutory appeal was denied, and the civil actions were the subject of a 2-week trial in May 1999. By agreement of the parties while instructions were being prepared, defendants McCollum and Scott were dismissed in a stipulation which stated:
"1. At all times herein material, Lonnie McCollum and Terry Scott were acting within the scope of their authority as employees of the State of Kansas for all purposes relevant to this lawsuit.
"2. The acts of Lonnie McCollum and Terry Scott relating to the elimination of plaintiffs lieutenant positions in the MCIT were undertaken in their official capacities, and their actions are the responsibility of and attributed to the State of Kansas.
"3. Defendants Lonnie McCollum and Terry Scott are hereby dismissed from this case, in their individual capacity."
The defendants objected to the whistleblowing instruction. The trial court denied defendants' motion for a directed verdict. The jury returned verdicts against the defendant State of Kansas on both the common-law whistleblower claim and the civil rights claim as follows: John W. Connelly, $140,156 for lost wages and benefits and $280,312 for emotional distress and mental anguish; William R. Barrett, $112,785 for lost wages and benefits and $225,570 for emotional distress and mental anguish; Paul L. Wade, Jr., $169,036 for lost wages and benefits and $280,312 for emotional distress and mental anguish; and Melvin M. Wedermyer, $106,743 for lost wages and benefits.
Upon consideration of the plaintiffs' motion for attorneys fees pursuant to 42 U.S.C. § 1988 (1994), the trial court ruled that the State of Kansas was not a "person" for purposes of 42 U.S.C. § 1983, such that the jury verdicts for violation of civil rights could not stand and attorney fees could not be allowed. The trial court still affirmed the judgment amounts in their entirely, opining that the jury would have calculated the damages the same whether or not the § 1983 action was included in the instructions.
The State appealed and raises these contentions:
Issue I: Whether a cause of action for retaliatory discharge on public policy grounds exists for highway patrol officers who complained within the chain of command about an unpopular policy adopted by the head of the highway patrol.
Issue II: The judgments in favor of plaintiffs Connelly, Wade, and Wedermyer should be reversed because the Kansas Civil Service Act Whistleblower Act, 75-2973, provides these plaintiffs with their exclusive state law remedy.
Issue III: Because the plaintiffs before the Civil Service Board litigated and lost their contention that the plaintiffs' lieutenant positions were eliminated in retaliation for plaintiffs' verbalized opposition to the "leave the farmers alone" policy, summary judgment should have been granted to the defendant under the doctrine of collateral estoppel.
The plaintiffs cross-appeal and raise these contentions:
Issue I: Did the district court err in overturning the jury's verdict in favor of plaintiffs on their First Amendment cause of action?
Issue II: If this court finds the Kansas Civil Service Act precludes plaintiffs' retaliatory discharge tort claims, did the Civil Service Board and the district court err in rejecting plaintiffs' administrative appeal of their dismissals?
Prager, 271 Kan.___, was filed after this appeal was argued and the parties' Supreme Court Rule 6.09(b) (2000 Kan. Ct. R. Annot. 41) responses were predictable.
The plaintiffs argued the Prager decision should not affect the outcome of this appeal. They contend the standard of review differs, the State voluntarily waived sovereign immunity here, both the KCSB and district court held K.S.A. 75-2973 did not protect the plaintiffs, and the facts in this case and Prager were significantly different.
The State embraced Prager as substantiating the argument of its second issue that K.S.A. 75-2973 provided the covered troopers with an adequate, exclusive remedy for any claimed retaliation for whistleblowing. And, in addition, the State contended Prager correctly applied the rule of Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), that the State is not a "person" within the meaning of 42 U.S.C. § 1983 and the verdict for alleged violation of First Amendment rights was properly set aside by the trial court. The State further argued that Prager provided no authority that sovereign immunity can be waived in § 1983 actions and Prager supported the trial court's ruling on this issue.
Standards of review
There are different standards of review which apply to decisions of administrative bodies, motions for directed verdict, objections to instructions, constructions of statutes, and matters of law. Each will be enumerated and applied to the various issues raised.
Application of the decisions of Alden v. Maine, Prager v. Kansas Dept. of Revenue, Goldbarth v. Kansas Board of Regents, and Schall v. Wichita State University to the issues raised by this appeal and cross-appeal.
We first consider the State's second issue in its appeal which we believe our holding in Prager directly answers.
DOES K.S.A. 75-2973 PROVIDE AN ADEQUATE, EXCLUSIVE REMEDY TO A CLAIMED COMMON-LAW WHISTLEBLOWING RETALIATORY DISCHARGE CAUSE OF ACTION SO THAT THE JUDGMENTS IN FAVOR OF PLAINTIFFS CONNELLY, WADE, AND WEDERMYER MUST BE REVERSED?
This issue was preserved by motions for summary judgment which were denied and a motion for directed verdict which was denied. It now comes before us as a question of law, for which our review is unlimited. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996).
The argument that the State makes here applies only to plaintiffs Connelly, Wade, and Wedermyer, who were in classified civil service and had permanent status, and, thus, fall under the precise wording of K.S.A. 75-2973(d), which reads in applicable part:
"Any officer or employee who is in the classified civil service and has permanent status under the Kansas civil service act may appeal to the state civil service board whenever the officer or employee alleges that the disciplinary action was taken against the officer or employee in violation of this act . . . . "
Plaintiff Barrett, as the KCSB specifically found, did not have permanent status in his position and does not fall under the protection or the restrictions of K.S.A. 75-2973. The State does not attempt to make its exclusive remedy argument applicable to him and we agree.
The State's argument is that because the common-law tort of retaliatory discharge for whistleblowing actions was not intended to be available for civil service employees covered by K.S.A. 75-2973(d) and the statutory remedies are more than adequate, Connelly, Wade, and Wedermyer's exclusive remedy is the right to appeal to the KCSB.
The plaintiffs argue that K.S.A. 75-2973 and the proceedings under the Kansas Civil Service Act, K.S.A. 75-2925 et seq., do not provide them with an adequate remedy for the retaliation they suffered at the hands of McCollum, Scott, and the State of Kansas.
The arguments of the State in this appeal and the responses of the plaintiffs had actually been raised and briefed at the time we issued our show cause order in Prager, where we asked:
"'Why appellant's appeal as to his issue raising a common-law "whistleblowing" claim for relief should not be dismissed under the alternative remedies doctrine because K.S.A. 75-2973 provides a classified civil service employee an adequate alternative remedy and thereby precludes the common-law remedy.'" 271 Kan. at ___ (Slip op. at 14).
The arguments and contentions raised by the State here are similar to those raised by the State in Prager and, likewise, the responses and the disclaimers made by the plaintiffs here are much like those made by the state employee in the Prager case. Although the plaintiffs here argue that the finding of the KCSB, which was affirmed by the district court, that K.S.A. 75-2973 did not apply required a finding that no adequate remedy existed here, the State more convincingly argues that the Prager decision is directly applicable and is determinative of this issue. We agree with the State.
We will not repeat here our wording from Prager which quoted K.S.A. 75-2973(b), 271 Kan. ___ (Slip op. at 60-61), and discussed Palmer v. Brown, 242 Kan. 893, Syl. ¶¶ 1-3, 752 P.2d 685 (1988), and Crandon v. State, 257 Kan. 727, 897 P.2d 92 (1995), cert. denied 506 U.S. 1113 (1996). 271 Kan. at ___ (Slip op. at 61-63). However, we will quote the discussion in Prager of the ultimate question as raised by our decision in Flenker v. Willamette Industries, Inc., 266 Kan. 198, 202-03, 967 P.2d 295 (1998):
"'The alternative remedies doctrine at issue here, referenced sometimes as preclusion, is a substitution of law concept. Under the alternative remedies doctrine, a state and federal statute would be substituted for a state retaliation claim if the substituted statute provides an adequate remedy. Bair v. Peck, 248 Kan. 824, 838, 811 P.2d 1176 (1991).'
"Our reference to Bair v. Peck was to the statement therein that '[i]t has long been recognized that no one has a vested right in common-law rules governing negligence actions which would preclude substituting a viable statutory remedy for one available at common law. [Citation omitted.]' 248 Kan. at 838-89.
"We must then focus on the question asked in Flenker, which is 'whether the statutory remedy is adequate and thus precludes the common-law remedy.' 266 Kan. at 203.
"Flenker involved a certified question: whether the remedy provided by § 11(c) (29 U.S.C. § 660(c) [1994]) of the Occupational Safety and Health Act (OSHA) for employees who allege they have been discharged in retaliation for filing complaints under that statute precludes the filing of a Kansas common-law wrongful discharge claim under Kansas' public policy exception to employment-at-will.
"We ultimately determined that OSHA did not provide an employee an adequate remedy, with our significant finding being that the employee's only OSHA remedy consisted of the right to file a complaint with the Secretary of Labor who then had the sole discretion to bring an action on the employee's behalf. The employee had no appeal rights if the Secretary declined to file the suit. We found this lack of control in the employee and the absolute discretion of the Secretary was 'a significant limitation of the employee's right of redress.' 266 Kan. at 206. We also noted that the Secretary's discretion could be affected by budgetary constraints and political pressure.
"Our Flenker opinion noted that under the OSHA statute, an employee only had 30 days from the date of the violation to file a complaint under the act. This short time frame is consistent with K.S.A. 75-2973(d), which requires a complaint to be filed by an employee within 30 days of the violation. This was not deemed by us to be the most critical factor in Flenker for, as we have previously stated, the lack of control in the employee was the most significant factor. Flenker is clearly distinguishable from our case because here, Prager is in control of his statutory claim, while under the OSHA statute, the employee has no such right.
"The ultimate question for us is whether K.S.A. 75-2973 provides Prager with an adequate remedy.
"K.S.A. 75-2973(d) provides that a classified employee such as Prager, who alleges he was disciplined in violation of the statute, has the right to appeal to the Kansas Civil Service Board. The Kansas Legislature has provided extensive procedures under KAPA to employees such as Prager, which include representation by counsel, filing of pleadings, issuing of subpoenas, discovery, presentation of evidence and arguments in a hearing, reconsideration, and ultimately filing appeals. See K.S.A. 77-501 et seq.
"If the Board finds the disciplinary action was unreasonably taken, K.S.A. 75-2973(d) requires the Board to 'modify or reverse the agency's action and order such relief for the employee as the [B]oard considers appropriate.' In addition, the Board may discipline the violator.
"Also weighing in favor of limiting classified civil service employees to the remedies provided by K.S.A. 75-2973(d) is the legislative attempt to balance the various competing interests of the State to encourage whistleblowing while still preventing disruptions of the normal agency disciplinary processes. The legislation appears to be crafted to cover the type of situation we are presented with.
"We recognize that the legislature did not expressly make this remedy exclusive, which weighs against such a finding. Cf. Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 305-06, 580 P.2d 1315 (1978). Prager also argues that a finding of exclusiveness would be contrary to Parker v. Kansas Neurological Institute, 13 Kan. App. 2d 685, 687-689, 778 P.2d 390, rev. denied 245 Kan. 785 (1989). Parker involved a claim of racial discrimination and differs from our case where a specific legislative statute was crafted to cover a specific factual situation.
"State employment comes with benefits, but it is also necessary for the general public good that employees accept limitations that insure a workable system. We hold that K.S.A. 75-2973 provides a classified civil service employee an adequate remedy for claimed whistleblowing activities, and the dismissal of Prager's purported common-law whistleblowing claim is affirmed, although not for the reasons utilized by the trial court." 271 Kan. at ___ (Slip op. at 64-66).
We note that the State argues here that the suggested findings proposed by the plaintiffs in the administrative hearing included remedies that would have been more than adequate had they been granted by the KCSB, but we do not deem that attempt to obtain a recovery should in any manner be construed as an admission that an adequate remedy was available administratively. The troopers did nothing more than rightfully assert their available remedies while still maintaining they were not adequate.
We are equally unimpressed and, in fact, appalled by the troopers' argument that because the make-up of the KCSB consisted of "political appointees of the governor" this somehow made their remedies inadequate. Their brief somewhat retreats from this position by stating they do not question the integrity of the KCSB in this case, but this argument is specious. A more persuasive argument is the limited time to appeal (30 days) under K.S.A. 75-2973(d) which was a factor considered in Flenker, 266 Kan. at 206, but which is not a factor here and not a valid reason to change the result we reached in Prager.
The troopers also argue that relaxed rules of evidence in administrative appeals restrict their remedies, an argument we do not find persuasive. We are also not convinced by the argument that the scope of review of the rulings of the KCSB under K.S.A. 75-2929h and K.S.A. 77-621 is so limited that it somehow makes the administrative proceedings inadequate.
We reiterate our decision in Prager and hold that the Kansas Whistleblower Act, K.S.A. 75-2973, as applied to classified state employees with permanent status, provided Connelly, Wade, and Wedermyer with an adequate exclusive remedy for claimed retaliation for whistleblowing and no common-law remedy exists that they are entitled to pursue. As such, the judgments in the district court rendered on behalf of the plaintiffs Connelly, Wade, and Wedermyer must be reversed unless the decision of the KCSB is likewise set aside or the trial court erroneously ruled on the § 1983 claim.
With the above holding reached, we need not consider or decide the third issue raised by the State concerning the collateral estoppel effect of the KCSB ruling that the MCIT Lieutenants did not meet their burden of establishing that the decision to eliminate their positions was a retaliatory action. Such an argument might have existed as to the claims of Connelly, Wade, and Wedermyer but can have absolutely no effect on the Barrett claim because of the finding that he is in no way involved in or covered by the KCSB proceedings.
We next turn to the rulings in Prager and earlier cases relating to whether the State of Kansas and the Kansas Highway Patrol are "persons" who can be subject to monetary damages under the provisions of 42 U.S.C. § 1983 (1994). This question is intertwined with recent cases wherein sovereign immunity has been reestablished where federal legislation imposed obligations. See Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S. Ct. 2240 (1999); Goldbarth v. Kansas Board of Regents, 269 Kan. 881, 9 P.3d 1251 (2000); Schall v. Wichita State University, 269 Kan. 456, 7 P.3d 1144 (2000). In this case, apparently over problems as to how to instruct on qualified immunity, a stipulation was entered into by the parties whose intention and legal effect is of critical importance.
DID THE TRIAL COURT ERR IN OVERTURNING THE JURY'S VERDICT ON THE § 1983 CLAIM AND CAN AND DID THE STATE WAIVE THE FACT IT IS NOT A "PERSON" WITHIN THE MEANING OF 42 U.S.C. § 198