CLARKSBURG - Former West Virginia University football coach Rich Rodriguez lost a crucial contest against the university, 36 to 2.
U.S. District Judge John Bailey remanded a university lawsuit against Rodriguez to Monongalia Circuit Court on Feb. 11 after finding 36 appellate court decisions in the university's favor and two in favor of Rodriguez.
The lopsided count persuaded Bailey that the university is an arm of the state, subject only to state court jurisdiction.
Rodriguez had argued that federal diversity jurisdiction applied because the university is a citizen of West Virginia and he is a citizen of Michigan.
He resigned Dec. 19 to coach at the University of Michigan.
WVU sued him Dec. 27 in Monongalia Circuit Court in Morgantown, claiming he owed a $4 million contract buyout.
Private attorneys Thomas Flaherty of Charleston and Robert Fitzsimmons of Wheeling filed the suit for the university board of governors.
Rodriguez's attorney, Sean McGinley of Charleston, removed the suit to federal court in Clarksburg on Jan. 16.
The board of governors moved to remand, denying that the university is a citizen of the state.
The board disputed his claim that he became a Michigan citizen before the university sued him.
McGinley responded that if the university was an arm of the state, Attorney General Darrell McGraw would have filed the suit.
McGinley urged Bailey to add the West Virginia University Foundation to the suit, claiming the foundation would collect any buyout payment.
McGinley argued that former Mountaineer basketball coach John Beilein paid a buyout to the foundation, not the university, when he departed for Michigan.
In a Feb. 8 answer, Flaherty wrote that in 1998 the West Virginia Supreme Court of Appeals declared the university an arm of the state.
He quoted a Court decision that, "...the board of governors acts for any in behalf of the State of West Virginia and in so doing exercises the sovereign power and authority of the State."
Flaherty needled his adversary, pointing out that McGinley once moved to remand a case on the same basis as the university in this case.
Flaherty pointed out that the governor appoints 12 of 18 board members and all 18 take an oath prescribed by the West Virginia Constitution.
He wrote that Attorney General McGraw appointed him and Fitzsimmons as special assistants, a fact no one had previously disclosed.
He wrote that any payment would go to the university, not the foundation.
Judge Bailey agreed.
"It is clear that the outcome of thgis litigation will have an effect on state funds," he wrote.
"This Court will not consider what may have transpired as part of an agreed settlement with respect to Coach Beilein," he wrote.
If Rodriguez's contract is valid and enforceable, he wrote, it requires payment to the university.
Bailey rattled off reasons to regard the university as an arm of the state.
"The university has no power to tax," he wrote. "Moneys may only be withdrawn from University accounts via a check issued by the state treasurer.
"All property of the University is property of the State. Employees of the university are state employees."
He listed 36 cases from appellate courts in all eleven federal circuits finding state universities to be arms of states.
He wrote, "... research reveals only two circuit court opinions concluding that a particular university was not an arm of the state."
One case involved Rutgers, a private university that turned public.
Bailey proved statewide interest in the university by repeating an old joke that, "...on home football game days, Morgantown is the largest city in the state."
At the end he wrote that he didn't have to address the issue of whether Rodriguez was a West Virginia citizen when the university sued him.