                                                                        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       This order and judgment is not binding precedent, except under the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


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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).

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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




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