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Monday
Sep212009

Churchill v CU: Judge Denies Churchill's Motion to Amend Judgment

Not surprisingly, Judge Naves denied Churchill’s Motion to Amend Judgment Pursuant to C.R.C.P 59.  The two-sentence Order issued September 18th came after the motion and response summarized by this Blog and posted on the DU Corporate Governance site.

In Churchill’s final Reply in Support of the motion, attorney David Lane raised for the first time the assertion that the stipulation referred to by CU in its original Motion to Dismiss was only a draft stipulation, and not the document filed with the Court.  That assertion allowed CU to reveal in its reply that in fact there were two stipulations signed by the parties.  The “Joint Stipulation for Dismissal of Claims and Withdrawal of Motions to Dismiss” was filed with the court December 20, 2007 and says nothing about waivers of liability. 

The second, a Joint Stipulation that includes a “Limited Waiver of Eleventh Amendment Immunity,” is the document referred to in CU’s motion to dismiss.  It was not initially filed with the court but was, by agreement of the parties, held confidential unless “necessary to resolve a dispute between them as to its validity or construction.”  In other words, the stipulation that provides the basis of the court’s decision to dismiss the claim and nullify the jury’s ruling was a private contractual agreement between the parties.  It is this agreement that allowed Judge Naves to dimsiss the claim on the basis of quasi-judicial immunity which, without the stipulation, would not have been available to CU as an entity.        

With the Rule 59 Motion now denied, the case can be presented for appeal.

Friday
Sep112009

Churchill's Motion to Amend Judgment to Dismiss

On July 21, 2009, Churchill attorney Qusair Mohamedbhai filed a motion under C.R.C.P. Rule 59 to amend the trial court judgment to dismiss the case.  Followers of this case will remember that after the jury verdict finding Churchill’s First Amendment rights had been violated and awarding $1.00 in damages, CU filed a motion to dismiss the case based on quasi-judicial immunity, a claim that CU asserted was reserved by stipulated agreement between the parties.  The court found for CU and dismissed the entire claim, based primarily on its interpretation of the stipulation, effectively nullifying the jury verdict.

Rule 59 allows for post-trial motions on (1) a new trial of all or part of the issues; (2) judgment notwithstanding the verdict [this was the section under which CU filed its successful motion]; (3) amendment of findings; or (4) amendment of judgment. [section applicable to Churchill’s motion].  Filing a motion under Rule 59(4) is a strategic move; it is not procedurally required for appeal.  In essence the losing party is asking the judge to reconsider his/her decision.  Such motions are not often successful.  Churchill has also filed a timely notice of intent to appeal, seeking to preserve that right in the event Judge Naves does not change his mind.

Churchill’s Main Arguments

  • The court misinterpreted the stipulation between the parties.  Churchill did not agree to dismiss any official capacity claims, which are never subject to the quasi-judicial immunity defense, and therefore still apply and cannot be dismissed using the quasi-judicial immunity argument.
  • Once the motion to dismiss was granted, the court should not have gone on to address reinstatement and misstated the law when it was addressed. 
  • The legal standard in a First Amendment retaliation case is reinstatement unless the employer-employee relationship has been irreparably damaged.  The court ignored that standard as well as Churchill’s evidence presented at trial that he bore no animosity toward CU and instead relied on Churchill’s quotes in newspaper articles. 

CU’s Main Arguments in Response

  • The standard of review under Rule 59 is that there be specific errors in the form of the decision rather than simply not liking the decision. Churchill’s motion does not address any specific errors, and is, rather, “a brief in opposition to the judge’s opinion in rendering final judgment.”  The appropriate venue for such opposition is in appeal.
  • Churchill “disregards the plain language of the stipulation.”  The stipulation states “Professor Churchill shall dismiss all official capacity and individual capacity claims currently pled against the individual Regents of the University of Colorado with prejudice” but “will permit the same recovery [against the University] that might otherwise be had against any of its officials or employees acting in their official or individual capacities.”  In other words, CU gets to act not like an institution but like and individual in exchange for not pursuing claims against the individual Regents.
  • Acting like an individual, CU could be sued either (or both) under an “individual capacity” claim or an “official capacity” claim.  An official capacity claim requires proof that the official was doing something unconstitutional as a result of the (probably unofficial) policy or custom of the institution he/she worked for, and is not subject to the quasi-judicial immunity defense.  An individual capacity claim has a lower standard of proof—that the individual “caused the deprivation of a federal right”—but is subject to the defense of quasi-judicial immunity.
  • Because Churchill never presented or argued an official capacity claim against CU, it cannot now argue that legal theory.  The only claim presented and argued was the individual capacity claim against CU for which CU justifiably invoked the quasi-judicial immunity defense (as agreed in the stipulation), and which the court ruled on.
  • The jury’s award of just $1.00 proved that while the jury found that Churchill’s rights had been violated, the violation caused no damage.  “A Court should not grant prospective equitable relief in the absence of actual damages, rather than a technical violation that the jury has declined to compensate through an award of economic or non-economic damages.”

Mr. Mohamedbhai submitted two Exhibits with the Motion: one a chart showing how often Judge Naves utilized or quoted from CU’s motion to dismiss, and the other an affidavit from juror Bethany Newill describing the jury process in reaching its verdict and claiming that Judge Naves misinterpreted the meaning of the verdict.  Lawyers might well smile at the accusation that evidence of an attorney’s brief being used verbatim in a judge’s written decision is somehow improper; indeed, law school students are taught that such use is to be considered proof of a well-written brief—a high honor to be strived for.

Regarding the use of a juror’s affidavit, CU points out that such use is prohibited under Colo. Rules of Evidence 606(b): “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith…A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.”

In the end, pursuing an appeal on this claim should come down to whether or not the Regents (and therefore CU, standing in the Regents’ shoes) were free enough from political influence to qualify for quasi-judicial immunity, which is a large and imprecise legal issue.  The issue of whether the stipulation meant this or that is primarily a contract interpretation matter, with contract law favoring a plain meaning interpretation of what is written, which seems to favor CU’s arguments.

A final interesting procedural issue is whether the Motion to Amend Judgment must be ruled upon before the Appeal can be considered to be timely filed, as an appeal filing requires that final judgment be issued in lower court in all matters except attorney’s fees.  Judge Naves retains jurisdiction over the Rule 59 motion under Colorado Appellate Rule 4.  No hearing has been set to consider this Motion. 

Documents filed in this case are available at the DU Corporate Governance site.

Thursday
Jul092009

Implications and Explications in Judge Naves' Order

One of the ongoing issues in the post-verdict motions, responses and replies was a debate about what the jury verdict actually meant. Clearly the jury found the Regents had violated the First Amendment, but what did the one dollar nominal award mean? David Lane asserted throughout the briefs and in the hearing last week that the jury’s decision meant a) that there had been no research misconduct, and b) that the jury gave Churchill exactly what he asked for in court—no money and the right to get his job back.

 

Judge Naves utterly rejected both these interpretations of the jury’s verdict. All the jury found is that “the University did not prove that a majority of the Regents would have voted to dismiss Professor Churchill in the absence of his political speech. That is a very different question than whether Professor Churchill engaged in research misconduct” for which there was “no such finding by the jury” and “remains the province of the University’s faculty.”

 

Regarding Churchill’s assertion that the jury award of only one dollar was victory in giving him exactly what he wanted, Judge Naves wrote: “…it was clear from the nature of the testimony that Professor Churchill (and other witnesses) provided, as well as the argument of his counsel and his pre-trial pleadings, that Professor Churchill was seeking compensation for lost wages, loss of reputation, and emotional distress.” The Order recites the sequence of questions the jury asked the Judge about what to do if they found in favor of Churchill but wanted to award him no damages. Judge Naves instructed the jury to nonetheless award the nominal damage of one dollar, which the jury did less than an hour later. Based on this exchange, Judge Naves found as a matter of law that the jury determined Churchill did not incur any actual damages, not that the jury was “giving Churchill what he asked for.” In other words, Judge Naves has now ruled on what the jury’s verdict meant, so the debate is over (for now).

Thursday
Jul092009

Pat O'Rourke's Clever Trap

CU lawyer Pat O’Rourke has often been maligned throughout this trial. He wasn’t as dramatic or amusing as David Lane; his closing arguments were boring; his witnesses were impeached so often court observers began to cringe when they testified. But the startling outcome of Judge Naves’ Order is the legal version of the Tortoise and the Hare, or more specifically—the story of the Clever Trap.

 

Back in 2007, O’Rourke saw ahead to the possibility of needing to use the quasi-judicial immunity defense. “I know that I’m never going to be able to beat David in terms of courtroom drama – he’s very good at what he does, so I’ve got to try to create some legal openings somewhere else in the case,” O’Rourke replied when I asked him about his strategy.

 

The parties agreed to allow CU to substitute itself as an entity for the individual Regents who were sued, with CU agreeing to not invoke 11th Amendment sovereign immunity as a defense. Since quasi-judicial immunity generally only applies to individuals, Mr. Lane and associates seemed to not consider it a threat once the 11th Amendment immunity was waived. But hidden in plain sight in the pre-trial Stipulation were the magic words: “reserving to the University the ability to present the same defenses that would have been applicable to any of its officials or employees acting in their official or individual capacities.” In other words, CU as an entity could now assert quasi-judicial immunity if it applied.

 

The sequence of presenting briefs to the Court is for the initiating party to file a Motion, to which the other party will file a Response addressing the arguments presented in the Motion, to which the initiating party will file a Reply as the final brief presented to the court. Part of the Clever Trap was to use this filing sequence to spring the trap.

 

Mr. O’Rourke’s initial Motion did not mention the Stipulation agreement to explain why quasi-judicial immunity applied in this case. If it had, Lane would have been alerted at that point and used his Response brief to try to counter the assertion. Mr. Lane’s Response to the Motion only noted, rightly, that CU had waived its 11th Amendment immunity, and that quasi-judicial immunity applied to individuals, not to entities such as CU. No reference to the Stipulation, which infers that Churchill’s attorneys did not even then see the trap. It was not revealed until Mr. O’Rourke’s Reply when he quoted the phrase in the Stipulation agreement that gave the reason the usual limitation to individuals did not apply in this case. That would have been the last word in briefing arguments (and one can only think that Pat O’Rourke planned it that way) except that Judge Naves ordered additional briefs be submitted on the issue. The briefs did not offer any new arguments, but probably added protection to the ruling being overturned.

 

As we know now, in the end, the Clever Trap worked. While the details are probably only interesting to we geeky lawyer types, the strategy is a great lesson for budding litigators who can never hope to achieve David Lane’s courtroom flamboyance. There is always plain old thinking and planning ahead—far ahead.

 

When I read O’Rourke’s Reply, I sent him a personal question: “Do you play chess? And if so, do you always win?” He replied, “I do play chess, but don’t always win.”

Wednesday
Jul082009

Looking Closer at Judge Naves' Order

 

News agencies in Colorado and elsewhere have reported on the bottom line of Judge Naves’ decision, couched as “no reinstatement.” In fact, there are three key elements to the Order and several interesting nuances.

 

1) In deciding to terminate Churchill’s employment, the Regents were acting in a quasi-judicial capacity that provides immunity from any lawsuits that arise from unhappy recipients of their adjudicative responsibilities. Therefore the jury’s verdict is vacated—void, gone, made as if it never happened.

 

2) And even if quasi-judicial immunity were not applicable, Churchill should not be reinstated because a) the jury did not find that he incurred any damage from the First Amendment violation, so the court cannot now apply the equitable remedy to non-existent damage; and b) Churchill’s past behavior—in statements to the press and in retaliatory complaints filed against CU faculty investigating him—indicate that his animosity toward CU will inhibit CU’s effective operation as a university.

 

3) Nor is Churchill due any front pay because he failed to mitigate his loss of job damage (i.e. look for a new job or accept any of the several job offers he claimed he received).

 

One of the questions that must come to a thinking person’s mind is why would Judge Naves allow such an extensive trial to happen only to nullify it on what is essentially a legal technicality? The answer is that CU attorney Patrick O’Rourke did not raise this defense until after the trial on the basis that the specific elements would have to be proven in a trial-like setting anyway. If the jury had ruled for CU, there would be no reason to have raised the defense; since the jury ruled for Churchill on the First Amendment claim, O’Rourke could raise it as a post-trial motion.

 

(For the non-legal readers, there are several points in the process of a trial when either party can ask the judge to rule as a matter of law, based on what has been presented to that point. Some are after the initial claims are filed but before evidence is presented, some are after evidence is presented, and some are after a jury trial has been held and a verdict reached. Judgment as a Matter of Law is the later, and allows a judge to overturn a jury decision that clearly ignores the law.  That is not the case here, but it also allows post-decree motions to be considered.)

 

The elements that must be proved to establish that quasi-judicial immunity exists come from Gressley v. Deutsch, 890 F.Supp. 1474, 1480 (D.Wyo. 1994):

 

“(a) the officials’ functions must be similar to those involved in the judicial process; (b) the official’s actions must be likely to result in lawsuits by disappointed parties; and (c) there must be sufficient safeguards in the regulatory framework to control unconstitutional conduct.”

 

Pat O’Rourke made sure that there was ample testimony during trial regarding elements (a) and (c) with references to the extensive investigatory and review procedures and to the fact that Churchill had access to counsel at all times and opportunity to question witnesses and reply to allegations. Judge Naves details these evidences of quasi-judicial function in the Order in support of his findings. Element (b) is pretty well self-evident. There is ample case law for Judge Naves to follow, including a Colorado Supreme Court case and a 10th Circuit case, giving quasi-judicial immunity to university regents when they act to adjudicate a case of faculty misconduct.

 

Judge Naves notes, in a footnote, that the order vacating the jury decision “may” make the question of reinstatement moot. Nevertheless, in the time-honored legal custom of hedging one’s bets, he issued a ruling on reinstatement and front pay.

 

Reinstatement is an issue that required Judge Naves to cut the Gordian knot of speculation around what could or will happen if Churchill is or isn’t reinstated and make a common sense decision. In the end, Judge Naves noted that since an employer’s hostility to an employee should not deny reinstatement, his decision “rel[ied] upon Professor Churchill’s statements demonstrating his hostility to the University.” And that while Churchill could have contested the P&T Committee’s findings of academic misconduct, Churchill chose to file retaliatory complaints against members of the committee. In other words, Churchill’s actions and out of court comments denigrating CU and CU personnel and staff convinced Judge Naves that “There is only a miniscule possibility that his return to the University will be amicable and productive.”

 

Judge Naves also gave credence to the notion that reinstatement would “effectively negate the principle of autonomous faculty control over standards of performance and membership.” Both Churchill and the incoming Chair of Ethnic Studies rejected the P&T Committee’s “judgment defining appropriate standards of scholarship or its unanimous conclusions that Professor Churchill had repeatedly violated them.” Judge Naves: “I conclude that reinstating Professor Churchill would entangle the judiciary excessively in matters that are more appropriate for academic professionals.”

 

The issue of front pay was quickly dispatched after Churchill testified that he had not pursued employment and has even “received a few job offers.” He therefore has not fulfilled his duty to mitigate his job loss and front pay is not appropriate in such an instance.

 

The Order is exhaustively thorough, as would be expected from a judge who anticipates the judgment will be appealed. The rationale for each decision is clear, logical and supported with case law and evidence. As Mr. Lane himself has noted, it will be a difficult job to have it overturned.

Wednesday
Jul082009

John Holcomb on the Issue of Immunity

We have always benefited on this Blog from the active participation and sponsorship from faculty at the Daniels School of Business at the University of Denver.  John Holcomb has been one of them.  He has written the post below on Judge Naves' ruling with respect to qualified immunity.   

 

Could it be that Judge Naves was shielding his ruling on the remedy by holding off ruling on quasi-judicial immunity until the trial was over? Maybe he was actually being crafty. If he had ruled on a motion for summary judgment earlier and stopped the trial at that point, then that ruling would have been subject to immediate appeal. Had he then been reversed, the trial itself would start at a much later time, leaving everything in limbo and perhaps taking Naves out of case on remand. This way, he accomplished three things: (1) expedited resolution of the issues, arguably important for the public interest; (2) exercised his own judicial discretion (or perhaps activism) to render a remedy he thought just, even if he is reversed on the severable immunity issue and (3) kept himself in the case, rather than risk it going to some other judge on remand.

Wednesday
Jul082009

Judge Naves Rules in the Churchill Case

Kevin O'Brien has a post on Judge Naves' decision in the Churchill trial.  It can be found here.  The opinion is posted on the DU Corporate Governance web site.

Wednesday
Jul082009

Judge Larry J. Naves Denies Churchill Even a Pyhrric Victory

After the trial, I posted the opinion that should Judge Naves not grant Churchill the equitable remedy of reinstatement, it would be a “Pyhrric victory” for Churchill—in other words, the victory evidenced by the jury verdict that CU had violated Churchill’s First Amendment rights would come at too high a cost for Churchill personally unless he got his CU job back, or at least substantial front pay. Not only did Judge Naves not grant reinstatement or front pay in lieu of reinstatement, he ruled that “...it is ORDERED that Defendants are GRANTED quasi-judicial immunity as a matter of law...” and as a result, “the jury’s verdict in this matter is hereby VACATED...” [Judge Naves also noted that this ruling may render his order concerning reinstatement moot (see Footnote 1 of the court’s decision) although if the quasi-judical immunity ruling is reversed on appeal, his reinstatement denial ruling will no longer be "moot."]   Now Churchill cannot even claim a Pyhrric victory.

In effect, Judge Naves has, unless reversed on appeal, sanitized CU of the taint of the jury’s decision that CU terminated him not for research misconduct, but for expressing his first amendment rights in violation of the Constitution. Thus, not only is Churchill not entitled to the $1 jury award and the vindication the award represented, but his attorneys cannot seek reimbursement of their attorney fees conjectured to be over $1,000,000 since Churchill did not prevail in his Section 1983 first amendment claim. Most of this cost would never have been incurred by Churchill and his attorneys (or, for that matter, the jury’s time in sitting through a month long trial) had the issue of quasi-judicial immunity been determined before trial by Judge Naves through a motion for summary judgment that as a matter of law CU would prevail.  

What is remarkable about the judge’s decision is that it adopted almost every argument proffered by CU’s legal briefs. Reading today’s trial decision felt like I was re-reading the CU briefs. For example, by not awarding even front pay in lieu of reinstatement, Judge Naves effectively blocked an award of attorney fees to Churchill on the basis that the $1 award represents a Pyhrric victory invalidating the award of attoreny fees under existing case law (in the event his quasi-judicial immunity ruling in favor of CU is overturned and the reinstatement and front-pay issues are no longer moot). 

The particular CU argument that stands out on reinstatement that was adopted by the Judge Naves related to the $1 jury award. Judge Naves reasoned: “As a result, I determine that I am bound by the jury’s implicit finding that Professor Churchill has suffered “no actual damages” as a result of the constitutional violation.” Judge Naves then reasoned that reinstatement would be inconsistent with the jury’s decision that no actual damages were awarded. However, the jury specifically was instructed to only focus on damages up to the day the jury makes its decision, while the court would decide the appropriate damages/remedies after the trial. Based upon existing case law, it is questionable that the jury’s $1 award bound Judge Naves on the reinstatement decision and is probably legally irrelevant.  Factually, this is especially true in light of published jury comments after the trial that five of the jury members sought significant damages while one member held out for no damages since Churchill had testified that he was not seeking money—just his job.

In the forthcoming weeks, we will dissect the Judge’s decision on the basis of its legal merits and weigh the likelihood that the decision will be reversed on appeal. However, it is clear today that Judge Naves’ ostensibly one-sided decision will raise the issue on whether he should have recused himself from hearing the case based upon the appearance of a conflict of interest since he is a CU law school alumnus. However, this fact alone does not indicate that Judge Naves harbored any actual bias against Churchill and for CU in violation of due process clause of the Constitution based upon the standard set recently by the U.S. Supreme Court in Caperton v. Massey Coal Company. In this case, the Supreme Court established by a 5 to 4 decision that due process is not violated unless there is a “showing of a serious, objective risk of actual bias.” While this standard was satisfied in the Supreme Court case because the losing party at the trial level contributed $3,000,000 to the judge’s election to the court of appeals and this judge subsequently decided in favor of the losing party, this standard is not satisfied here because Judge Naves’ CU alumnus status does not constitute a “serious, objective risk of actual bias.”

 

Tuesday
Jul072009

A Ruling in the Churchill Case

The trialjudge has ruled for the University of Colorado, declining to reinstate Ward Churchill or award him front pay.  The case is here.  We will have more commentary later.

Wednesday
Jul012009

Coverage of the Trial of Ward Churchill (Continued)

Charlene Hunter attended the hearing today on the motion filed by Churchill for reinstatement.  She has written two excellent posts located in the tab on the Churchill trial.  For coverage of the hearing, go here.  For a prognostication, go here.

Wednesday
Jul012009

Churchill Hearing: Color Commentary and Prediction

The courtroom was full, but not packed, with the usual Churchill trial observers, mostly Churchill supporters. Questioning was repetitive and tedious at times. Professor Tom Mayer was passionate in his support of Churchill, but frequently had his replies on cross examination struck for non-responsiveness (meaning, he rambled). Dean Gleason was agonizingly precise and careful in his replies to cross examination, reminiscent of Mimi Wesson’s trial testimony.

 

The attorneys stayed true to style. Pat O’Rourke often pounded questions in his precise “list” way: “Isn’t it true that Churchill doesn’t need to be reinstated to publish articles? Isn’t it true that he doesn’t need to be reinstated to publish books? Isn’t it true….” Etc. David Lane used colorful exaggeration (by his own admission) to describe professors as working for bosses who violate the First Amendment. Toward the end of the day, Lane’s exaggerations got to be too much for Judge Naves who sustained all objections to them and caused Lane to say that he didn’t have any more questions because he couldn’t say anything. Judge Naves did not seem amused.

 

My prediction is that Judge Naves will rule on the law, which is that reinstatement is the preferred remedy unless the offending employer can prove that reinstatement will severely damage the violating employer’s enterprise. The burden of proof is with the First Amendment violator, and CU does not seem to have met that burden. While the witnesses—especially Professor Jessor—spoke passionately about the importance of research integrity to maintain academic standards, this is a pretty esoteric concept.

In the end, CU had only speculation that the sort-of-proved allegations of research misconduct would so damage the University’s reputation as to affect hiring and enrollment. No proof of that Churchill couldn’t be civil to colleagues; no proof of any professor having left the university or not taken a job because she/he couldn’t bear to be in an institution with an academic misbehaver. In short, no proof that Churchill’s presence would be disruptive other than to a few academics with a well-developed sense of moral outrage over an academic principle.  If Judge Naves rules against Churchill, it may simply be because in the absense of a clear message from the jury, he is unwilling to "send a message" to all erswhile First Amendment violators.    

Wednesday
Jul012009

Churchill Arguments to Reinstate: Battle of "the Message"

Will reinstating Churchill send the message that research misconduct is accepted at CU, thereby giving the school a reputation for lowered academic standards that will scare off promising faculty and students? Or does not reinstating send the message that CU is unrepentant for its First Amendment violation and cannot be trusted to not do it again, thereby scaring off promising faculty and students?

 

Secondarily, what did the jury’s verdict mean? Did finding for CU mean that there was no academic misconduct? Or did the nominal damage of one dollar mean that there was academic misconduct and it caused his own damage? These are the questions that were batted around the courtroom today.

 

We spent a full day hearing testimony from Churchill witnesses on why reinstatement should occur, then CU witnesses on why it should not. (CU’s motion for judgment as a matter of law based on quasi-judicial immunity will not be argued as the issue has been fully briefed on both sides and is simply a matter of law.)

 

Churchill took the morning and CU the afternoon. Churchill presented three witnesses: Emma Perez (by phone), currently chair of the CU Ethnic Studies Department; Tom Mayer, CU Sociology professor for 40 years; Margaret LeCompte, CU sociology professor; David Staub, recent CU graduate with degrees in history and ethnic studies; and Professor Churchill.

 

The witnesses were not sequestered and made these general points:

n Churchill returning is necessary to the ethnic studies department as he is their noted scholar, he teaches very popular classes that always fill up, and reinstatement will show that professors need not fear speaking their minds.

n The university will not be tainted by the academic misconduct allegations but will rather be enhanced by having someone of Churchill’s stature, especially in ethnic studies. His books have sold more than any other professor’s books.

n Churchill has always had collegial relations with faculty members, and there is no reason to think that attitude will not continue.

n Churchill is an excellent teacher and provokes students to think critically, which is the essence of a good university and much needed.

n Students are so eager to learn from Churchill that they organized having a 3-hour class weekly class in 2007 that he taught without being paid.

n The American Association of University Professors, both nationally and locally, are supporting reinstatement.

n Reason that only 10 professors wrote to Judge Naves urging reinstatement is that only a few tenured professors who clearly supported Churchill were asked to do so, deliberately excluding non-tenured professors who might have their careers jeopardized.

 

The CU cross-examination made or tried to make these points:

n Perez’s unequivocal support of Churchill means that she will not be able to do her job as department chair and objectively review his work.

n While 200 professors took out an ad supporting Churchill when this issue started years ago, only 10 signed a letter to Judge Naves urging reinstatement.

n No one at CU has retaliated against any of Churchill’s supporters.

n While you may not agree with their conclusions, the various academic committees do have the power and responsibility to assess academic misconduct.

n Churchill has continued to write, speak and teach since his termination, and students have been able to access his views despite him not being a teacher.

 

Professor Churchill’s testimony was—as ever—eloquent. He emphasized that he filed a lawsuit as “a matter of principle to preserve the concept of academic freedom, which is to say that political powers cannot silence professors because they disagree with their beliefs.” (all quotes approximate) “And to obtain justice, restitution, restoration to the position that jury found I was illegally removed from.” Professor Churchill reasserted his trial testimony that when asked if he wanted money, he said no.

 

Regarding the inference that he would not be collegial, he noted that throughout the investigation he was commended by the committees for his collegiality. And that he has no reason as a faculty member to interact with the Regents or the Chancellor, those most likely to have animosity towards him. And that all his previous performance reviews have been excellent. Question: If they do retaliate, what will you do? I will stand up for my rights.


In cross examination, Pat O’Rourke was more aggressive with Churchill than in trial. O’Rourke noted that while Churchill said that he didn’t ask the jury for money, he had no objection to his attorney’s comments regarding monetary awards that would be fair. And that Churchill doesn’t need to be reinstated to continue to publish and work on books and do various other things to promote his views.

 

CU’s witnesses were Dean Gleason, Dean of College of Arts and Sciences; Chancellor DiStefano; and Richard Jessor, CU professor of psychology since 1951, the oldest serving professor. Their testimony was essentially that (a) various faculty committees found that Churchill committed academic misconduct (which was not clearly denied by the jury) and (b) if someone who committed academic misconduct is allowed to teach at a university the school will be damaged because (c) the school’s reputation for academic integrity will be impinged and the most promising faculty and students will not want to be associated with it. And the fact that Professor Perez, head of the Ethnic Studies Department, does not believe Professor Churchill committed academic misconduct means that she will not review his work with the appropriate amount of scrutiny.

 

David Lane cross examined all witnesses in his classic provocative style. Turning to the argument that Churchill’s reputation for academic misconduct would discourage promising faculty and students, he got each witness to admit that the University had been determined by a jury to be violators of the First Amendment of the Constitution of the United States of America (yes, using the whole phrase). And wouldn’t the reputation as First Amendment Violators discourage promising (defined as possibly controversial) faculty from coming to the school? And who in the courtroom had been proved to be illegal retaliators? And could any of the witnesses name any professor who had promised or threaten to leave CU if Churchill was reinstated? (No.)

 

Both parties will submit findings by end of day tomorrow, and Judge Naves will issue a ruling early next week.

 

Friday
Jun052009

Churchill: The Replies to the Responses to the Motions

We have previously summarized the motions and responses filed in the Churchill v. CU case. Churchill has a motion for reinstatement that CU objects to on the basis, primarily, that litigation has irreparably damaged the relationship between the parties. CU has a motion for judgment as a matter of law (overriding the jury’s decision) arguing that quasi-judicial immunity protects the Regents from suit for their adjudicative decision to fire Churchill. Churchill’s objections are that quasi-judicial immunity only applies to individuals, not to entities and that CU waived its 11th Amendment immunity, which applies to state entities. Each side has now replied to the responses of the other side’s motion.

 

Churchill’s Reply re Motion to Reinstate:

· There is no case law to support CU’s assertion that when only nominal damages are awarded, the plaintiff is precluded from additionally seeking the equitable remedy of reinstatement.

· Equity requires courts to take remedial action to make the plaintiff whole from the defendant’s wrongdoing, in this case, to give Churchill back his job.

· “[A]cademic discourse involving controversial issues engenders strong passions among all parties, however because this is precisely what the market place of ideas envisions, it is therefore essential that this Court keep the market place open for business through reinstatement.”

· CU’s speculation about what would happen if Churchill returned does not justify legal findings.

· CU continues to be in denial about the fact that a jury found they had acted illegally and they lost the case. The court has an obligation to remedy this misconduct.

 

CU’s Reply re Motion for Quasi-Judicial Immunity:

  • Quasi-judicial immunity is not the same as 11th Amendment immunity, which applies only to the states themselves. Quasi-judicial immunity is a matter of state law and protects individuals from suit if they are performing a judicial function.
  • A pre-trial agreement between the parties allows CU to raise defenses on behalf of CU and the Board of Regents that would have been available to the Regents as individuals, opening the door to the defense of quasi-judicial immunity that would otherwise not be available to CU as an entity.
  • Quasi-judicial immunity applies to both the $1 nominal damage award and the request for reinstatement because the key statute in the case Churchill relies on, Pulliam v. Allen, 466 U.S. 522 (1984), was amended in 1996. The amendment requires prospective relief in Constitutional violation cases be granted only if “a declaratory decree was violated or declaratory relief was unavailable.” Since Churchill never claimed CU violated a declaratory decree, he cannot now claim that. Churchill would have had to ask a district court to establish that no further declaratory relief was available, and has not done so.
  • Quasi-judicial immunity exists because a) the type of proceeding the Regents had was investigative (examining evidence gathered by prior committees) and administrative (dismissal of employee); (b) elected officials (such as Governors acting as final reviewers of parole requests) can claim the immunity; (c) if freedom from political pressure was the requirement for judicial immunity, elected judges would be denied that immunity; (d) “quasi-judicial immunity protects all types of officials who perform judicial functions, not just appellate functions.”

 

The hearing for arguments on these motions is at 8:30 on July 1. The Replies are posted on the DU Corporate Governance site.

Sunday
May242009

Churchill Case: The Responses to Motions

Attorneys for CU and Churchill have filed responses to each other’s motions, which we will summarize briefly:

 

Plaintiff’s Response to Defendant’s Motion for Judgment as a Matter of Law:

  • Motion must be denied as quasi-judicial immunity only applies to individuals sued in their individual capacities and not governmental defendants. In the earlier procedure of this case, the parties agreed to exchange the University of Colorado as a corporate entity as defendants in place of the Regents individually and in their official capacities. In doing so, CU waived 11th Amendment immunity, the only immunity which would have applied.
  • Even if quasi-judicial immunity is applied, it only goes to the $1.00 damage award and not to the reinstatement sought by plaintiff.
  • Even if quasi-judicial immunity applied to entities, it would not apply in this case as the quasi-judicial entity would need to be truly independent and immune from political pressures in order to qualify, which the Regents were not (as per testimony).

 

Brief in Opposition to Motion for Reinstatement:

  • The jury’s verdict precludes equitable relief since a) Churchill did not ask the Court to set aside the jury’s verdict of only $1.00 in damages; and b) That even though the pleadings and other court documents did seek every measure of damages, the jury’s award of only $1.00 in damages indicates that the jury found that there was no damage from the violation of his constitutional rights.
  • If equitable relief is not precluded, then reinstatement is not the appropriate remedy because a) the litigation has irreparably damaged the relationship between the parties (citing in court and out of court statements by Churchill and Attorney Lane), and; b) reinstating Churchill will harm others in that Churchill will be in position to retaliate against faculty members who did not support him and will continue to make “bogus claims” that damage Native American studies.
  • If equitable relief is granted it should only be reasonable front pay because a) Churchill made little effort to mitigate his damage by getting another position; b) the average work life of public employees is 58 years, and Churchill is already 61; c) Churchill is already drawing PERA benefits of $68,409 annually.

 

Both responses are available in the Churchill section of the DU Corporate Governance site.

Monday
May042009

Churchill Trial: CU's Motion for Judgment as a Matter of Law

CU has filed a motion to dismiss the unlawful termination claim on the basis that the Board of Regents are a constitutionally created—and therefore governmental—body which was acting in its quasi-judicial capacity, and is therefore immune from lawsuit. This claim was previously preserved while going forward with the jury trial.

 

The motion asserts that the Board of Regents, created under Article VIII of the Colorado Constitution, occupies a “unique position in Colorado’s governmental structure.” Since the Regents have constitutional power to “enact laws for the government of the University,” their actions in doing so have the same immunity from personal claims provided to other governmental actors. Judicial immunity is provided to judges, prosecutors and grand jurors on the basis that when such officials perform functions necessary to the judicial system, quasi-judicial immunity creates a bar to liability. This immunity prevents someone receiving an adverse judgment from going after the judge or jury.

 

The motion further asserts that immunity is not a product of governmental position, but of functioning in judicial capacity. Citing several Colorado and Tenth Circuit cases involving school district and university teacher terminations, CU notes that “where an official applies ‘preexisting legal standards or policy considerations to present or past facts presented to the governmental body, then one can say with reasonable certainty that the governmental body is acting in a quasi-judicial capacity.’” CU applies these rulings to the facts of Prof Churchill’s termination, emphasizing that a) the likelihood of litigation against the Regents in the event of a decision to fire someone is just the sort of retaliation that immunity is designed to prevent, and b) that the Regents provided Prof Churchill with enough procedural protections and due process (through the many series of hearings and committees) to qualify for quasi-judicial immunity.

 

“Prof Churchill will undoubtedly claim that the safeguards [of due process] were insufficient because the jury returned a verdict in his favor, but the jury’s verdict is not the test by which a court measures judicial immunity. Were it otherwise, a quasi-judicial immunity would depend upon the outcome of the lawsuit, but the courts have been clear that the question is whether there are safeguards in the judicial framework designed to control unlawful conduct.”

 

Professor Churchill’s response must be filed within twenty days; we will report further at that time.

 

Primary materials for this case may be found at the DU Corporate Governance website.

Monday
May042009

Churchill Files Motion for Reinstatement of Employment

Ward Churchill’s attorneys filed their Motion for Reinstatement of Employment on May 1. The Motion lists six reasons why Churchill should be reinstated (quotations are taken from the Motion):

 

1. Reinstatement is the preferred remedy – “Reinstatement is the preferred remedy, unless the employer has demonstrated such hostility that there is little or no hope that a working relationship would be possible. In such rare and narrow circumstances, front pay is an appropriate remedy in lieu of reinstatement.”

 

2. Reinstating Churchill undoes the chilling effect to free speech caused by the unlawful termination – “Merely substituting front pay for reinstatement simply allows the University to expend taxpayer monies to buy its illegal result.”

 

3. Defendants’ possible irritation caused by Prof Churchill’s reinstatement is expected and is not a legitimate basis to deny reinstatement – “Defendants must conclusively establish (rather than speculatively assert) that Prof Churchill’s reinstatement would create far more than an expected amount of friction caused by reinstatement.” “Defendants’ burden is nearly impossible given that the Ethnic Studies Department is relatively isolated and independent, found on a large campus, with Prof Churchill’s departmental colleagues fully endorsing his return.”

 

4. Defendants cannot credibly argue that Prof Churchill’s reinstatement will cause undue hostility in the workplace when there has been virtually zero acrimony in workplace prior to the unlawful investigation and termination – “The finding [by the jury that the protected speech did not unduly interfere with the plaintiff’s employment or the operations of the public employer] collaterally estops the University from arguing (or this Court from holding) that Prof Churchill’s conduct has been unduly disruptive.”

 

5. The jury’s damage award supports reinstating Prof Churchill – “Prof Churchill at trial did not ask the jury to award him monetary damages. Prof Churchill only sought reinstatement…”

 

6. Defendants’ post-trial hostility towards Prof Churchill evidences ongoing discriminatory behavior – “Defendants’ strong disagreement with jury’s verdict appears to fuel resentment. This is their problem, though, and not a basis to deny Prof Churchill the remedy of reinstatement.”

 

The Motion includes exhibits from several groups in support of reinstatement: Letter to the Court Supported by Hundreds of Members of Academia; the Society of American Law Teachers; three members of the Ethnic Studies department, including Incoming Chair Elisa Facio; American Association of University Professor’s National Council Resolution. The Motion also includes an affidavit from Professor Churchill that he “does not harbor any animus or ill-will which would interfere with his continuing to teach at the University as he always has and always will: professionally and without disruption.”

 

The University has twenty days to file its reply; we will report further at that time.

 

Primary materials for this case are posted on the DU Corporate Governance website.

Sunday
Apr122009

Churchill v. CU: Front Pay in lieu of Reinstatement

In the prior post, we concluded that Churchill will likely be reinstated at CU, at which point CU might ask Churchill, how much do you want not to be reinstated? However, if Judge Naves finds "exceptional circumstances and is ultimately upheld," the question of front pay kicks in and is the subject of this post which answers the question: will Churchill be awarded $1,000,000 in front pay he has publicly stated he wants if not reinstated?

Before investigating the legal and practical issues associated with front pay for Churchill should Judge Naves finds "exceptional circumstances," it is important to note that Churchill and his legal team have both declared emphatically that reinstatement is their sole objective in the interest of justice and that if reinstatement is not granted, this issue would likely be appealed. This was reported in the Denver Post on 4/12/08 in an article from the Daily Camera entitled "All he wants is CU job back, Churchill says: The lightning-rod professor says he's ready to challenge any financial award offered."  It is very clear that Churchill and his legal team do not want CU, the public, and in particular, Judge Naves, to view Churchill's earlier public statement that should the court rule against reinstatement, Churchill would be satisfied if the front pay awarded amounted to $1,000,000.

Clearly, Churchill is in the better position to first be reinstated into his full professor tenured position at CU for two important reasons:  (1) reinstatement truly makes Churchill whole and gives him the remedy he earned by winning the jury trial on the merits; (2) Churchill can decide to accept the position or consider an offer by CU to buy out his contract/position which could be far in access of $1,000,000 depending upon how motivated CU is to avoid Churchill's return. 

In the prior post on reinstatement considerations that Judge Naves would likely consider under existing case law, not only is reinstatement the preferred remedy in this kind of legal action, but CU's assertion that Churchill should not be reinstated based upon the "exceptional circumstances" defense that Churchill was found through internal investigations to have engaged in reseach misconduct, ostensibly has no merit.  Under the rationale of the Squires case, the jury's holding that CU would not have terminated Churchill in the absence of the protected speech preempts the court from looking at the issue again for purposes of the appropriated remedy where reinstatement is involved.  To deny reinstatement would in essence vitiate the jury's finding and Churchill's win on the legal merits of his case.  Indeed, should Churchill not be reinstated, it would be a "Pyrrhic Victory" for Churchill as seen in the following analysis of front pay Judge Naves could award Churchill in lieu of reinstatement.

But just in case Judge Naves rules in favor of CU by not reinstating Churchill, then the following legal issues are involved with front pay (from the jury instructions by the Ninth Circuit on front pay):

1.  "Limit on Front Pay Award: Front pay is intended to be temporary in nature. The plaintiff has a duty to make reasonable efforts to obtain a new job of like kind, status, and pay. Thus, you must limit any award of front pay to compensate only for the period of time you find will be necessary for the plaintiff to obtain such a job if [he] [she] makes a reasonable effort. The defendant has the burden of proving by a preponderance of the evidence that a reduction should be made and the amount by which the award should be reduced."

It is likely that Churchill, at age 61, could argue that he is entitled to nine years of $110,000 (his compensation plus benefits before CU dismissed him for a total of $990,000) since most full professors commonly retire at age 70.  This might change given the severe reduction in faculty retirement accounts due to the economic downturn.  On his duty to make reasonable efforts to obtain a new job, Churchill testified that while he had a couple of inquiries from faculty members from other universities for placement, once university administrations got wind of the "feelers," the inquiries ended in each case.  Clearly, Churchill can successfully argue that it would be very difficult, despite his "reasonable efforts, to obtain a new job of like kind, status, and pay at another university."

2.  "Reduction to Present Cash Value: Any award of front pay must also be reduced to the present cash value of the award."

Since the $110,000 would be paid over nine years, a current lump sum payment should be reduced to the present cash value of the award.  Consequently, CU would not pay $990,000 ($110,000 over nine years), but $748,186 as a current lump sum and the present value of the award.  This assumes a 6% annual discount rate.

Finally, since Section 104 of the Internal Revenue Code would treat this lump sum payment as income, the majority of the lump sum would be taxed at a 35% marginal tax rate plus 5% for the state of Colorado.  Consequently, of the approximate $1,000,000 award of front pay would effectively be reduced to $448,912 calculated as follows:

Present Value of the Front Pay Lump Sum:   $748,186

Less 40% in income taxes                             -299,274                                     

Net Front Pay after taxes                               $448,912

CU would likely be pleased with this ultimate result.  

Potential Impact on the Award of Attorney Fees to Churchill:

Moreover, this "Pyrrhic Victory" for Churchill could bring into question the full award of Churchill's attorney fees under the Supreme Court's rationale in Farrer v. Hobby, 506 U.S. 103 (1992) in which the court held that the plaintiff was not entitled to an award for attorney fees under 42 USC 1998 dealing with constitutional claims, even though the plaintiff was the prevailing party, since he was awarded de minimus damages.  The Supreme Court reasoned that the resulting "Pyrrhic victory" goes to the reasonableness of the attorney fees.  Subsequent courts applying this Supreme Court rationale scrutinize and may limit an award of attorney fees when the amount awarded is less than the attorney fees. 

In a prior post on the award of attorney fees, it was estimated that Churchill's fees could easily exceed $1,000,000 given his three attorney legal team and numerous expert witnesses.  If the front pay is $748,186 or cut in half if the court awards four to five years of front pay rather than nine years (or even further reduced under a duty to mitigate theory), the attorney fees of over $1,000,000 could trigger a court reduction for attorney fees under the Farrer v. Hobby analysis.  In short, Churchill needs to vigorously defend his assertion that reinstatement is the preferred remedy for him.

Saturday
Apr112009

Churchill v. CU: Should Churchill be Reinstated at CU? 

Many issues remain in the Churchill trial and Judge Naves gave the parties 30 days to file briefs on these remaining issues which appear to be: (1) should Churchill be reinstated to his position as a tenured faculty member at CU; (2) if not, should the court grant “front pay” for compensation Churchill would have earned had he continued to work for CU, and (3) is Churchill entitled to court costs and award of attorney fees and, if so, how much.

This post focuses on the factors that Judge Naves will use to determine if Churchill should be reinstated to his position as a tenured faculty member at CU.  The next post covers the issue if he does not reinstate Churchill--should he award “front pay” to Churchill and how much? 

Both Churchill and CU have been very public in their position on reinstatement. In the Denver Post article “Churchill wants $1 million if he doesn't get CU job back,” Churchill has stated he wants front pay of $1,000,000 if Judge Naves rules he cannot get his job back. Last Thursday, the Denver Post’s article “CU Vows to Challenge Churchill Reinstatement” reported that CU will “vigorously challenge” his reinstatement and stated as follows:

Ken McConnellogue, spokesman for the CU system, said the university is relying on its findings that Churchill engaged in repeated and flagrant academic misconduct to support its stance that having the controversial former professor back on campus is a "bad idea."

Undoubtedly, Churchill will press for reinstatement since it is the preferred remedy for future wages in his situation. And undoubtedly, CU will press Judge Naves to find “exceptional circumstances” are present to not reinstate Churchill and ask Judge Naves to award reasonable “front pay.” On balance, CU has “the tougher hill to climb” as explained more fully in this post.

Reinstatement as the Preferred Remedy

The key case on this issue is Squires v. Middle Smithfield Township, 54 F.3d 168 (3rd Cir. 1994) which also addressed a first amendment judgment under a similar 42 USC 1983 claim. The court first cited with approval the Eleventh Circuit in Allen v. Autauga County Board of Education, 685 F.2d 1302, 1306 (11th Cir. 1982):

When a person loses his job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored. . . . We also note that reinstatement is an effective deterrent in preventing employer retaliation against employees who exercise their constitutional rights. If an employer's best efforts to remove an employee for unconstitutional reasons are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights.

Then, after the Third Circuit in Squires cited numerous cases that the preferred remedy for this kind of case is reinstatement, it concluded as follows:

In sum, we think the First Circuit had it right in its well-reasoned en banc opinion in Rosario-Torres:

Whenever an ex-employee sues alleging wrongful dismissal by a government agency, job restoration may be a material aspect of meaningful relief. Yet in the real world, reinstatement in unlawful-discharge cases often will place some burden on the agency: there will likely be tension (or even hostility) between the parties when forcibly reunited; employees who have assumed duties previously performed by the fired worker will have to be displaced when he or she returns; and, as a result, the public's business may be conducted somewhat less efficaciously. Be that as it may, we agree with those courts which have ruled that such routinely "incidental" burdens, in their accustomed manifestations, are foreseeable sequelae of defendant's wrongdoing, and usually insufficient, without more, to tip the scales against reinstatement when first amendment rights are at stake in a section 1983 action.

We do not perceive such a positioning of the weighbeam as a departure from general equitable principles. It is, rather, merely a way of setting a starting-point for the district court's consideration. Once this is understood, the "presumption" of reinstatement becomes just the dress of thought, a shorthand manner of saying that equitable considerations different in kind or degree from those regularly accompanying reinstatement must be present if reinstatement is to be withheld from the victim of a first amendment infraction. 889 F.2d at 322-23.  (Emphasis added).

CU's Defense to Reinstatement for Exceptional Circumstances

The 3rd Circuit in Squires cited several cases that “the court should deny reinstatement in a first amendment case on the basis of equity only in exceptional circumstances.” Consequently, the issue is simple:

Does CU’s claim that twenty scholars working in multiple investigation committees found that Churchill had engaged in “repeated and flagrant academic misconduct,” and thus, “having the controversial former professor back on campus is a ‘bad idea’” constitute exceptional circumstances warranting Judge Naves to reject reinstatement in favor of money damages in the form of “front pay.”

Again the Squires case is informative since it was reviewing the judge’s decision not to grant reinstatement giving, among others, these two reasons: (1) "the evidence at trial did not overwhelmingly support Squires' claim of constitutional deprivation"; (2) "there were incidents of poor performance by plaintiff." On the first reason, the Third Circuit found that the district court's assessment that:

the evidence "did not overwhelmingly support Squires' claim of constitutional deprivation" -- is an impermissible factor for the district court to consider.  Once the jury has found in favor of plaintiff on liability, the existence of a constitutional deprivation is an established fact which may not be re-examined in the district court's subsequent determinations -- including determinations of appropriate equitable remedies. (Emphasis added).

This rationale for finding this reason impermissible (namely, the jury's decision preempts the equitable remedy consideration) also applies to the second factor where the court reasoned as follows:

The second factor mentioned by the district court was "incidents of poor performance by plaintiff." Under the Mount Healthy framework applicable to First Amendment unconstitutional discharge cases arising under § 1983, a finding of liability against the employer requires the inference that, absent the unconstitutional conduct, the adverse employment action would not have occurred. Denying reinstatement merely upon a showing of run-of-the-mill incidents of sub-par performance would substantially undercut the goal of providing make-whole relief. Thus, we do not find that such a showing constitutes a special circumstance militating against reinstatement. (Emphasis Added).

The Third Circuit’s reference to “Mount Healthy framework” was also adopted by Judge Naves in the jury instructions:

Question 1: When it terminated Professor Churchill’s employment, did a majority of the Board of Regents of the University of Colorado use Plaintiff’s protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment? (If “Yes, go to next question...”

Question 2: Have the Defendants shown by a preponderance of the evidence that the Plaintiff would have been dismissed for other reasons even in the absence of the protected speech activity.”

The jury decided specifically that CU did not fire Churchill for the permissible reason of research misconduct, but for his protected speech in the 9/11 Essay. Thus, under the Squires case, the jury has already decided the issue relating to research misconduct constituting grounds for dismissal. And ostensibly, Judge Naves cannot reexamine this issue, as CU will certainly request.

If CU grounds for “exceptional circumstances” warranting no reinstatement are simply the findings of the 20 scholars on an issue already decided by the jury, Judge Naves will have a very difficult decision given the Squires case.  This is especially true in light of the fact that the members of Investigative Committee and the Privilege & Tenure Committee decided by a majority vote not to terminate Churchill.  Moreover, the Privilege & Tenure Committee’s specific charge was to make recommendations on dismissal and three out of five voted for suspension rather than dismissal. This particular vote was the basis for Regent Cindy Carlisle’s lone vote not to dismiss Churchill.

Standard of Review in finding Exceptional Circumstances

Finally, case law indicates while Judge Naves’ decision is within his discretion, he needs to articulate the reasons if he departs from the preferred remedy of reinstatement. See Franks v. Bowman Transp. Co., 424 U.S. 747, 771. Again the Third Circuit decision in Squires provides the following guidance:

In reviewing an order denying reinstatement, we do not substitute our judgment for that of the district court. We do, however, have an obligation to examine whether the equitable factors considered by the district court and the weight given to those factors are appropriate in light of the purposes underlying the statutory cause of action. As we stated in Gurmankin v. Costanzo, 626 F.2d 1115 (3d Cir. 1980), cert. denied, 450 U.S. 923, 67 L. Ed. 2d 352, 101 S. Ct. 1375 (1981):

Meaningful appellate review of the exercise of discretion requires consideration of the basis on which the trial court acted. If the factors considered do not accord with those required by the policy underlying the substantive right or if the weight given to those factors is not consistent with that necessary to effectuate that policy, then the reviewing tribunal has an obligation to require the exercise of discretion in accordance with "what is right and equitable under the circumstances and the law."

Conclusion

Based upon the foregoing, Churchill will likely be reinstated at CU, at which point CU might ask Churchill, how much do you want not to be reinstated? However, if Judge Naves finds exceptional circumstances and is ultimately upheld, the question of front pay kicks in and is the subject of the next post answering the question: will Churchill be awarded $1,000,000 in front pay he has publicly stated he wants if not reinstated.

 

 

Tuesday
Apr072009

Churchill's Legal Fees, Expert Witness Fees and Costs

 

Many issues remain in the Churchill trial and Judge Naves gave the parties 30 days to file briefs on these remaining issues which appear to be: (1) should Churchill be reinstated to his position as a tenured faculty member at CU; (2) if not, should the court grant “front pay” for compensation Churchill would have earned had he continued to work for CU, and (3) is Churchill entitled to court costs and award of attorney fees and, if so, how much. This post focuses on the award of attorney fees and costs, while the next post focuses on the equitable remedy of reinstatement versus front pay for future lost wages. The final post in this series dealing with the damages and equitable relief Churchill might be entitled to addresses the evidence, or lack thereof, on the $1 damages awarded by the jury.

In his complaint, Churchill demanded “judgment against Defendants, and relief including:

A. Damages in an amount to be proven at trial;

B. Prejudgment and postjudgment interest;

C. Attorneys’ fees pursuant to Colorado Law and § 42 U.S.C. 1988;

D. Costs; and

E. Such other and further relief as this court deems just and proper.”

In item A, the damages awarded up to the time of the trial and “proven at trial” were $1 which ostensibly included Churchill’s economic damages (back pay, loss of reputation) and noneconomic damages (pain and suffering, emotional distress). It was unclear in the jurors’ mind whether they should award damages for the legal fees Churchill sustained. See Denver Post article entitled “Churchill $1 Award Result of One Juror.”

However, Churchill can now make the claim that he is entitled to an award of attorney fees and costs in items C and D respectively, as well as “further relief as this court deems just and proper” listed under item E that relates to Churchill’s desire to be reinstated by the court to his tenured job at CU.

Attorneys’ Fees:

Item C requests relief for attorney’s fees pursuant to Colorado Law and § 42 U.S.C. 1988. The prevailing law is that each party, regardless which is the prevailing party, pays for their respective attorney fees. However, the state of Colorado and Congress has chosen to modify this rule in certain circumstances. Not applicable to this case, Colorado law in C.R.S. § 13-17-102 provides for an award of attorney fees when the suit or defense "lacked substantial justification” meaning “substantially frivolous, substantially groundless, or substantially vexatious.” Commonly known as “The Civil Rights Attorney's Fees Awards Act of 1976,” Congress also has modified the rule by providing, for public policy reasons, to allow an award of attorney fees and expert witness fees for prevailing plaintiffs suing for vindication of their civil rights.

One immediate issue is whether the $1 award for damages constitutes a “Pyrrhic Victory” and thus Churchill would not be considered the “prevailing party” under 42 U.S.C. § 1988. The United States Supreme Court in 1992 held that the plaintiff was not entitled to an award for attorney fees under 42 USC 1998, even though he was the prevailing party (since the holding altered the legal relationship between the parties) because he was awarded de minimus damages representing a Pyrrhic victory which goes to the reasonableness of the attorney fees. In Farrer v. Hobby, 506 U.S. 103 (1992), the plaintiff sought 17 million dollars in damages and received no money damages, no declaratory relief, and no injunctive relief, but plaintiffs did secure a jury finding that defendant violated plaintiffs' civil rights and nominal award of $ 1.

This case does not appear to be a hurdle for Churchill to recover reasonable attorney fees since his victory means that he has can ask for his job back, or front pay with either constituting substantial relief justifying the award of the attorney fees. In the Denver Post article, “Churchill wants $1 million if he doesn't get CU job back,” Churchill has stated he wants front pay of $1,000,000 if cannot get his job back.

While Churchill will be entitled to reasonable attorney fees and expert witness fees, there are a few hurdles left. At least Churchill avoided an allocation problem with the fees since his complaint was amended to drop alternative claims in contract that would not have been entitled to an award of attorney fees. Consequently, all the legal fees in pursuing Churchill's 1st amendment claim (his entire case), could be awarded in the discretion of Judge Naves.  However, Judge Naves will scrutinize the request for attorney fees where multiple attorneys are involved for redundancy. Since Churchill had three attorneys attending the trial, Churchill’s attorneys may be asked to justify this redundancy.

Another hurdle is whether the pre-litigation costs can be awarded and in particular, the legal fees in representing Churchill during the Investigative Committee’s investigation and the Privilege & Tenure Committee investigation. Generally, prelitigation legal fees are scrutinized to ensure that they are related to the constitutional claim. While Churchill must have incurred substantial legal fees related to CU’s internal investigations, it would be difficult to justify these legal fees which could eventually ripen into several legal claims, not just the constitutional claim.

Court Costs:

Rule 54 “Judgment and Costs” under Colorado Rules of Civil Procedure provides:

Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.

Consequently, unless not permitted by state law regarding costs against the state, Churchill is entitled to his costs such as : (1) discovery deposition fees; (2) copies of discovery depositions; (3) copies of medical records for injuries not claimed at trial; (4) certain expert fees; (5) fees associated with photographs; and (6) non-itemized copy fees. See Nguyen v. Reg'l Transp. Dist., 987 P.2d 933 (Colo. App. 1999).

Conclusion:

With an award of attorney fees and costs, CU may end up paying over $1,000,000 for the cost of the litigation in addition to the $500,000 CU’s attorney Patrick O’Rouke has publicly stated is the cost of CU’s defense.

 

Monday
Apr062009

Churchill v. University of Colorado:  Referrals

Much of the traffic on a Blog comes from those who are aware of the URL and go to the Blog directly.  Having a name like The Race to the Bottom helps on that score.

On the other hand, blogs often receive what is known in the vernacular as "referrals."  These are instances when another blog mentions a post and provides a link.   As a result of the link, traffic flows to the blog.   During the Churchill trial, The Race to the Bottom received considerable traffic from other blogs.  We thought regular readers would like to see which blogs produced the most traffic.  The numbers and the names of the blogs are below.

 

3,001

 

littlegreenfootballs.com (19 sources)

1

 

http://littlegreenfootballs.com/article/33019

—Links To Ward Churchill (Journal)

3

 

http://littlegreenfootballs.com/article/33019/comments/

—Links To Ward Churchill (Journal)

121

 

http://littlegreenfootballs.com/article/33019_Covering_the_Churchill_Trial

—Links To Ward Churchill (Journal)

38

 

http://littlegreenfootballs.com/article/33019_Covering_the_Churchill_Trial/commen...

—Links To Ward Churchill (Journal)

4

 

http://littlegreenfootballs.com/day/2009-03-10

—Links To Ward Churchill (Journal)

2,403

 

http://littlegreenfootballs.com/weblog/

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog//

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=48da94daaf7c28281e8ec40d4495a06...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=57724d4bada4eb1d6a2cc5f685595b5...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=68008d4c540599561c3bf5e3fa643a4...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=72035ee26804b7e616eac7e87ad5f21...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=a489de2436d84ad6b53379118dfaec6...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=a7cb58a5cdc9a56e9283145654bbc64...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=abb5fd0982f786315b228cd2b5b693d...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=adac84774773121eba29851964bcd38...

—Links To Ward Churchill (Journal)

1

 

http://littlegreenfootballs.com/weblog/?PHPSESSID=dc8321cf1950527bfe0385831da32ce...

—Links To Ward Churchill (Journal)

2

 

http://littlegreenfootballs.com/weblog/?source=cmailer

—Links To Ward Churchill (Journal)

418

 

http://littlegreenfootballs.com/weblog/weblog.php

—Links To Ward Churchill (Journal)

949

 

www.wardchurchill.net (2 sources)

909

 

http://www.wardchurchill.net/

—Links To Ward Churchill (Journal)

40

 

http://www.wardchurchill.net/index.html

—Links To Ward Churchill (Journal)

781

 

www.pirateballerina.com (15 sources)

312

 

http://www.pirateballerina.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

6

 

http://www.pirateballerina.com/archives/archive_2009-m03.php

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

3

 

http://www.pirateballerina.com/blog/entry.php?id=894

—Links To Ward Churchill - Churchill v. University of Colorado, Thursday Morning (Journal Entry)

2

 

http://www.pirateballerina.com/blog/entry.php?id=904

—Links To Ward Churchill - Churchill v. University of Colorado: Monday, March 23, 2009 – Morning Session (Journal Entry)

2

 

http://www.pirateballerina.com/blog/entry.php?id=908

—Links To Ward Churchill - Churchill March 25 Morning: Churchill's Spouse Takes the Stand (Journal Entry)

3

 

http://www.pirateballerina.com/blog/entry.php?id=910

—Links To Ward Churchill - Friday the 27th; Morning Session: Lawyer v. Lawyer (Journal Entry)

3

 

http://www.pirateballerina.com/blog/entry.php?id=912

—Links To Ward Churchill - Friday the 27th; Morning Session: Lawyer v. Lawyer (Journal Entry)

1

 

http://www.pirateballerina.com/blog/entry.php?id=915

—Links To Ward Churchill - The Importance of Professor's Morley Testimony to CU and Churchill (Journal Entry)

1

 

http://www.pirateballerina.com/blog/entry.php?id=915&message=Your+comment+has+be...

—Links To Ward Churchill - The Importance of Professor's Morley Testimony to CU and Churchill (Journal Entry)

6

 

http://www.pirateballerina.com/blog/entry.php?id=916

—Links To Ward Churchill - Churchill Trial, final afternoon: The Smoking Gun (Journal Entry)

5

 

http://www.pirateballerina.com/blog/entry.php?id=917

—Links To Ward Churchill - Churchill Trial: Closing Arguments (Journal Entry)

17

 

http://www.pirateballerina.com/blog/entry.php?id=920

—Links To Ward Churchill - Churchill v. University of Colorado: The Verdict (Journal Entry)

5

 

http://www.pirateballerina.com/blog/entry.php?id=921

—Links To Ward Churchill - Churchill Wins: What it Was Like in the Courtroom (Journal Entry)

390

 

http://www.pirateballerina.com/index.php

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

25

 

http://www.pirateballerina.com/index.php/

—Links To Ward Churchill - Churchill v. University of Colorado: Day 1 (The Times They Are A Changing) (Journal Entry)

765

 

leiterlawschool.typepad.com (5 sources)

301

 

http://leiterlawschool.typepad.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

32

 

http://leiterlawschool.typepad.com/leiter/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

276

 

http://leiterlawschool.typepad.com/leiter/2009/03/denver-students-cover-ward-churchi...

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

155

 

http://leiterlawschool.typepad.com/leiter/2009/04/jury-finds-that-ward-churchill-was...

—Links To Ward Churchill (Journal)

1

 

http://leiterlawschool.typepad.com/leiter/of_academic_interest/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

761

 

volokh.com (6 sources)

531

 

http://volokh.com/

—Links To Ward Churchill (Journal)

1

 

http://volokh.com/?bloggers=jim,orin,tyler,todd,eugene

—Links To Ward Churchill (Journal)

1

 

http://volokh.com/?exclude=davidb

—Links To Ward Churchill (Journal)

1

 

http://volokh.com/?exclude=davidb,davek,jim,todd

—Links To Ward Churchill (Journal)

91

 

http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml

—Links To Ward Churchill (Journal)

136

 

http://volokh.com/posts/1236729529.shtml

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

348

 

wardchurchilltrial.wordpress.com (20 sources)

296

 

http://wardchurchilltrial.wordpress.com/

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/2009/03/

—Links To Ward Churchill - Churchill March 25 Morning: Churchill's Spouse Takes the Stand (Journal Entry)

6

 

http://wardchurchilltrial.wordpress.com/2009/03/11/churchill-blogs/

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/2009/03/12/opposite-world/

—Links To Ward Churchill (Journal)

4

 

http://wardchurchilltrial.wordpress.com/2009/03/13/adult-supervision-2/

—Links To Ward Churchill - Churchill v. University of Colorado: Thursday, March 12 - Afternoon (Journal Entry)

1

 

http://wardchurchilltrial.wordpress.com/2009/03/22/skillfully-and-dramatically/

—Links To Ward Churchill - Churchill v. University of Colorado: Friday, March 20 – Afternoon (Journal Entry)

2

 

http://wardchurchilltrial.wordpress.com/2009/03/27/sour-grapes/

—Links To Ward Churchill - Churchill March 26th Morning: The CU Law School Connection (Journal Entry)

1

 

http://wardchurchilltrial.wordpress.com/2009/03/31/wagging-the-dog/

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/2009/04/01/no-posting-today-unless-theres-a-decis...

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/2009/04/03/caplis-and-silverman-get-cross-examine...

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/faq/

—Links To Ward Churchill (Journal)

16

 

http://wardchurchilltrial.wordpress.com/page/2/

—Links To Ward Churchill (Journal)

3

 

http://wardchurchilltrial.wordpress.com/page/3/

—Links To Ward Churchill (Journal)

2

 

http://wardchurchilltrial.wordpress.com/page/4/

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/wp-admin/index.php?page=stats&day=2009-03-11

—Links To Ward Churchill (Journal)

2

 

http://wardchurchilltrial.wordpress.com/wp-admin/index.php?page=stats&day=2009-03-12

—Links To Ward Churchill (Journal)

1

 

http://wardchurchilltrial.wordpress.com/wp-admin/index.php?page=stats&day=2009-03-13

—Links To Ward Churchill (Journal)

4

 

http://wardchurchilltrial.wordpress.com/wp-admin/index.php?page=stats&day=2009-03-19

—Links To Ward Churchill - Churchill v. University of Colorado: Weak Coverage but Substantial Interest (Journal Entry)

2

 

http://wardchurchilltrial.wordpress.com/wp-admin/index.php?page=stats&day=2009-03-20

—Links To Ward Churchill (Journal)

2

 

http://wardchurchilltrial.wordpress.com/wp-admin/index.php?page=stats&day=2009-03-26

—Links To Ward Churchill - Churchill v. University of Colorado: Churchill’s Testimony and the Jury’s Reaction (Bad News for the Defense) (Journal Entry)

335

 

wardchurchill.net (2 sources)

325

 

http://wardchurchill.net/

—Links To Ward Churchill (Journal)

10

 

http://wardchurchill.net/index.html

—Links To Ward Churchill (Journal)

335

 

lawprofessors.typepad.com (15 sources)

11

 

http://lawprofessors.typepad.com/bankruptcyprof_blog/

—Links To Home (Journal)

1

 

http://lawprofessors.typepad.com/bankruptcyprof_blog/2009/03/law-review-symposium-...

—Links To Home (Journal)

19

 

http://lawprofessors.typepad.com/laborprof_blog/

—Links To Ward Churchill (Journal)

171

 

http://lawprofessors.typepad.com/laborprof_blog/2009/03/blog-coverage-o.html

—Links To Ward Churchill (Journal)

1

 

http://lawprofessors.typepad.com/laborprof_blog/public_employment_law/

—Links To Home (Journal)

71

 

http://lawprofessors.typepad.com/legalwriting/

—Links To Ward Churchill (Journal)

13

 

http://lawprofessors.typepad.com/legalwriting/2009/03/the-ward-church.html

—Links To Ward Churchill (Journal)

2

 

http://lawprofessors.typepad.com/legalwriting/2009/04/ward-churchill-case-goes-to-...

—Links To Ward Churchill (Journal)

5

 

http://lawprofessors.typepad.com/legalwriting/2009/04/ward-churchill-wins-jury-awa...

—Links To Ward Churchill (Journal)

6

 

http://lawprofessors.typepad.com/mergers/

—Links To Home (Journal)

7

 

http://lawprofessors.typepad.com/nativeamerican/

—Links To Home (Journal)

14

 

http://lawprofessors.typepad.com/nativeamerican/2009/03/ward-churchill.html

—Links To Home (Journal)

11

 

http://lawprofessors.typepad.com/whitecollarcrime_blog/

—Links To Home (Journal)

2

 

http://lawprofessors.typepad.com/whitecollarcrime_blog/2009/01/charges-against.htm...

—Links To Home - Stockman (et al) Indictment Dismissed (Journal Entry)

1

 

http://lawprofessors.typepad.com/whitecollarcrime_blog/2009/03/madoff-accountant-i...

—Links To Home (Journal)

301

 

www.abovethelaw.com (1 source)

301

 

http://www.abovethelaw.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

283

 

blogs.westword.com (6 sources)

9

 

http://blogs.westword.com/latestword/

—Links To Home (Journal)

44

 

http://blogs.westword.com/latestword/2009/03/at_long_last_the_star_of_the_w...

—Links To Ward Churchill - Churchill v. University of Colorado: The Man Himself (Journal Entry)

23

 

http://blogs.westword.com/latestword/2009/03/khows_dan_caplis_and_craig_sil...

—Links To Ward Churchill (Journal)

51

 

http://blogs.westword.com/latestword/2009/03/take_that_caplis_and_silverman...

—Links To Ward Churchill - Churchill v. University of Colorado--March 18, Afternoon Session (Journal Entry)

155

 

http://blogs.westword.com/latestword/2009/03/ward_churchills_second_day_on....

—Links To Home (Journal)

1

 

http://blogs.westword.com/latestword/index.php?page=3

—Links To Home (Journal)

273

 

en.wikipedia.org (9 sources)

2

 

http://en.wikipedia.org/wiki/Hank_Paulson

—Links To Executive Comp - Henry Paulson and Government Service: The Ultimate Tax Shelter (Journal Entry)

1

 

http://en.wikipedia.org/wiki/Hank_paulson

—Links To Executive Comp - Henry Paulson and Government Service: The Ultimate Tax Shelter (Journal Entry)

1

 

http://en.wikipedia.org/wiki/Henry_M._Paulson

—Links To Executive Comp - Henry Paulson and Government Service: The Ultimate Tax Shelter (Journal Entry)

49

 

http://en.wikipedia.org/wiki/Henry_Paulson

—Links To Executive Comp - Henry Paulson and Government Service: The Ultimate Tax Shelter (Journal Entry)

1

 

http://en.wikipedia.org/wiki/Henry_Paulson#cite_note-27

—Links To Executive Comp - Henry Paulson and Government Service: The Ultimate Tax Shelter (Journal Entry)

9

 

http://en.wikipedia.org/wiki/Talk:Ward_Churchill

—Links To Ward Churchill (Journal)

202

 

http://en.wikipedia.org/wiki/Ward_Churchill

—Links To Ward Churchill (Journal)

1

 

http://en.wikipedia.org/wiki/Ward_Churchill#Ethnic_background

—Links To Ward Churchill (Journal)

7

 

http://en.wikipedia.org/wiki/Ward_churchhill

—Links To Ward Churchill (Journal)

253

 

www.thefacultylounge.org (5 sources)

78

 

http://www.thefacultylounge.org/

—Links To Ward Churchill - Excitement on the Fifth Morning (March 13): Move for Mistrial (Journal Entry)

170

 

http://www.thefacultylounge.org/2009/03/ward-churchill-trial-blog.html

—Links To Ward Churchill (Journal)

1

 

http://www.thefacultylounge.org/academia/

—Links To Ward Churchill - Excitement on the Fifth Morning (March 13): Move for Mistrial (Journal Entry)

3

 

http://www.thefacultylounge.org/page/2/

—Links To Ward Churchill - Excitement on the Fifth Morning (March 13): Move for Mistrial (Journal Entry)

1

 

http://www.thefacultylounge.org/page/3/

—Links To Ward Churchill - Excitement on the Fifth Morning (March 13): Move for Mistrial (Journal Entry)

226

 

abovethelaw.com (4 sources)

195

 

http://abovethelaw.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

26

 

http://abovethelaw.com/2009/03/06/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

4

 

http://abovethelaw.com/2009/03/non-sequiturs_030609.php

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

1

 

http://abovethelaw.com/2009/03/non-sequiturs_030609.php?show=comments

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

209

 

overlawyered.com (5 sources)

189

 

http://overlawyered.com/

—Links To Ward Churchill (Journal)

13

 

http://overlawyered.com/2009/03/march-17-roundup/

—Links To Ward Churchill (Journal)

1

 

http://overlawyered.com/author/walter-olson/

—Links To Ward Churchill (Journal)

5

 

http://overlawyered.com/page/2/

—Links To Ward Churchill (Journal)

1

 

http://overlawyered.com/page/3/

—Links To Ward Churchill (Journal)

203

 

www.volokh.com (3 sources)

192

 

http://www.volokh.com/

—Links To Ward Churchill (Journal)

6

 

http://www.volokh.com/archives/archive_2009_03_08-2009_03_14.shtml

—Links To Ward Churchill (Journal)

5

 

http://www.volokh.com/posts/1236729529.shtml

—Links To Ward Churchill (Journal)

165

 

cbs4denver.com (17 sources)

25

 

http://cbs4denver.com/

—Links To Ward Churchill (Journal)

5

 

http://cbs4denver.com/local

—Links To Ward Churchill (Journal)

56

 

http://cbs4denver.com/local/churchill.colorado.trial.2.955182.html

—Links To Ward Churchill (Journal)

2

 

http://cbs4denver.com/local/churchill.colorado.trial.2.960478.html

—Links To Ward Churchill (Journal)

5

 

http://cbs4denver.com/local/churchill.colorado.trial.2.961764.html

—Links To Ward Churchill (Journal)

11

 

http://cbs4denver.com/local/churchill.colorado.trial.2.965723.html

—Links To Ward Churchill (Journal)

1

 

http://cbs4denver.com/local/churchill.colorado.trial.2.966081.html

—Links To Ward Churchill (Journal)

9

 

http://cbs4denver.com/local/churchill.colorado.trial.2.966627.html

—Links To Ward Churchill (Journal)

1

 

http://cbs4denver.com/local/churchill.colorado.trial.2.966627.html?flv=...

—Links To Ward Churchill (Journal)

4

 

http://cbs4denver.com/local/churchill.colorado.trial.2.967820.html

—Links To Ward Churchill (Journal)

8

 

http://cbs4denver.com/local/churchill.colorado.trial.2.972479.html

—Links To Ward Churchill (Journal)

5

 

http://cbs4denver.com/local/churchill.colorado.trial.2.973079.html

—Links To Ward Churchill (Journal)

2

 

http://cbs4denver.com/local/churchill.colorado.trial.2.973572.html

—Links To Ward Churchill (Journal)

15

 

http://cbs4denver.com/local/churchill.owens.colorado.2.956824.html

—Links To Ward Churchill (Journal)

1

 

http://cbs4denver.com/local/churchill.owens.colorado.2.959470.html

—Links To Ward Churchill (Journal)

14

 

http://cbs4denver.com/local/verdict.churchill.colorado.2.974641.html

—Links To Ward Churchill (Journal)

1

 

http://cbs4denver.com/seenon/verdict.churchill.colorado.2.975998.html

—Links To Ward Churchill (Journal)

152

 

lsolum.typepad.com (3 sources)

8

 

http://lsolum.typepad.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

64

 

http://lsolum.typepad.com/legaltheory/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

80

 

http://lsolum.typepad.com/legaltheory/2009/03/churchill-trial-blogging.html

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

130

 

openanthropology.wordpress.com (12 sources)

34

 

http://openanthropology.wordpress.com/

—Links To Ward Churchill - Churchill v. University of Colorado, Thursday Morning (Journal Entry)

43

 

http://openanthropology.wordpress.com/2009/03/11/news-from-ward-churchills-court-case-a...

—Links To Ward Churchill (Journal)

8

 

http://openanthropology.wordpress.com/2009/03/13/news-from-day-4-of-ward-churchills-law...

—Links To Ward Churchill - Churchill v. University of Colorado: Thursday, March 12 - Afternoon (Journal Entry)

5

 

http://openanthropology.wordpress.com/2009/03/19/news-from-days-7-8-of-ward-churchills-...

—Links To Ward Churchill - Churchill v. University of Colorado--March 18, Afternoon Session (Journal Entry)

4

 

http://openanthropology.wordpress.com/2009/03/21/news-from-days-9-10-of-ward-churchills...

—Links To Ward Churchill - Churchill v. University of Colorado: Morning, March 19th (Journal Entry)

8

 

http://openanthropology.wordpress.com/2009/03/24/ward-churchill-testifies-news-from-day...

—Links To Ward Churchill - Churchill v. University of Colorado: The Man Himself (Journal Entry)

1

 

http://openanthropology.wordpress.com/2009/03/26/ward-churchill-rests-his-case-news-fro...

—Links To Ward Churchill - Churchill v. University of Colorado: Churchill’s Testimony and the Jury’s Reaction (Bad News for the Defense) (Journal Entry)

9

 

http://openanthropology.wordpress.com/2009/03/28/the-next-two-posts-about-ward-churchil...

—Links To Ward Churchill (Journal)

12

 

http://openanthropology.wordpress.com/2009/04/02/ward-churchills-case-is-now-in-the-han...

—Links To Ward Churchill - Churchill v. CU: Who Wins and Why--Closing Arguments and Jury Instructions (Journal Entry)

1

 

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—Links To (Login Prompt)

1

 

http://openanthropology.wordpress.com/wp-admin/post.php?action=edit&post=4850

—Links To Ward Churchill - Churchill v. University of Colorado: Day One (Journal Entry)

4

 

http://openanthropology.wordpress.com/wp-admin/post.php?action=edit&post=4905&message=7

—Links To Ward Churchill - Churchill v. Univesity of Colorado: Juror Questions (Journal Entry)

120

 

pirateballerina.com (7 sources)

107

 

http://pirateballerina.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

1

 

http://pirateballerina.com/archives/archive_2009-m03.php

—Links To Ward Churchill - Churchill Trial, March 19th Afternoon: Laughing Together (Journal Entry)

1

 

http://pirateballerina.com/blog/entry.php?id=915

—Links To Ward Churchill - Churchill trial, March 30 a.m.: Yawn (Journal Entry)

5

 

http://pirateballerina.com/blog/entry.php?id=916

—Links To Ward Churchill (Journal)

1

 

http://pirateballerina.com/blog/entry.php?id=917

—Links To Ward Churchill - Churchill v. University of Colorado: A Prognostication (Journal Entry)

4

 

http://pirateballerina.com/blog/entry.php?id=920

—Links To Ward Churchill - Churchill v. University of Colorado: The Verdict (Journal Entry)

1

 

http://pirateballerina.com/index.php

—Links To Ward Churchill - Churchill v. University of Colorado: Churchill’s Testimony and the Jury’s Reaction (Bad News for the Defense) (Journal Entry)

105

 

www.insidehighered.com (16 sources)

13

 

http://www.insidehighered.com/

—Links To Ward Churchill (Journal)

1

 

http://www.insidehighered.com/around_the_web/2009/03/atw10

—Links To Ward Churchill (Journal)

2

 

http://www.insidehighered.com/around_the_web/2009/03/atw11

—Links To Ward Churchill (Journal)

1

 

http://www.insidehighered.com/around_the_web/2009/03/atw12

—Links To Ward Churchill (Journal)

3

 

http://www.insidehighered.com/around_the_web/2009/03/atw14

—Links To Ward Churchill (Journal)

2

 

http://www.insidehighered.com/around_the_web/2009/03/atw16

—Links To Ward Churchill (Journal)

7

 

http://www.insidehighered.com/around_the_web/2009/03/atw8

—Links To Ward Churchill (Journal)

2

 

http://www.insidehighered.com/around_the_web/2009/03/atw9

—Links To Ward Churchill (Journal)

3

 

http://www.insidehighered.com/blogs

—Links To Ward Churchill (Journal)

2

 

http://www.insidehighered.com/home

—Links To Ward Churchill (Journal)

1

 

http://www.insidehighered.com/layout/set/print/news/2009/04/03/churchill

—Links To Ward Churchill (Journal)

5

 

http://www.insidehighered.com/news

—Links To Ward Churchill (Journal)

1

 

http://www.insidehighered.com/news/2009/03/10/qt

—Links To Ward Churchill (Journal)

10

 

http://www.insidehighered.com/news/2009/03/11/qt

—Links To Ward Churchill (Journal)

50

 

http://www.insidehighered.com/news/2009/04/03/churchill

—Links To Ward Churchill (Journal)

2

 

http://www.insidehighered.com/views

—Links To Ward Churchill (Journal)

100

 

thedrunkablog.blogspot.com (7 sources)

67

 

http://thedrunkablog.blogspot.com/

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

5

 

http://thedrunkablog.blogspot.com/2009/03/afternoon-churchill-trial.html

—Links To Ward Churchill - Churchill v. University of Colorado: Morning of Sixth Day--March 16th. (Journal Entry)

1

 

http://thedrunkablog.blogspot.com/2009/03/boycott.html

—Links To Ward Churchill - Churchill v. University of Colorado: Friday, March 13 – Afternoon (Journal Entry)

17

 

http://thedrunkablog.blogspot.com/2009/03/du-blog-to-cover-churchill-trial.html

—Links To Home - Covering Churchill v. University of Colorado (Journal Entry)

4

 

http://thedrunkablog.blogspot.com/2009/03/trial-highlights-for-children.html

—Links To Ward Churchill - Churchill v. University of Colorado, Thursday Morning (Journal Entry)

4

 

http://thedrunkablog.blogspot.com/2009/03/trial-of-billy-jerk-day-one.html

—Links To Home - Churchill v. University of Colorado: The First Morning (Journal Entry)

2

 

http://thedrunkablog.blogspot.com/2009/03/unleash-plan.html

—Links To Ward Churchill - Churchill v. University of Colorado: The Nuclear Blast (Journal Entry)