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 11^th 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 11^th 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.