“Making a record” is the process of attorneys giving statements for the court reporter to capture for the record that are not evidence, are out of hearing of the jury, but nonetheless need to be preserved for future reference. Future reference is code for appellate review, which is bound to happen in this case. So both sides and Judge Naves want to have their decisions, logic, arguments and rationale on the record regarding the various motions that have been made and decided on, as any one or several could be the basis for an appeal.

After the jury departed this afternoon, the judge ruled and the parties “made a record” on two important issues: 1) a motion by defense for a directed verdict to dismiss the first claim, and 2) motions from both sides regarding jury instructions.

The first claim for relief in the Complaint is for “42 U.S.C. § 1983 – First Amendment Retaliation in Launching the Investigation.” This was a fairly novel complaint. The parties have evidently been discussing off the record throughout the trial whether it is a valid and sustainable claim, with both sides submitting briefs, case law, etc. to assist Judge Naves’ final decision. The issue is whether "investigation" with its chilling effect is an “adverse employment action” under First Amendment protection. Judge Naves, referring from and reading from two cases, held that it is not, therefore the claim is dismissed.

Churchill’s attorneys (they took turns) argued that defendants were asking to create a bright-line rule that investigations are not actionable under the First Amendment but some Tenth Circuit decisions have said that the matter is to be evaluated on a case-by-case basis. Judge Naves preferred to reference the cases he said were “directly on point.”

In Spagnuolo v. City of Longmont, 2006 WL 2594484 (D.Colo.) (for which David Lane was Plaintiff’s attorney), the U.S. District Court held that investigation is not actionable retaliation. “Although Tenth Circuit does not require termination or its equivalent to find an adverse employment action for purposes of a First Amendment retaliation claim, it has not, to my knowledge, found that an investigation by a public employer is an actionable retaliation for exercise of First Amendment rights.” Spagnuolo is directly connected to the Churchill case. Spagnuolo, a Longmont employee, called into a talk radio show to participate in “all Churchill, all the time.” His comments related to police officers acting as oppressors, and that violence may be an appropriate tool of self-defense against the government. About a month later Spagnuolo was told by Longmont officials that they were searching his office computer and investigating whether he was on the job or using a City cell phone when he called. The investigation only resulted in a Performance Development Plan, and Spagnuolo unsuccessfully sued the City for First Amendment violation.

Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000), quoting other cases, noted that “Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” “This court has ‘declined to expand the list of actionable actions, noting that some things are not actionable even though they have the effect of chilling the exercise of free speech.’” Judge Naves ruled for the defense’s motion to dismiss based on these precedents.

Relating to jury instructions, Lane asked the record reflect his objection to the court not including his following requests:

Instruction that retaliation be able to be considered “a” motivating factor and not ”the" motivating factor,

Instruction that even if Regents acted in good faith, if they relied on information from the Investigating Committee (which Lane always refers to as the Wesson Committee) that would have to be examined for bad faith and the jury could so find,

That the jury can use the temporal proximity of the 9/11 firestorm and the timing of the investigation to infer bad faith,

That if the jury believes the explanation proffered by the employer is false, the jury is entitled to infer a discriminatory motive,

That all jury instructions be tendered and kept in the record for appellate review.

O’Rourke had comments on several of these requests. As well, O’Rourke requested that the instructions require the jury to find that a majority of the Regents acted with retaliatory motivation or were motivated by unlawful considerations. Lane objected to this as it means his burden of proof is higher, but Judge Naves held that if it takes a majority of the Board of Regents to act to terminate, then it should take a majority to prove wrongful retaliatory motivation. The jury will therefore have to find that “A majority of the members of the Board of Regents viewed Professor Churchill’s protected speech activity as a substantial motivating factor in the decision to discharge the plaintiff from employment.“ We will not know what the final and complete jury instructions are until tomorrow morning.

These decisions do not bode well for the Plaintiff.  The burden of proof is now quite high.  To find for the Plaintiff, the jury must decide that a preponderance of the evidence, i.e. over 50%, shows that a majority of the Board of Regents were motivated to fire Churchill primarily for things he said that were protected under his First Amendment right of free speech, rather than because he committed academic misconduct. 

The final dispute was over whether all eight jurors—six plus two alternates—will be allowed to deliberate (but only six will vote). O’Rourke wanted all eight to deliberate, possibly because the juror who took the most notes is an alternate, and careful references to notes might give the defense an advantage. Lane only wants six, but is willing to “split the difference” for seven if the seventh is the first alternate. We do not know who the first alternate is, but evidently there is defense concern about her/him. Judge Naves has a preference for all jurors deliberating on the basis that it only seems fair when they have endured so much testimony for so long that they get to participate in deliberations; it encourages and supports the jury system. In the end, we didn’t get a decision on that; it will be decided tomorrow.

There were other procedural issues brought up for record-making, all of which have been discussed in posts before so we will not repeat them. Attorney demeanor for all these issues was subdued, almost perfunctory. Lane was not surprised in any way to have lost the motion to dismiss the first claim, which makes sense considering he has lost that argument in the prior case. And—it could be that everyone was just tired.

We left just before 6:00 p.m. looking forward to an exciting morning of closing arguments tomorrow.