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.