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.”

Comments

[Reader]

Mr. O'Brien's insinuation that Judge Naves was biased because he is a CU alumnus is unpersuasive. Churchill's witnesses, including several CU professors, insisted that reinstating him would enhance the school's reputation, since a free speech icon would then be back on the faculty. Hence a judge who is a CU alum could be more favorably disposed to reinstating Churchill, relative to judges who graduated from other institutions. Moreover, it is not tenable to suggest that CU alums should recuse themselves from deciding Churchill's case. Such a rule would require recusals by any number of excellent jurists who serve on the appellate and supreme courts of Colorado.

If Judge Naves' decision seems "ostensibly one-sided," the reason may well be that the University presented arguments that were clearly more compelling, from an objective viewpoint, than the more sensationalistic arguments put forth by Churchill's lawyer. In any event, "ostensibly one-sided" better describes Race to the Bottom's analyses in the case of Churhcill v. CU than it does Judges' Naves careful, judicious decision. We can only hope this website's parsing of the legal issues in Judge Naves' opinion in the weeks to come reflects a less biased approach than we've seen so far.

[Bruce Deile]

Quasi-judicial immunity...Judge Naves’ ostensibly one-sided decision...conflict of interest since he is a CU law school alumnus...= plutocracy; no surprise.

[Jim C.]

I don't buy the idea that Naves should have recused himself because he was an alumnus. But it's obvious that any ambitious judge who was seeking higher recognition (and a possible SCOTUS appointment) would chomp on the bit to get at this case and then reverse it to waves of popular reaction. Naves is a hero now to the folks that count. We'll hear more from this guy thanks to Churchill-- he's well on his way up the judicial ladder now.

[Peter Vujin, Esq.]

Judge Naves knavishly denied the most American of all institutions, the Jury. No appeals court could concievably affirm this summary judgment. Its like saying that the US can punish a person for his free speech since its the US - so no Constitution.
Further, the bias is implicit in the house-judges' prospects for the future - he's not joining a tribe of Indians!
I knew that the Judge was disadvantaged even before I saw his picture...but when I did, it told a million words. The Appeals Judgment will be need just one - reversed!