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.