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Looking Closer at Judge Naves' Order


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.

Reader Comments (8)

The court's order is going to confuse people who are unclear about immunity doctrines and state employment. Usually some state employees are at will, while some can only be terminated for cause (such as Churchill). Where termination is for cause, the due process clause of the Constitution guarantees procedural safeguards such as notice and hearing. Where immunity comes into play, however, the result to be avoided is the insulation of one process or the other (at will or t for c) from liability for clearly established Constitutional violations. We don't want conduct that leads to termination to be immune from actions for damages if it was the result of a witch hunt or racial or religious pogram simply because a board or a panel made the decision instead of a single agency official. The Regents cannot just decide tomorrow that they are going to fire all the black professors because they don't like black people and expect absolute, quasi-judicial immunity for it.

In the hysteria that is the fallout from this order, there needs to be distinction between (1) immunity from suit and immunity from liability (quasi-judicial covers both grounds); and (2) the separate issue of absolute versus qualified immunity. I don't count on that happening, so let me just say this:

The order correctly holds that the state employee who can only be terminated for cause after notice and hearing before quasi-judicial officers, if terminated, needs to seek a declaration that the termination was an "abuse of discretion" (i.e., arbitrary, capricious, or not in accordance with law) in the district court under CRCP 106. That did not occur here.

During a CRCP 106 action, the employee can raise the Constitutional issues as counterclaims (and join the individual state officials if the state won't agree to waive immunity from suit in the manner it did here).

But under this order, what remedy if the termination decision is set aside as an abuse of discretion under CRCP 106 because it was "not in accordance with law" i.e., it was based on a Constitutional violation? Here, the jury found the elements of First Amendment retaliation (see para. 72 of the order). That most certainly would have required the termination decision to be declared unlawful and set aside under CRCP 106(a)(4).

So what remedy and what is the source of the court's power to grant it? One would think CRCP 106(a)(2), compelling the quasi-judicial body to restore the emplyoee to the position they are entitled to per the declaratory judgment, and including any damages sustained. CPRC 106(a)(2) is a waiver of both immunity from suit and immunity from liability, including damages, at least I would hope. If not, we wind up with the situation where Constitutional violations against state employees are consequence free if they were perpetuated by a state board as opposed to merely someone's boss at a state agency. Such a result would not seem justifiable.

It was a bad idea for Churchill not to directly challenge the termination decision by filing a CRCP 106 action. This separate suit that did occur indicates some real motives, though. It seems like it was totally a no-risk vanity/punitive money-seeking action for Churchill, as his attorney took it on contingent fee. I doubt the man seriously wanted his job back; he wanted the front pay and the damages. To have any chance at that, he still needed to get the termination decision set aside as an abuse of discretion.
July 8, 2009 | Unregistered CommenterBrian
Doesn't this decision mean that faculty members who are fired have no ultimate legal recourse, even for unconstitutional or retaliatory adverse actions? What could be done to make it airtight-- ask for lots of back pay, or don't name the Regents? I always thought it was strange that Churchill didn't seek back wages.
July 8, 2009 | Unregistered CommenterJim C.
The problem is that the law has rationalized itself into an alternate reality where, rather than upholding our inalienable equality and free speech rights, the law arrogantly thinks it can define reality, mainly to uphold its fake power hierarchy where they are master (by arbitrary decree) and, we, slaves. It is the collective efforts of those with the determination to be free, such as Ward Churchill who will defeat this absurdity.

Free speech (disseminating information) is crucial to our social / economic survival. Proof:


As to the courts, they are seriously misrepresenting the "rule of law" to their and their cronies advantage and to the detriment of we, the people and inevitable, ongoing collapse of civilization.

The "rule of law" is a precisely defined law. It is the highest law of mankind, stated below:

the suppression of forceful and fraudulent methods of goal seeking”

all are treated equally by the law”. This means ALL, including king and judges

absolute property rights”

This in turn is based on the fact that human behavior (the topic of law) is about goal seeking. In the seeking of any goal, there are only three possible methods: force, fraud and honest trade. Any transaction that is not an honest, mutually agreed trade will cause a self-defensive response (conflict) from the victim whose survival has been affected.

"The Rule of Law" is the glue that keeps all of mankind acting together in common interest, tied together by mutual dependence of trade, on an evolutionary path to excellence. Force and fraud creates conflict and destroys civilizations. Mankind is now on a devolutionary path to extinction because the co-operation once forced by "the rule of law" has been replaced by legitimizing force and fraud for those who incorrectly believe they wield power.

Rule of Law, Defined: http://www.nazisociopaths.org/modules/article/view.article.php/c1/34

Purpose of, Reasons For: http://www.nazisociopaths.org/modules/article/view.article.php/36

Mathematics of Rule (explains current economic stall):

Bill Ross
(Electronics Design Engineer)
July 9, 2009 | Unregistered CommenterBill Ross
Let's see, in response to my comment I got two other comments below mine that:

(1) ask the question I already answered (No, terminated state employees are not without recourse. If they are at will and not provided with further appeal procedures by their agency they can bring the exact same suit Churchill did. If they are terminated for cause and go through a quasi judicial process, they just have to file a CRCP 106 action); and

(2) have Crazy invoking Godwin's Law.

Great. Golf clap. I'm glad rational discourse is prevailing in this country.

Just two other things I wanted to say. First, the CRCPs are adopted by statute and are in the CRS, so they can waive sovereign immunity for suit and liability, which CRCP 106 appears to do. Thus the lesson is, if you want your money, you have to do it right (invoke the state statute, not 42 USC 1983 which Congress cut you out of because it denies remedies when there is quasi-judical immunity). But even if there wasn't CRCP 106, most states have Administrative Procedure Acts that contain a similar waiver.

That leads to my last point, which is, even if the state did not effect such a waiver by statute in a rule like CRCP 106 or an APA, it is HIGHLY LIKELY that a state supreme court would judicially interpret the state constitution and find such a waiver of immunity for unconstitutional actions ANYHOW, because such actions are ultra vires and thus not truly "of the state" at all. But certainly this case does at least make people think about "What if the state tried to immunize itself for constitutional violations by getting rid of statutes like CRCP 106 or an APA?"

Unfortunately, it also causes more of them to get all crazy and stupid and miss the point.
July 9, 2009 | Unregistered CommenterBrian
All very interesting but so what? The fundamental question remains unanswered: why have a trial if it doesn't mean anything?

C.U.'s immunity is beside the point. Immunity doesn't cover constitutional violations.

Brian's CRCP 106 procedure doesn't really answer anything either. If the failure to file a CRCP 106 is going to negate the results of a trial, then a viable legal system is going to invoke procedural violation and save all parties the time and trouble of a meaningless trial.

Judge Naves gave the jury strick instructions for coming to a verdict and the jury followed those instructions. How can you just delete that? Why bother in the first place? This is grist for Churchill's mill.
July 9, 2009 | Unregistered CommenterBrad
Yes, you encounter a lot of nuts when dealing with Churchill. However, there is a positive side. Based on reading this site, I now have advanced notice that the next Republican President's Supreme Court nominee will be Judge Naves :)
As someone outside the legal profession, I appreciated your informative post, which clarified some of the issues about Churchill's path not taken.
I guess I am still confused by whether Churchill's lawyer was incompetent, greedy, or pursuing a deliberate strategy based on avoiding the Colorado law. That question can only be answered by Lane, who probably wouldn't be willing to admit to my first two speculations. It would be nice if RTTB talked to Lane, like they did with O'Rourke, to ask him about his strategy. Students can learn from the outfoxed as well as the clever trap setter.
July 9, 2009 | Unregistered CommenterLeah
Such a joke; obviously the judge was biased and looking for any excuse to rule against Churchill...if CU didn't file that particular motion, or if the jury did award damages, I'm sure Naves would have come up with some other stupid legal argument (or rather CU's legal team would have, and Naves would have copied it virtually verbatim) so that he would look good to the power elite in CO. This is my favorite part:

"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.'"

Obviously a load of bs because no committee of faculty members at CU ever voted to terminate Churchill, only to suspend him. It was only the politician-regents who wanted to fire him. I know he can't legally do this, but if he really cared about the faculty being able to police their own, then Naves should have ruled that Churchill should serve a suspension and then be reinstated. I know he wouldn't do this if he good, but i find it funny that he went out of his way to make this point, when actually the facts don't support his claim.
July 9, 2009 | Unregistered Commenterbtc
btc ***:

"because no committee of faculty members at CU ever voted to terminate Churchill, only to suspend him."

Not so. *** . The Standing Committee on Research Misconduct voted 6-3 for dismissal.

It looks to me as if David Lane made two monstrous blunders. First, Lane agreed to stipulate that CU could claim quasi-judicial immunity (and didn't realize that he was doing so). Second, Lane failed to make a claim under 106.

The second blunder was the more significant, because had he gotten this right, he could have recovered from the first blunder.

Lane's third blunder was in failing to adequately counsel his client that he really should be applying for jobs to mitigate his damages.

Lane's fourth blunder was in failing to adequately counsel his client to keep his mouth shut about his financial situation, and about his hostile feelings towards CU.

We can't hold Lane entirely responsible for these last two, because reigning in Churchill's behavior is a tough job. But still, how hard would it have been for Churchill to send out a few job applications now and then? What a huge mistake!
July 9, 2009 | Unregistered CommenterDeepak

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