Ward Of The State
I don't have much use for Ward Churchill. The former professor at the University of Colorado doesn't strike me as much of an academic. But still, after the jury (mistakenly, I'd say) declared he was improperly fired, it seems wrong that the judge doesn't think he should get his job back, or even receive "front pay."
The judge and jury may believe they're splitting the difference, but Churchill won his case. His rights have been violated. There should be a real remedy.
posted by LAGuy @ 12:24 AM
4 Comments:
Not surprisingly, the NY Times story is fairly inadequate in describing what has happened in this case.
Here is an excellent description of what happened in this case:
http://www.theracetothebottom.org/ward-churchill/
In short, David Lane, Churchill's attorney, is a flamboyant, civil rights/plaintiff's attorney, who always had the advantage in a jury trial. Many say he won the case in voir dire when he was able to kick off the jury virtually anyone who had ever heard of Rush Limbaugh or Mike Rosen (local conservative radio commentator).
Although CU had taken months to investigate charges that Churchill had plagarized his academic writings, misrepresented himself as a native American to obtain his job at the school, and employed shoddy research techniques, Lane was able to make the jury focus on one question: Were the CU Regents thinking about the reprehensible things Churchill said when they decided to fire him. The answer was of course yes (who wouldn't). Then, Lane said, in order to protect FREEDOM OF SPEECH, the Jury must find for the Plaintiff.
The Jury did this, but awarded damages of $1 (they wanted to do $0, but Judge Naves told them they had to do a nominal amount). Judge Naves now has ruled that this meant the Jury agreed that that the Regents improperly consiered Churchill's speech in deciding to fire him, but also believed that the Regents (a quasi-judicial body) had found sufficient other causes to fire him, and thus no damages were incurred.
And now the masterstroke of the CU legal team - they had preserved the right on appeal to argue the immunity a quasi-judicial body from law suit due to a decision made in good faith, according to proper procedures, etc. judges would hate to be susceptible to suit everytime someone disliked the outcome of their decision, so all judges are pretty sympathetic to this argument.
Secondly, Naves ruled that even if the school was liable, the Jury already found no damages - which means the jury specifically said it was right to fire Churchill, just not for the reasons the jury believed were in the Regents' minds.
I disagree with the article on one point - I believe that the reservation of the quasi-judicial immunity defense was not so much a trap, as a complicated legal argument that both parties agreed to postpone pending outcome of the trial for legitimate reasons. I'm told this often goes on, especially in a showy trial like this where both parties believe they should win on the facial principles (freedom of speech ran both ways in this case - CU believed it was tarnished by Churchill's shoddy and/or plagarized academic work, and had the riggt, as employer of Churchill, to act to preserve its academic reputation).
Here is the actual CU brief that presents the argument that Judge Naves accepted in a well constructed opinion of some 34 pages.
http://law.du.edu/documents/corporate-governance/churchill/Reply-Brief-in-Support-of-Motion-for-Judgment.pdf
Most legal commentators here in Colorado believe Naves' opinion is pretty much appeal-proof. This decision will make for wonderful case study for decades to come. It demonstrates that flamboyant jury trial practice can be countered by thoughtful, legal analysis, even at the trial level.
Thanks for the field reporting, Denver Guy. But I think the jury got it wrong, and once they get it wrong, you're stuck. I have a lot more trouble, in fact, with the quasi-judicial immunity argument.
Okay, but I think really all the court did. in esence, was grant a summary judgment motion that the parties stipulated before trial would be considered after trial if necessary (I don't think it was trap).
And in this case, the quasi-judicial immunity defense is simply noting that Churchill had had a full, quasi-judicial review of his case by the Board of Regents (a gov't body, because CU is a state school). He could have sought to have their decision reviewed through administrative and ultimately judicial channels, but he chose to instead assert the violation of his 1st Amendment rights by the tribunal (the Regents).
So the court has left the plaintiff with a victory without a remedy. If its too complicated to explain, it probably won't stand
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