Ward Churchill's ruling was handed out today. It appears as if the Jury verdict was vacated and Churchill gets nothing at all.
http://content.clearchannel.com/cc-common/mlib/636/07/636_1246992151.pdf
Here is a PDF of the ruling.
Below is a portion of the ruling in the quote box...
http://content.clearchannel.com/cc-common/mlib/636/07/636_1246992151.pdf
Here is a PDF of the ruling.
Below is a portion of the ruling in the quote box...
ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW AND DENYING PLAINTIFF’S MOTION FOR REINSTATEMENT OF EMPLOYMENT
1. The Plaintiff in this matter is Professor Ward Churchill, and the Defendants are the University of Colorado and the Regents of the University of Colorado. This matter comes before the court on Defendants’ Motion for Judgment as a Matter of Law and Plaintiff’s Motion for Reinstatement of Employment. This Court, having heard testimony, received exhibits, and heard argument of counsel and being otherwise fully apprised in the premises, does find and order as follows:
2. On April 2, 2009 following a four-week jury trial, the jury in this matter found in favor of Professor Churchill on his Second Claim for Relief-First Amendment Retaliation in Terminating Professor Churchill’s Employment.
3.
The Defendants move this Court to enter judgment as a matter of law in their favor on Professor Churchill’s Second Claim for Relief on the ground that it is barred by the doctrine of quasi-judicial immunity.
4.
Professor Churchill requests the Court order his reinstatement of employment to his former position of fully tenured professor at the University of Colorado, and to provide such further equitable relief as is necessary to vindicate his rights under the First Amendment to the United States Constitution.
5.
For the following reasons I grant Defendants’ Motion for Judgment as a Matter of Law and deny Professor Churchill’s Motion for Reinstatement of Employment.
I. Motion for Judgment as a Matter of Law
Background
6. As specified in the pleadings and Trial Management Order, the University preserved the defense that it was immune from liability. The parties agreed that the University would present its immunity arguments after the jury’s verdict because judicial immunities are a legal issue to be determined by a court, not a jury. See Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (stating that “whether a public official is entitled to absolute immunity is a question of law.) Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990) (stating “judicial immunity is a question of law”); Brewer v. Blackwell, 692 F.2d 387, 390 (5th Cir. 1982) (stating that “whether an official is protected by judicial immunity is a question of law and the facts found by the district judge in making that determination are to be reviewed under the ‘clearly erroneous’ standard”).
7.
Early in the lawsuit, Professor Churchill brought claims not only against the University and the Board of Regents, but also against each of the individual Regents who served in 2005 (when the University examined whether his speech was constitutionally protected) and in 2007 (when the Board of Regents dismissed him). Litigants normally file claims in this manner because public officials sued in their individual capacities cannot claim Eleventh Amendment immunity. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985).
8.
Under the Colorado Governmental Immunity Act, however, the University is required to defend and indemnify the Regents for claims arising within the scope of their service. C.R.S. §24-10-103(4)(a) (stating that a “public employee” means “an officer, employee, servant, or authorized volunteer of the public entity, whether or not compensated, elected, or appointed”); C.R.S. §24-10-110(1)(a-b) (stating that a public entity shall be responsible for the defense and payment of claims arising against public employees). Under these circumstances, allowing the case to proceed against each individual Regent would only increase the cost of the case (because each Regent could hire separate counsel) and add to the complexity of the case (because any judgment could be entered only against an individual Regent subject to reimbursement by the University). In an already complicated case, asserting Eleventh Amendment immunity would not change the parties’ ultimate position, but would delay Professor Churchill’s ability to have his claims resolved in a timely and efficient manner.
9. To avoid this unnecessary cost and complexity, the University agreed to waive its Eleventh Amendment immunity, thus allowing direct claims to be brought against the University and the Board of Regents. In return for the ability to bring direct claims, however, Professor Churchill agreed that the University acquired the ability to assert any defenses that would be available to individual Regents. The parties’ Stipulation provides:
The University agrees and stipulates that it shall waive its immunity to claims for damages under the Eleventh Amendment to the United States Constitution to permit the same recovery from the University that might otherwise be had against any of its officials or employees acting in their official or individual capacities, reserving to the University the ability to present the same defenses that would have been applicable to any of its officials or employees acting in their official or individual capacities.
10. Therefore, because quasi-judicial immunity was a “defense that would have been applicable to any of its officials or employees” it is a defense available to the University and the Board of Regents.
Findings of Fact
11. Article VIII of the Colorado Constitution creates a number of state institutions and states, “Educational, reformatory, and penal institutions as the public good may require, shall be established and supported by the state, in such manner as may be prescribed by law.” Colo. Const. Article VIII, §1. Within this broad grant of authority, the Colorado Constitution created the University of Colorado as a state institution of higher education. Colo. Const. Article VIII, §V. For governance of the University of Colorado, the Constitution provides, “There shall be nine regents of the University of Colorado who shall be elected in the manner prescribed by law for terms of six years each.” Colo. Const Article IX, §12. The Board of Regents, as a constitutional body that is not part of the legislative or executive branches, occupies a unique position in Colorado’s governmental structure. Subryan v. Regents of the University of Colorado, 698 P.2d 1383, (Colo. App. 1984).
12. Among the Constitutional powers vested in the Board of Regents is the power “to enact laws for the government of the University.” Subryan, 698 P.2d at 1383. Acting pursuant to this authority, the Board of Regents enacted Laws of the Regents. These laws define both the grounds and the process for dismissing a tenured member of the of the University’s faculty. Specifically Article 5.C.1 of the Laws of the Regents states:
A faculty member may be dismissed when, in the judgment of the Board of Regents and subject to the Board of Regents’ constitutional and statutory authority, the good of the University requires such action. The grounds for dismissal shall be demonstrable professional incompetence, neglect of duty, insubordination, conviction of a felony or any offense involving moral turpitude upon a plea or verdict of guilty or following a plea of nolo contendere, or sexual harassment or other conduct which falls below minimum standards of professional integrity.
13. Article 5.C.2.(A)(1) of the Laws of the Regents specifies that “no member of the faculty shall be dismissed except for cause and after being given an opportunity to be heard…” If the University’s administration contemplates that it will dismiss a faculty member, the faculty member may request a hearing before the Faculty Senate Committee on Privilege and Tenure. Laws of the Regents, Article 5.C.2.(B). At any such hearing, the faculty member “shall be permitted to have counsel and the opportunity to question witnesses . . . [and] the burden of proof shall be on the University
administration.” Laws of the Regents, Article 5.C.2.(B). After the Faculty Senate Committee on Privilege and Tenure makes its findings, the President of the University issues a recommendation and transmits it to the Board of Regents for final action. Laws of the Regents, Article 5.C.2.(C).
14. To implement the Laws of the Regents’ requirement that no faculty member be dismissed “except for cause and after being given and an opportunity to be heard,” as well as the faculty member’s right to a hearing before the Faculty Senate Committee on Privilege and Tenure, the Regents enacted Regent Policy 5-I. The University followed Regent Policy 5-I in the weeks and months preceding its dismissal of Professor Churchill.
15. Regent Policy 5-I, §III(A)(a) allows the Chancellor of University of Colorado at Boulder to initiate the dismissal for cause process by issuing a written notice of intent to dismiss. On June 26, 2006, Interim Chancellor Philip DiStefano issued a Notice of Intent to Dismiss informing Professor Churchill that the University intended to dismiss him as a tenured faculty member. The Notice of Intent to Dismiss occurred after the University of Colorado at Boulder‘s Standing Committee on Research Misconduct concluded that Professor Churchill violated the University’s Administrative Policy Statement on Misconduct in Research and Authorship. Chancellor DiStefano informed Professor Churchill that his “pattern of serious, repeated and deliberate research misconduct fall below minimum standards of professional integrity expected of University faculty and warrants your dismissal from the University of Colorado.”
More at link....
