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Ward Churchill Won’t Get Job Back, Appeals Court Rules

LAW WEEK COLORADO

DENVER — A three-judge panel of the Colorado Court of Appeals on Wednesday affirmed a trial court decision denying reinstatement of Ward Churchill as professor at the University of Colorado. The decision could next be appealed to the state Supreme Court.

Churchill filed a lawsuit against the CU regents alleging his 2007 firing violated his First Amendment rights because it was done in retaliation to his remarks about 9/11. CU countered that Churchill was fired over plagiarism.

A jury last year returned a verdict in favor of Churchill, who then made a post-trial motion for reinstatement. But now-retired Denver District Chief Judge Larry Naves tossed the verdict, siding with CU’s post-trial motion that the regents enjoyed quasi-judicial immunity for their actions.

The Court of Appeals affirmed Naves’ ruling that regents have quasi-judicial immunity, and also affirmed his directed verdict in favor of CU and the regents on Churchill’s civil rights claim because Churchill failed to prove CU’s investigation into his alleged plagiarism constituted an adverse employment action.

The unanimous appeals court opinion was written by Judge Dennis Graham, with judges Diana Terry and Laurie Booras concurring. Graham and Terry are appointees of former Gov. Bill Owens; Owens advocated Churchill’s ouster. Booras was appointed by Gov. Bill Ritter.

Churchill contended that CU only investigated him for research misconduct because of his controversial but constitutionally protected remarks comparing 9/11 victims to an infamous Nazi.

But the motivation behind an investigation is irrelevant to whether it is an “adverse employment action,” the appellate panel ruled:

“In extensive argument to the trial court, Churchill’s counsel contended that motivation is the sine qua non of an adverse employment action. We are unaware of any case concluding that an investigation was adverse because of the motive of the investigators. Moreover, the record before us indicates that the investigation involved twenty-five faculty members, whose collective motive was not established.”

David Lane of Killmer Lane & Newman represented Churchill at trial and at oral arguments in the appeals court. Antony Noble of the Noble Law Firm and Denver attorney Thomas K. Carberry also represented Churchill on appeal.

Patrick O’Rourke, head of litigation at CU’s Office of University Counsel, represented the school at trial and oral arguments. Also representing CU on appeal was Kari M. Hershey of Denver’s Hershey Skinner law firm.

“We’re pleased with the decision that the appellate court made,” said CU spokesman Ken McConnellogue. “It affirms what we have contended all along, and we’ll see what the next steps are.”

Lane said Churchill will ask the state Supreme Court to review the decision, which he said allows the regents to violate the constitution with impunity.

“The Court of Appeals has rubberstamped the University of Colorado,” Lane said. “It’s a real shame that a jury says the First Amendment was violated, and the Court of Appeals shrugs and says that’s OK. They really had to torture facts to arrive at the conclusion they arrived at.”

The decision invites review by the U.S. Supreme Court, Lane said, because it cites two areas of the law that have not been decided by that court.

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