Yesterday afternoon on KHOW, host Dan Caplis, who's been verbally tarring and feathering former University of Colorado professor Ward Churchill for several years now, did a Miss America impression following Judge Larry Naves' decision not to give Churchill his old CU job back, accepting the plaudits of callers with evident self-satisfaction during a figurative victory promenade. Along the way, Caplis noted that he'd bet Churchill attorney David Lane a steak dinner on the outcome of the hearing, and he expected that Lane, being an honorable man, would pay off.
But Caplis won't be chomping into a sirloin anytime soon. Lane has already promised to appeal the ruling, which tossed the original jury's verdict in Churchill's favorite, albeit with a cash reward of just a dollar, under the logic that the panel of CU regents that voted to sack the controversial prof constituted a quasi-judicial body that can't be sued. (Read the court document by clicking here.) On the surface, this judgment makes little sense, since Naves could have come to this conclusion without even going through the motions of a trial -- and the one-sided nature of his findings certainly struck Kevin O'Brien, an associate professor at Daniels College of Business. In a piece penned for TheRaceToTheBottom.org, a University of Denver website that provided some of the most evenhanded coverage of the Churchill affair, he writes:
What is remarkable about the judge's decision is that it adopted almost every argument proffered by CU's legal briefs. Reading today's trial decision felt like I was re-reading the CU briefs. For example, by not awarding even front pay in lieu of reinstatement, Judge Naves effectively blocked an award of attorney fees to Churchill on the basis that the $1 award represents a Pyhrric victory invalidating the award of attoreny fees under existing case law (in the event his quasi-judicial immunity ruling in favor of CU is overturned and the reinstatement and front-pay issues are no longer moot).
The particular CU argument that stands out on reinstatement that was adopted by the Judge Naves related to the $1 jury award. Judge Naves reasoned: "As a result, I determine that I am bound by the jury's implicit finding that Professor Churchill has suffered "no actual damages" as a result of the constitutional violation." Judge Naves then reasoned that reinstatement would be inconsistent with the jury's decision that no actual damages were awarded. However, the jury specifically was instructed to only focus on damages up to the day the jury makes its decision, while the court would decide the appropriate damages/remedies after the trial. Based upon existing case law, it is questionable that the jury's $1 award bound Judge Naves on the reinstatement decision and is probably legally irrelevant. Factually, this is especially true in light of published jury comments after the trial that five of the jury members sought significant damages while one member held out for no damages since Churchill had testified that he was not seeking money -- just his job.
Blogger Benjamin Whitmer, among Churchill's most vocal supporters, also noted the similarity between Naves' words and CU's. "I'm no kind of lawyer," he concedes, "but it doesn't seem entirely on the up-and-up for a judge to simply copy portions of his ruling verbatim from motions filed by one side or the other. If nothing else, it's plagiarism, right? Which is pretty ironic, given the case and Naves' ruling for CU." Also on Whitmer's site -- a statement from Native American leader Russell Means and musings by Churchill's wife, Natsu Saito, who quotes a couplet by Steve Earle: "There are some who break and bend/I'm the other kind."
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If nothing else, this last reference is an indication that Caplis should hold off on making dinner reservations.