This afternoon, just over a year after the Colorado Supreme Court agreed to hear the Ward Churchill case, attorney David Lane will appear before the jurists to argue why the professor, who was fired by CU-Boulder for reasons he sees as payback for a controversial 911 essay, should get his old job back. But Lane believes the matter has plenty of additional impacts.
Churchill "clearly believes that justice should prevail," Lane says. "And I believe that, too. But so far, justice has not prevailed."
As we've reported, CU looked into Churchill's scholarship following publicity surrounding an essay he wrote post-9/11 in which he compared victims of the terrorist attacks to "little Eichmanns" -- and after finding areas of concern, the university's regents fired him. Churchill responded by suing the school for violating his First Amendment rights in retaliation for his essay, and he won -- the jury awarded him one dollar in damages. But District Court Judge Larry Naves slapped down his request for reinstatement, ruling that CU had the right to give him the heave-ho -- and the Colorado Court of Appeals agreed.
After this defeat, Lane appealed to the Colorado Supreme Court, with his filing focusing on three questions:
1) Can an investigation into his writings and speeches if motivated by retaliation for First Amendment protected speech (Churchill's 9/11 essay) amount to a free-standing First Amendment violation?
2) Should the Regents have been given quasi-judicial immunity from suit?
3) Can equitable relief (Churchill gets his job back) be given even if the Regents got quasi-judicial immunity from suit?
Lane originally thought it the prospects of the Colorado Supreme Court taking the case were slim -- but the Supremes not only added it to the docket but is giving each of these arguments a hearing. Here's how Lane lays them out.
The CU regents "originally said they were going to investigate every word Ward Churchill ever wrote or spoke to see if they could find cause to discharge him in retaliation for his 911 essay," Lane maintains. "That was dismissed as not actionable by the trial court.... But investigating Ward Churchill's speeches to see if they could figure out a way to fire him is a First Amendment violation. The federal courts have said it is -- so we're asking the Colorado Supreme Court to come to their senses and agree that a bad-faith investigation to look for an excuse to fire someone in retaliation for their free speech should be a cause of action."
Just as important, in his view, is the question of whether "the regents should be immune from lawsuit. The Court of Appeals and the District Court said they should be, but we're saying that's absolutely wrong."
The rationale for immunity? Judges are immune from lawsuits, and the lower courts maintain that the regents were operating in a quasi-judicial capacity, "like DMV hearing officers," Lane says. "The courts have decided a DMV hearing officer shouldn't have to go through a lawsuit every time he suspends someone's driver's license."
However, Lane argues that the regents were instead "acting like politicians -- and since the jury verdict for Churchill said that but for his 911 essay, he should never have been fired, why should these guys get immunity? Quasi-judicial immunity has only been given in the most limited circumstances, and if they start handing out immunity to governmental actors, the citizens lose one of the biggest checks they have to keep the government under control.
"After a month long trial, a jury said the regents broke the law by firing Ward Churchill," he goes on. "But they get immunity -- and if they keep it, they can continue to break the law with impunity, which has severe negative repercussions for the people of Colorado. If the court decides they can launch a microscopic investigation against someone because they disagree with their speech, that means they could turn the Colorado Bureau of Investigation loose on you -- follow you, track your every move to try to see if you do something wrong simply because they don't like your speech, and you'd have no recourse. And I think the citizens of Colorado have ideas about individual privacy and autonomy that don't comport with that."
The Colorado Supreme Court hearing gets underway at 1:30 p.m. today and is slated to last an hour, with a ruling expected to following several months from now. But even if the justices reject Churchill again, Lane stresses that the case won't be over -- because there's always the U.S. Supreme Court.
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