July 20, 2019

Tenth Circuit: Term “Case-in-Chief” Does Not Include Sentencing for Immunity Purposes

The Tenth Circuit Court of Appeals published its opinion in United States v. Oyegoke-Eniola on Thursday, November 14, 2013.

Defendant Eni Oyegoke-Eniola challenged his sentence following his guilty plea to charges of mail fraud and making a false statement on an immigration document. After pleading guilty, the defendant objected to two enhancements in the probation office’s presentence investigation report (PSR) that resulted in a sentencing guideline of 27-33 months’ incarceration. The government stated it would not seek one of the enhancements because it did not have evidence to prove defendant had five or more stolen-identity documents. The court wrote the parties a letter saying the defendant’s recalculated guideline sentence would be 21-27 months. At the sentencing hearing, the judge stated he would not impose the second disputed enhancement but felt an upward variance was necessary. Despite this, the judge later adopted the PSR “without change.”

On appeal, the Defendant argued  that the district court improperly imposed enhancements under the Sentencing Guidelines. Given the circumstances, the Tenth Circuit reviewed for abuse of discretion and found the defendant’s sentence had to be vacated.

The defendant also argued that statements he made under an immunity agreement should have been stricken from PSR. The immunity letter given by the government to the defendant said his statements would not be used against him “in the government’s case-in-chief.”  The term case-in-chief  does not include sentencing and so the court may use statements to vary upward from the guidelines.

The court vacated and remanded for resentencing.

Colorado Court of Appeals: Retrospective Application of Statute Abrogates Hospitals’ Credentialing Immunity

The Colorado Court of Appeals issued its decision in Hickman v. Catholic Health Initiatives on Thursday, August 29, 2013.

Immunity—Credentialing—CRS § 12-36.5-203(2)—Retroactive Application.

In this interlocutory appeal under CAR 4.2, defendant Catholic Health Initiatives, doing business as St. Anthony Hospital (hospital), appealed the trial court’s order denying the hospital’s assertion of immunity. The Court of Appeals affirmed.

In 2011, Kathleen Hickman sustained a knee injury. She sought treatment from a physician who was credentialed to practice as a vascular surgeon at the hospital. Allegedly as a result of the physician’s failure to diagnose and treat a circulatory problem, Hickman’s leg was amputated on November 18, 2011. Hickman and her husband sued the hospital and the physician on January 23, 2013 for negligent credentialing.

The hospital asserted that the current statute does not apply because the credentialing decision and injury at issue occurred before the statute’s effective date, although the action was filed after that date. Since 1989, Colorado hospitals have been statutorily immune from damages in any civil action brought against them with respect to peer review proceedings. CRS § 12-36.5-203(2) (current statute) abrogated this immunity as to credentialing decisions, effective July 1, 2012. The plain language shows that the General Assembly clearly intended the current statute to apply retroactively. Because such application is not unconstitutionally retrospective and the current statute applied to this matter, the trial court correctly rejected the hospital’s assertion of immunity.

Summary and full case available here.

Tenth Circuit: State Waived Its Right Not to be Sued in Federal Court Under Eleventh Amendment

The Tenth Circuit Court of Appeals published its opinion in Pettigrew v. State of Oklahoma on Monday, July 15, 2013.

Thomas Pettigrew filed suit in federal court in Oklahoma against the Oklahoma Department of Public Safety (DPS) after having reached a settlement with DPS on previous claims. The state moved to dismiss the second and third state law claims, arguing the claims were barred by sovereign immunity under the Eleventh Amendment. The court denied the motion. The state filed this interlocutory appeal.

This appeal presented only one issue for consideration: whether the previous settlement agreement between Pettigrew and the Oklahoma Department of Public Safety waived the state’s Eleventh Amendment right not to be sued in federal court.

The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. State sovereign immunity ordinarily bars federal-court jurisdiction over private suits against a state by citizens of the state. Pettigrew did not suggest that any federal statute abrogated Oklahoma’s sovereign immunity with respect to his state-law claims. Therefore, all the Tenth Circuit had to resolve was whether the state waived its immunity.

Waiver of sovereign immunity must be knowing and voluntary, and the test for determining whether a State has waived its immunity from federal jurisdiction is a stringent one. Pettigrew contended that the Venue Provision of the Settlement Agreement was such a waiver. It stated: “In the event that any litigation is commenced by either party to enforce the terms and conditions of the Agreement, the litigation will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal . . . .”

Although the language of the agreement is not explicit, the Tenth Circuit held the settlement agreement’s reference to bringing suit in federal court had no reasonable construction except as a waiver. The Court therefore held that there was a waiver and affirmed the district court.

Tenth Circuit: Grant and Denial of Summary Judgment in § 1983 Action Affirmed

The Tenth Circuit Court of Appeals published its opinion in Fancher v. Barrientos on Friday, July 12, 2013.

Defendant Johnny Barrientos, a deputy of the Doña Ana County Sheriff’s Department, appealed the district court’s denial of his motion for summary judgment in a 28 U.S.C. § 1983 action brought by Lucia Fancher, individually and on behalf of the estate of her son, Nick Dominguez. Fancher alleged Barrientos used excessive force in violation of the Fourth Amendment when he shot Dominguez seven times following a confrontation in Mesquite, New Mexico. Dominguez died as a result of one or more gunshot wounds. Barrientos asserted he was entitled to qualified immunity because his use of deadly force was objectively reasonable and did not violate clearly established law. The district court granted Barrientos’s motion for summary judgment to the extent Fancher’s claim arose from the firing of the initial shot, but denied the motion to the extent the claim arose from the firing of the subsequent six shots.

On appeal, Barrientos made three arguments. First, he asserted the district court erred in analyzing the second through seventh shots separately from the first shot. Next, he argued the district court did not sufficiently consider the risks posed to third parties in analyzing the reasonableness of shots two through seven.

The Tenth Circuit held it lacked jurisdiction to consider the first two arguments. The court has jurisdiction to review all final decisions of the district courts of the United States. Ordinarily, an order denying summary judgment is not a “final decision.” The denial of qualified immunity to a public official is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law. Barrientos’s argument amounted to nothing more than a request for review of the factual conclusions of the district court, a task which exceeded the scope of the Tenth Circuit’s jurisdiction on interlocutory review of the denial of qualified immunity.

Third, Barrientos argued the law was not clearly established that his actions violated the Fourth Amendment. The Tenth Circuit was not persuaded. Under the circumstances of the case, the Court had no trouble concluding Barrientos lacked probable cause to believe Dominguez posed a threat of serious harm to Barrientos or others at the time he fired shots two through seven. The Tenth Circuit further had no trouble concluding a reasonable officer in Barrientos’s position would have known that firing shots two through seven was unlawful.

Thus, the Tenth Circuit affirmed the denial of summary judgment by the district court.

Tenth Circuit: Child Died While in Foster Care–Denial of County Employees’ Motion to Dismiss Based on Qualified Immunity Affirmed

The Tenth Circuit published its opinion in Schwartz v. Booker on Wednesday, December 19, 2012.

After their son, Chandler Grafner, died while in the foster care of Jon Phillips and Sarah Berry, Chandler’s biological parents and Melissa R. Schwartz, personal representative and administrator of Chandler’s estate, filed suit against two human services departments and two Denver County Department of Human Services employees alleging, among other claims, a 42 U.S.C. § 1983 claim for violation of Chandler’s substantive due process rights. The two employees, Defendants-Appellants Margaret Booker and Mary Peagler, filed this interlocutory appeal from the district court’s order denying their Rule 12(b)(6) motion to dismiss on the basis of qualified immunity.

Qualified immunity protects governmental officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This doctrine balances the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. To survive a motion to dismiss based on qualified immunity, the plaintiffs must allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”  U.S. Const. amend. XIV. Section 1983 provides a private cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution.”  42 U.S.C. § 1983. Generally, state actors are only liable for their own acts, not for acts of private violence. One exception to this principle is the special relationship doctrine, which applies when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.

The Tenth Circuit has explicitly recognized that foster children have a substantive due process right to protection while in foster care. The special relationship triggers a continuing duty which is subsequently violated if a state official knew of the asserted danger to a foster child or failed to exercise professional judgment with respect thereto, and if an affirmative link to the injuries the child suffered can be shown.

Denver County Department of Human Services effectively exercised custody over Chandler. Defendants were aware of Chandler’s circumstances and were the custodial officials responsible for overseeing Chandler’s foster care case. Consequently, the Tenth Circuit was persuaded that plaintiffs sufficiently pled a custodial relationship between the State and Chandler to potentially hold Booker and Peagler individually liable under the special relationship doctrine. The district court correctly determined that plaintiffs sufficiently pled facts, when taken as true, show Booker and Peagler plausibly violated Chandler’s substantive due process right to be reasonably safe while in foster care, which right was clearly established at the time.

Accordingly, the judgment of the district court was AFFIRMED.


Tenth Circuit: In Death of a Child, Summary Judgment in Favor of Social Worker on Qualified Immunity Grounds Inappropriate

The Tenth Circuit published its opinion in The Estate of B.I.C. v. Gillen on Wednesday, December 19, 2012.

This case stems from the death of a minor child, 23-month-old Brooklyn Coons (“B.I.C.”) at the hands of her father’s girlfriend. Plaintiffs-Appellants, Larry and Mary Crosetto and the Estate of B.I.C., filed an action alleging that a social worker, Defendant-Appellee, Linda Gillen, created the danger that resulted in the death of their granddaughter and denied them their rights to familial association. The district court granted summary judgment in favor of Ms. Gillen on qualified immunity grounds. Plaintiffs appeal.

On appeal, Plaintiffs argue that qualified immunity was unwarranted on their state danger-creation and familial association claims.

Qualified Immunity

Qualified immunity protects government employees from suit, except those who are plainly incompetent or those who knowingly violate the law. A plaintiff may only overcome a government official’s immunity by showing first that the official violated the plaintiff’s federal statutory or constitutional rights, and that the rights in question were clearly established at the time of their alleged violation.

The Due Process clause of the Fourteenth Amendment protects an individual’s life, liberty, and property against government actions. Generally, it does not require the state to protect life, liberty, and property of its citizens against invasion by private actors. There are two exceptions to this rule.  First, state officials may be liable for the acts of private parties when the state has assumed a special relationship with and control over an individual. Second, state officials can be liable for the acts of private parties where those officials created the very danger that caused the harm. The Crosettos argue that the danger-creation exception applies here.

A showing of affirmative conduct and private violence are preconditions necessary to invoking the state-created danger theory. Here it is undisputed that B.I.C.’s death was caused by an act of violence by a private party. There is, however, a question as to whether there is sufficiently affirmative conduct on the part of the state in placing B.I.C. in danger. Mere negligence or inaction is not enough. A social worker who fails to act may be negligent but does not forfeit immunity when there is no affirmative action.

The Tenth Circuit held there remained an issue here as to whether Ms. Gillen purposefully, maliciously, and intentionally failed to act—therefore placing B.I.C. in harm’s way. The evidence viewed in the light most favorable to the plaintiffs indicates a deliberate decision to ignore. There were numerous, specific indications of abuse and a deliberate decision not to remove B.I.C. or respond in any way to the extensive evidence of abuse. A rational trier of fact could find that Ms. Gillen’s conduct went well beyond merely allowing unreasonable risks to persist, but was deliberate, affirmative conduct in light of her specific knowledge of real danger to B.I.C. These facts, taken in the light most favorable to the Crosettos, could constitute violations of due process rights at trial.

Familial Association

The Crosettos also claimed that their due process rights to familial association were violated by Ms. Gillen’s actions. In order to show deprivation of the right to familial association, a plaintiff must show that the state actor intended to deprive him or her of a specially protected familial relationship. Plaintiff must show that by specified acts and conduct, defendant intentionally, or with conscious disregard for plaintiff’s rights, deprived them of associational rights, with the qualification immediately following that specifically, Defendant knew, or should have known that by her actions, death was likely to occur, and the plaintiffs would be denied the companionship and association of the decedent. Because it was undisputed that Ms. Gillen had no specific intent to cause the death of B.I.C., the Crosettos’ familial association claims failed.

Accordingly, the Tenth Circuit REVERSED in part, holding that qualified immunity was not appropriate on the state danger-creation claim. The Tenth Circuit AFFIRMED summary judgment on the familial association claim.

Tenth Circuit: Officers Entitled to Qualified Immunity When Inmate Cut His Dreadlocks, Contrary to His Religious Beliefs; No RLUIPA Cause of Action Against Individual Officers

The Tenth Circuit published its opinion in Stewart v. Beach on Tuesday, December 18, 2012.

Mr. Stewart was an inmate at the Kansas Department of Corrections. In accordance with his Rastafarian religious beliefs, he did not cut or comb his hair, which he kept in dreadlocks. Stewart learned that his mother had been diagnosed with cancer.  To be closer to her, Stewart requested a transfer to the Lansing Correctional Facility. His request was granted. On the day of the transfer, defendant Officer Beach refused to allow Stewart to board the transport vehicle because he could not comb out his dreadlocks as was required as a security procedure. Beach consulted with her supervisor, defendant Wilson, who gave Stewart the choice of either cutting his hair or foregoing the transfer. Stewart eventually cut off his dreadlocks and was transferred to Lansing.

Stewart filed an action asserting that defendants forced him to choose between adhering to his religious beliefs and transferring closer to his ailing mother, and that this violated his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Beach and Wilson filed a motion to dismiss, which was granted on the ground that Beach and Wilson were entitled to qualified immunity. Stewart appealed.

Stewart argued that the officers were not entitled to qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In resolving a motion to dismiss based on qualified immunity, a court must consider whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of defendants’ alleged misconduct. The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

In the absence of controlling authority, the Tenth Circuit concluded that a constitutional right is clearly established if there is a robust consensus of cases of persuasive authority. From the Court’s survey of these cases, the most it could say was that defendants had warning that enforcement of the grooming policy might violate Stewart’s free exercise right. But the Court could not say that it was clearly established that their enforcement of the policy violated Stewart’s constitutional rights.  The Court therefore concluded that defendants were entitled to qualified immunity.

 Stewart further argued that his rights were violated under RLUIPA. The Act protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion. RLUIPA also provides a cause of action against a government. Since RLUIPA does not provide a cause of action against individual defendants in their individual capacities, the Tenth Circuit affirmed the district court’s dismissal of this claim.


Colorado Court of Appeals: Premises Liability Statute Specifically Provides Immunity to Mental Health Providers for Violent Behavior of Patients

The Colorado Court of Appeals issued its opinion in Marcellot v. Exempla, Inc. on Thursday, November 8, 2012.

Personal Injury—CRCP 12(b)(5) Dismissal—CRS § 13-21-117 Immunity.

In this personal injury action, plaintiff Melanna Marcellot appealed the judgment of dismissal in favor of defendant Exempla, Inc., doing business as Exempla West Pines (Exempla), a mental health hospital. The judgment was affirmed.

Marcellot, a psychiatric nursing educator, visited Exempla with three of her students. Before entering the Psychiatric Intensive Care Unit, she asked the nursing staff whether there were any patients who presented a safety risk to her or her students. She was told there were none. However, shortly after entering the unit, a patient assaulted her. Exempla knew that the patient presented a special risk.

Marcellot sued Exempla, alleging it had been negligent in failing to take reasonable steps to prevent the patient from harming her and in failing to provide adequate staffing. She also asserted a claim under the Premises Liability Act. Exempla moved to dismiss the general negligence claims, contending that the premises liability statute provided the exclusive remedy for Marcellot. The court granted the motion and that determination was not appealed.

Exempla then moved to dismiss the premises liability claim, asserting immunity under CRS §13-21-117. The trial court agreed and dismissed the claim. Marcellot appealed. She argued that §13-21-117 covers affirmative duties to act, but does not protect a mental health care provider from liability where incorrect information is provided in response to a direct question. The Court of Appeals disagreed. The statute specifically states that a mental health hospital “shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior,” unless there has been a specific threat against that third party. The Court found this plain language broad and all-encompassing. It precludes liability for failure to warn, as well as failure to protect any person.

The Court also rejected Marcellot’s contention that §13-21-117 does not apply to inpatients. If that were the case, the General Assembly could have so stated. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Confidential Informant Had No Basis to Challenge District Court’s Rulings When He Entered Unconditional Plea Agreement

The Tenth Circuit issued its opinion in United States v. John Doe on Friday, November 2, 2012.

John Doe agreed to be a confidential informant (CI) for the Longmont, Colorado, Police Department (LPD) to provide information on drug trafficking. As part of a written Agreement to be a CI, Doe had agree not to engage in criminal activity. On the strength of Doe’s information, an arrest was made after a cocaine pick-up and Doe was paid. According to Doe, the arrest raised suspicion. Doe told Detective Stephen Schulz he was going to have to start running cocaine to alleviate suspicion. Schulz told him he could not do that.

Although it is undisputed that there was no formal agreement of immunity, conversations took place where Doe understood he would have immunity if he was arrested. Doe continued to provide information to Schulz while also engaging in criminal activity. Doe was indicted in April 2009.

Doe plead guilty to two drug trafficking charges. Prior to the plea deal, he filed a motion to dismiss the indictment for breach of an immunity agreement and outrageous governmental conduct. First, he contended the government breached an immunity agreement that arose from his relationship with Schulz. He also argued the government’s conduct in encouraging his ongoing relationship with the organization and the crimes he committed to maintain his cover amounted to outrageous conduct, justifying dismissal of the charges. The district court denied the motion. Doe appealed.

On appeal, the Tenth Circuit considered two issues: (1) whether Doe waived his right to challenge the district court’s rulings when he entered an unconditional plea agreement, and (2) whether the government’s conduct nonetheless provided grounds to vacate the plea agreement and dismiss the indictment.

The Tenth Circuit held defendant had no basis to challenge the waiver of appeal in his plea agreement.

In the alternative, Doe argued that even if he waived his right to appeal, the government’s conduct here was so egregious, the Court should ignore the waiver and dismiss the indictment. The outrageous conduct defense is an extraordinary defense that will only be applied in the most egregious circumstances. It is not outrageous for the government to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity. In this case, Schulz persuaded Doe to serve as a CI because he was already involved with the organization—clearly not an inducement to create crime. It was at most an inducement to extend criminal activity, which is not prohibited.

Accordingly, the court AFFIRMED Doe’s conviction, DISMISSED his appeal, and GRANTED his motion to seal the briefs.

Tenth Circuit: Courts Must Accept Executive Branch’s Determination of Foreign Heads of State’s Immunity

The Tenth Circuit Court of Appeals issued its opinion in Habyarimana v. Kagame on Wednesday, October 10, 2012.

The widows of the former presidents of Rwanda and Burundi allege current Rwandan President Paul Kagame is responsible for their husbands’ deaths. The former presidents were killed when the plane they were in was shot down. This incident sparked the Rwandan genocide in 1994. The widows filed suit in Oklahoma federal court seeking to hold Kagame liable under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Act, 18 U.S.C. § 2340A, the Racketeeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962, and several other state and international laws. The executive branch of the United States filed a “Suggestion of Immunity” on behalf of President Kagame as a sitting foreign head of state. The district court dismissed the case based on this immunity. In affirming the district court, the Tenth Circuit held that a “determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff.” This is so even though the acts complained of occurred before Kagame was head of state.

Tenth Circuit: Hospital Immune Under Health Care Quality Improvement Act from Physician’s Claims; Record Insufficient to Support Physician’s Antitrust and Tort Claims

The Tenth Circuit Court of Appeals published its opinion in Cohlmia v. St. John Medical Center on Friday, September 7, 2012.

Plaintiff, Dr. George Cohlmia, a surgeon, performed two surgeries at St. John Medical Center (SJMC or hospital). One surgery resulted in death, the other in permanent disfigurement. After hospital review and formal hearing, SJMC suspended and ultimately terminated Dr. Cohlmia’s privileges. Before his initial suspension, Dr. Cohlmia explored opening a specialty heart hospital. The specialty heart hospital failed to attract any investors.

Dr. Cohlmia filed a complaint alleging violations of federal antitrust laws, violation of the Oklahoma state antitrust law, and tortious interference with a contract.

After discovery, SJMC moved for summary judgment on all claims, as well as its affirmative defense of immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The district court granted all motions for summary judgment. Dr. Cohlmia appealed.

On appeal, Dr. Cohlmia challenged the district court’s grant of HCQIA immunity.  HCQIA provides immunity to hospitals or doctors who perform peer reviews or challenges to professional conduct where patient care is at issue. The entity or persons that undertake the professional review are immune as long as they substantially comply with a list of objective standards set forth in the Act. A professional review action is presumed to have met the standards for HCQIA immunity unless the presumption of regularity is rebutted by a preponderance of the evidence. The district court concluded that no reasonable jury could find that Dr. Cohlmia had overcome the presumption. The Tenth Circuit agreed.

Having found that the hospital’s actions fell within the grant of immunity by HCQIA, the Tenth Circuit next determined the scope of that immunity. HCQIA grants immunity only against a monetary damage award. In his complaint, the doctor also sought injunctive relief and reinstatement of his staff privileges. Therefore, the Tenth Circuit was required to review the merits of the doctor’s federal and state claims.

Federal Claims

First, the doctor claimed that his exclusion from the marketplace resulted in an antitrust injury. The Tenth Circuit agreed with the district court’s assessment of the record that there was no credible evidence from which to infer an antitrust injury.

Second, the doctor argued the hospital had a sufficient market share to show monopoly power in violation of federal antitrust laws. The Tenth Circuit agreed that the hospital’s market share of less than 20% was woefully short under any metric from which to infer market power.

Dr. Cohlmia’s final federal claim alleged the hospital conspired to block his specialty heart hospital.  The Tenth Circuit found the doctor’s claims speculative at best, and agreed with the district court that granting summary judgment to the hospital was proper on this claim.

State Claims

Under the Oklahoma Antitrust Reform Act, it is unlawful for any person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or commerce in a relevant market.  Because the record did not support that the hospital had monopoly power, the doctor’s state law claim failed for the same reason his federal antitrust claim failed.

The doctor further argued the district court erred in dismissing his tortious interference with contract claims: patient contracts and insurance contracts. Since the relationship between physician and patient is at-will, there is no contract, so that claim failed. As to insurance contracts, Dr. Cohlmia failed to provide evidence of economic damages with Blue Cross/Blue Shield.  Accordingly, this claim failed as well.

Dr. Cohlmia’s finally claimed that the hospital wrongfully interfered with his medical practice. Because Dr. Cohlmia’s expert report relied on economic projections that were speculative at best, the district court did not err in concluding that state law required more evidence to support a damage award.

Based on the foregoing, the Tenth Circuit AFFIRMED the district court’s grants of summary judgment.

Colorado Supreme Court: CU Regents’ Termination of Churchill’s Employment Was a Quasi-Judicial Proceeding; Reinstatement Would Harm Academic Integrity

The Colorado Supreme Court issued its opinion in Churchill v. University of Colorado at Boulder on September 10, 2012.

Unlawful Termination Violating Free Speech Rights—42 USC § 1983—Absolute and Qualified Immunity—Quasi-Judicial Proceedings—Equitable Relief.

The Supreme Court affirmed the court of appeals and the trial court, both of which held that Professor Ward Churchill was not entitled to any of the remedies he sought. Churchill brought a claim under 42 USC § 1983, claiming that the University of Colorado at Boulder (CU) Board of Regents (Regents) opened an investigation into his academic integrity in retaliation for the publication of a controversial essay, and that the investigation and resulting termination of his employment violated his free speech rights.

The proceedings against Churchill took more than two years and included several opportunities for Churchill to present witnesses, cross-examine adverse witnesses, and argue his positions. The Court held that the Regents’ termination of Churchill’s employment was a quasi-judicial proceeding, and that the Regents are entitled to absolute immunity.

The Court also affirmed the trial court’s ruling denying Churchill request to be reinstated and to receive front pay. The trial court accepted as fact that the Regents’ investigation found that Churchill had plagiarized his academic writings, fabricated evidence, and violated the school’s academic standards. The trial court ruled that reinstating Churchill would not be appropriate because the relationship between Churchill and CU was irreparably damaged. Reinstating Churchill, the trial court ruled, would harm CU’s ability to enforce its standards of academic integrity and could impair CU’s ability to attract good students and faculty. The trial court’s rulings and findings did not constitute an abuse of its discretion and the rulings were affirmed.

Summary and full case available here.