DISTRICT COURT, DENVER COUNTY, COLORADO

DISTRICT COURT, DENVER COUNTY, COLORADO

1437 Bannock Street Denver, CO 80202 720-865-8301 ____________________________________ Plaintiff(s): WARD CHURCHILL

Defendant(s): UNIVERSITY OF COLORADO and BOARD OF REGENTS OF THE UNIVERSITY OF COLORADO, a body corporate ____________________________________ Patrick T. O'Rourke #26195 Special Assistant Attorney General Office of University Counsel 1800 Grant Street, Suite 700 Denver, Colorado 80203 303-860-5691 303-860-5650 ? fax Patrick.orourke@cu.edu

_____________________________ Case Number: 06 CV 11473

REPLY BRIEF IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF LAW

QUASI-JUDICIAL IMMUNITY

The University of Colorado and the Board of Regents of the University of Colorado hereby submit their reply brief in support of their Motion for Judgment as a Matter of Law.

Introduction The University filed its Motion for Judgment as a Matter of Law on the grounds that the Regents are entitled to quasi-judicial immunity when performing the adjudicative function of dismissing a faculty member who has violated the minimum standards of professional integrity. In response, Professor Churchill relies upon a series of legal and factual arguments that do not, in any way, strip the Regents of quasi-judicial immunity. Quasi-judicial immunity precludes the Court from granting either monetary damages or injunctive relief in Professor Churchills favor.

Argument I. Professor Churchill Confuses Eleventh Amendment Immunity and

Quasi-Judicial Immunity Professor Churchill first argues that the University is not entitled to quasi-judicial immunity because the University has waived its Eleventh Amendment immunity. The University concedes that it has waived its Eleventh Amendment immunity, but Professor Churchills response mistakenly assumes that Eleventh Amendment immunity is the same thing as quasi-judicial immunity. They are separate immunities. As its very name implies, Eleventh Amendment immunity stems from the Eleventh Amendment to the United States Constitution. The Eleventh Amendment to the United States Constitution reads:

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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. The Eleventh Amendment represented the national response to the United States Supreme Courts decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), which allowed a non-consenting state to be sued under the diversity jurisdiction of federal courts. Because allowing such suits was antagonistic to the balance of power between the states and the federal government, the states ratified the Eleventh Amendment shortly after Chisolm to restore their sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 10 (1890). For more than a century, the Supreme Court has reaffirmed that federal jurisdiction over suits against non-consenting States "was not contemplated by the Constitution when establishing the judicial power of the United States." Hans, 134 U.S. at 10; Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). Notably, however, the Eleventh Amendment prohibits only suits against the states themselves, while still allowing suits against state officials acting in their individual capacities and lesser governmental authorities, such as counties and municipalities. See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (determining that Eleventh Amendment immunity does not apply to state officials sued in their individual capacities); Monell v. New York City Department of Social Services, 436 U.S.658, 691 (1978) (determining that municipalities are not "arms of the State" entitled to claim Eleventh Amendment immunity).

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At its core, the Eleventh Amendment proscribes who may be sued in federal court or subjected to federal claims - - with the answer being that "arms of the State" enjoy Eleventh Amendment immunity. Because the University of Colorado and its Board of Regents are "arms of the State," they may claim the Eleventh Amendments protections against federal claims. Hartman v. Regents of the University of Colorado, 22 P.3d 524, 527-29 (Colo. App. 2000); Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989); Smith v. Plati, 258 F.3d 1167, 1171 (10th Cir. 2001). Eleventh Amendment immunity does not depend upon the nature of a governmental officials actions, it turns entirely on whether the suit is lodged against an "arm of the State."

In contrast, judicial or quasi-judicial immunity does not ask whether the suit is directed against an "arm of the State." Instead, quasi-judicial immunity examines the type of action giving rise to the claim. If the government official performs a judicial action, he is immune from liability, even if he cannot claim Eleventh Amendment immunity. See e.g. Williams v. Valencia County Sheriff's Office, 33 Fed. Appx. 929, 2002 WL 532426, *3 (10th Cir. 2002) (determining that a county court clerk was entitled to quasi-judicial immunity for carrying out duties of office); Harrison v. Gilbert, 148 Fed. Appx. 718, 2005 WL 2284266. *2 (10th Cir. 2005) (determining that a county attorney was entitled to claim judicial immunity); Boyce v. County of Maricopa, 144 Fed. Appx. 653, 2005 WL 1939919, *1 (9th Cir. 2005) (determining that county probation officers preparing pretrial reports were entitled to judicial immunity).

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The United States Supreme Courts leading cases extending judicial and quasi-judicial immunity did not conduct any type of Eleventh Amendment analysis. Pierson v. Ray, 386 U.S. 547, 554 (1967) (recognizing that judicial immunity is a product of the common law, not the Eleventh Amendment); Butz v. Economou, 438 U.S. 478, 511 (1978) (determining that administrative law judges were entitled to quasi-judicial immunity "not because of their particular location within the Government but because of the special nature of their responsibilities"). The Colorado Supreme Court similarly recognizes judicial immunity and quasi-judicial immunity as a matter of state law separate and apart from Eleventh Amendment considerations. State v. Mason, 724 P.2d 1289, 1290-91 (Colo. 1986) (determining that state parole board members are entitled to judicial immunity); State Board of Chiropractic Examiners v. Stjernholm, 935 P.2d 959, 969 (Colo. 1987) (determining that members of the Board of Chiropractic Examiners are entitled to quasi-judicial immunity for licensing decisions made in adjudicative capacity).

II. The University and Board of Regents are Entitled to Claim Quasi-Judicial Immunity Professor Churchill next asserts that quasi-judicial immunity is a defense available to individuals, not a defense available to the University or the Board of Regents. Ordinarily, hed be correct in his assertion, but he misses the mark because of a pre-trial agreement between the parties. Professor Churchill agreed that the University would be able to raise defenses that would normally be available only to individuals.

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