Friday, August 21, 2009

CU answers Wart's appeal--er--"notice to amend"

Devastating, in my non-lawyerly opinion. JWP, who has it, has his fave quote; here's mine:
[P]rofessor Churchill next reargues his belief that the Court’s Order is inconsistent with the jury’s finding that Professor Churchill was harmed by the University’s actions. What he cannot escape, however, is the fact that the jury’s finding of harm did not quantify the harm in any manner. Instead, the best understanding of the extent of any harm that befell Professor Churchill is reflected in the jury’s award of damages shortly after the Court issued the following instruction: If you find in favor of the plaintiff, but do not find any actual damages, you shall nonetheless award him nominal damages in the sum of one dollar.” Court’s Response to Jury Question 1 (emphasis added).
One Yankee dollar.
The jury’s verdict and award of nominal damages ultimately “signif[ies] that the plaintiff's rights were technically invaded even though he could not prove any loss or damage.” . . . Where the jury’s award necessarily indicates that Professor Churchill failed to establish any actual economic or non-economic damages, the Court appropriately followed the United States Supreme Court’s clear statement that “nominal damages, and not damages based upon some undefinable ‘value’ of infringed rights, are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.” . . .

Try as he might, Professor Churchill has been unable to escape the jury’s award of nominal damages and continues to be unable to cite a single case indicating that a trial court should grant equitable relief in the absence of any actual damages. It naturally follows that a Court should not grant prospective equitable relief in the absence of actual damages, rather than a technical violation that the jury has declined to compensate through an award of economic or non-economic damages.

Perhaps recognizing that the jury’s actual verdict does not support his position, Professor Churchill has solicited an affidavit from one of the jurors, in which she attempts to recast the verdict in her own terms. With all due respect and appreciation to Ms. Newill for her service on the jury, Professor Churchill knows that Colo. R. Evid. 606(b) categorically prohibits this type of collateral attack.

Rule 606(b) states that “a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. . . A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.” (emphasis added) Rule 606(b)’s “exclusionary principle reaches everything which relates to the jury’s verdict, unless one of the exceptions applies.” Stewart v. Rice, 47 P.3d 316, 321 (Colo. 2002). No exception applies to Ms. Newell’s affidavit and Professor Churchill does not offer any.

Applying these principles, the Colorado Court of Appeals even prohibited a juror from submitting an affidavit stating that the other jurors had yelled at her and coerced her into reaching a particular verdict. People v. Ferrero, 874 P.2d 468, 474 (Colo. App. 1993). As the Colorado Supreme Court noted less than a year ago, “Colorado does not allow verdict by affidavit.” People v. Richardson, 184 P.3d 755, 765 (Colo. 2008).
Yelled at her. There's all kinds of stuff about official capacity and all that, too. I'll let RacetotheBottom explicate all that happy crappy (which they haven't yet).

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