Saturday, August 30, 2014

The James Crowley Lawsuit: Chicago State's Laughable Legal Arguments

“[T]here was no evidence presented to suggest the Defendant's actions were done by mistake or inadvertence. In fact, any reasonable fact finder would be quite convinced by the evidence that Defendants went out of their way to crush the Plaintiff.” James McCarthy, “Memorandum Opinion,” August 28, 2014, 31.

"Narcissistic self-celebration is a strong correlate of organizational dysfunction." Polish Peter comments on this post:

Take a look at the material on the James Crowley lawsuit then compare it to the continual celebration of Wayne Watson on the university's website.

This morning, I found on this website, a copy of the request for a new trial filed by Chicago State in the wake of the February-March decision in favor of James Crowley. It is replete with formatting errors and other problems, but I have no reason to doubt its authenticity. Since this document forms the basis for Judge McCarthy’s recent opinion, it is worth examining. What it reveals is alarming.

Here is a summary of the factual events undergirding the Crowley lawsuit: Although ordered to break the law and withhold public documents available under the Freedom of Information Act by Wayne Watson in August 2009, James Crowley refused to do so. The following month, Crowley went to the Attorney General’s Office with complaints about the university’s irregular financial and contract practices. In August, when Watson threatened Crowley and ordered him to withhold the public documents, he had not officially begun his duties as Chicago State’s president and thus should have not been involved in FOIA or other decisions. In response, Crowley defied him and acted in the best interests of the institution and the taxpayers of Illinois. Although dealing with the Attorney General’s Office can be a less than satisfying experience (as I can confirm since I have been involved with the Office of the Executive Inspector General as a witness and more recently as a complainant about ethical violations committed by Wayne Watson here at Chicago State), Crowley’s exposure of potential ethics violations afforded him “whistleblower” protection.

In February 2010, Wayne Watson fired James Crowley for cause. Instead of sending Crowley a “notice of intent” to terminate as required by Board regulations, the letter indicated that the termination was “effective immediately.” Apparently not satisfied with firing Crowley Patrick Cage (almost assuredly with Watson’s approval) filed a complaint against Crowley with the Illinois Attorney Registration and Disciplinary Commission. Although the investigation conducted by that body revealed no basis for disciplinary proceedings, Cage’s actions hampered Crowley’s ability to find a job as an attorney.

In the trial, all the jury found all these facts to be true, resulting in a huge award for Crowley. However, the university disputed the verdict and retained outside counsel to assist them in their efforts to obtain a new trial. Their arguments were: 1) “The Ethics Act(§ 15-25) does not authorize the award of punitive damages as a remedy”; 2) “If the Act does authorize punitive damages there was no evidence presented to the jury of actual malice or if there was such evidence it was erroneously admitted by the Court”; 3) “The Illinois Rules of Professional Conduct ban retaliatory discharge claims by inhouse counsel under the Ethics Act as a matter of law “; 4)“If in-house counsel can sue under the Ethics Act, no reasonable jury could have found that Plaintiff proved that the decision maker who terminated him knew of Plaintiff's meeting with the Attorney General's Office and therefore, that meeting was not a contributing factor in their termination decision”; 5) “Plaintiff produced no evidence to support a claim against Defendant Watson in his individual capacity.”

Just in case those arguments fell flat, the university threw out a few more:
In the alternative, Defendants moved for a New Trial based on the following arguments: 1) “There is no right to a jury trial under the Ethics Act and therefore the Court improperly delegated its fact finding function to the jury;” 2) “If the Act permitted a jury trial, the case was not tried before an impartial and unbiased jury as evidenced by a particular juror's failure to disclose past and pending lawsuits during voir dire and said lawsuits were a statutory impediment to the prospective juror sitting as a member of the jury”; 3) “The Court committed prejudicial error by admitting certain evidence and exhibits during the course of the trial; 4) “The Court committed ‘plain’ error by allowing two alternate jurors to deliberate with the jury and to sign the verdict form in violation of 735 ILCS 5/2-1106(b ).”

In addition to the demand for a new trial, the university “also moved for a Remittitur of the punitive damage award as well as a Remittitur of the award of double back pay.” So this shotgun motion for a new trial included assertions that punitive awards were not permissible, unless they were, in which case there was no malice proven; also that the plaintiff had no right to a jury trial, unless he did, in which case the jury was biased; as in-house counsel, Crowley had no right to sue, unless he did, in which case neither Cage nor Watson knew he had gone to the Attorney General’s Office; the court erred repeatedly; no evidence proved Watson’s culpability. Judge McCarthy found none of those arguments compelling.

Here are some of the highlights from the university’s motion:

“this Court should grant a new trial because there was no right to a jury trial under the Ethics Act and this Court impermissibly delegated its fact-finding function to the jury.” Then: “Even if the Act permitted a jury trial, this case was not tried before an impartial and unbiased jury.” Then: “the punitive damages awarded against the Board for $2,000,000 must be vacated because section 15-25 of the Ethics Act does not authorize punitive damages as one of the remedies for a violation of the Act.” Then this: “In the alternative, even if section 15-25 can be read to authorize punitive damages, the award must be vacated because there was no evidence of actual malice to support the award returned by the jury, and the ONLY EVIDENCE OF MALICE THAT COULD HAVE ARGUABLY SUPPORTED AN AWARD WAS ERRONEOUSLY ADMITTED.” So there was malice? Continuing on: “just as common law retaliatory discharge claims by in-house counsel against their employers are barred altogether as a matter of Illinois law, the same must hold true with respect to statutory claims by in-house counsel whose conduct is governed by the Illinois Rules of Professional Conduct.” But, “if in-house counsel could maintain a claim under the Ethics Act, no reasonable jury could have found that Plaintiff proved that the decision-maker(s) who were involved in his termination knew that he had met with the AGS Office, and for that reason the meeting was not a contributory factor in his termination.” Finally: “Plaintiff produced no evidence at trial to support a claim against President Watson in his individual capacity as his duty to sign Plaintiffs notice of intent to terminate existed solely by virtue of his state employment.”

Since this is Chicago State’s legal argument, there is a considerable amount of cynicism, innuendo and just plain sleaze. Here’s the university’s discussion of the post-termination complaint Patrick Cage filed with the ARDC, evidence CSU claims should not have been admitted into evidence. “The Defendants were unfairly prejudiced by evidence admitted over their objection arising from the request for ARDC investigation by Patrick Cage.” After all, Cage agonized over the requested “investigation,” but, “Cage testified he filed the request after he consulted with Judge Bernetta Bush (retired), the University’s Ethics and Diversity Officer and Special Counsel to the President, and determined that his ethical obligations required him to do so.” It is not difficult to imagine that conversation. Here is what seems a reasonable assumption for the jury to make, exposed unintentionally in the university’s response: “The jury could have only understood the evidence that the ARDC did not proceed meant the request for investigation itself was improperly motivated, as evidence of retaliatory animus, and prejudicial. This is especially true because a jury of lay people could not be expected to understand the differences between an ARDC “investigation” and a charge or complaint.” Pity those poor stupid jurors. Of course, this elides the question of how one “requests” an “investigation” without having some allegation or complaint as the request’s foundation.

There are some gems in the part about the university’s failure to follow established personnel policy in Crowley’s case. “[T]his Court permitted Plaintiff to introduce evidence that he did not receive a hearing regarding his termination and argue that this was evidence of retaliatory animus.” The university also complained that “[t]he introduction of evidence about the alleged defects in the termination procedures plainly prejudiced Defendants. Plaintiff made this a central focus of his case, discussing it in both his opening statement and closing argument in detail and calling [Renee] Mitchell as an adverse witness in his case to highlight it as well.”

The university’s argument in favor of the elimination or reduction of the punitive damages is priceless: Here, the university seems to admit that its employees committed misconduct: “As noted in Section supra, punitive damages imposed on a government entity are disfavored as a matter of public policy because such awards effectively punish taxpayers who have no control over the misconduct of public employees.” It gets better, here the university waxes hyperbolically about the potential effects of this kind of award: “Allowing a $2,000,000 punitive award to stand creates real potential for a 'stampede to the courthouse' an 'intolerable' situation that would threaten to bankrupt the state and unfairly punish its citizens.” Then there is this: “Plaintiff, and the consequences would be felt by innocent Illinois taxpayers and blameless college students.” It is nice to see the university so concerned about the welfare of Illinois taxpayers and Chicago State students. Perhaps Watson should have considered this before acting like a character in a third-rate Mafioso film.

Given the strong desire of this administration to continue its myriad unethical and even corrupt practices and given the Board’s unwillingness to confront the real issues facing Chicago State, it seems inevitable that the school will throw even more money away on this charade—this unconscionable defense of an utterly failed president and his administration.

As a final note, I have heard from some of my colleagues that things here are not much different from the way they are at other universities. Really? I would be interested to know how many other universities have been hammered financially because of misdeeds by the president or how many other universities have a newly-minted (and fraudulent) recipient of the Ph.D. as Provost, how many other universities condone lying by high-level administrators on resumes or applications or how many other university faculties suffer the agony of consistent incursions by the president into areas in which he possesses no expertise? Or for that matter, how many other universities have a president with such a pitiful and inadequate C.V.? Just wondering.


  1. Holy legal explanations Batman. Are you implying that the hundreds of thousands of dollars spent on external legal counsel in this case was misspent and this merry band of advocates was simply applying something to a wall to see what stuck? Shouldn't the university get its money back for such poor representation or maybe this is part of the pinstripe patronage of this failed administration.

  2. Oh My! Pity that Blind pinworm cage has no backbone & can't stand tall & speak the truth. Oh My, how pathetic a retired judge is such a loser she Cheapens & disgraces her name re "advised" inferior slime ball cage to Lie to ARDC about Crowley.....retire this inferior and Morally bankrupt female to somewhere she belongs---in a medically induced coma.

  3. I could have sworn that CSU's m̶o̶u̶t̶h̶p̶i̶e̶c̶e̶ spokesperson, Tom Wogan, told the Chicago Tribune that the entire Crowley award would be covered by insurance, and so would cost the taxpayers of Illinois nothing! If that's the case, why did CSU make the cost to taxpayers the basis for its appeal of the amount of the award? Could Wogan have been lying?