The Wagner case decision

This past February Paul wrote about the case of Teresa Wagner v. Carolyn Jones, Dean of the University of Iowa College of Law in this post. Like Paul, I had read Peter Berkowitz’s Wall Street Journal column over the previous weekend and noted that the oral argument in Ms. Wagner’s appeal was scheduled before the Eighth Circuit in St. Paul the following Thursday morning.

TaxProf Paul Caron picked up on Berkowitz’s column in this post. Collecting his previous posts on the case, Professor Caron noted the Eighth Circuit decision on appeal yesterday here.

I live across the river from the federal courthouse in St. Paul and thought I would attend the oral argument if my work schedule permitted, as it did. I attended the oral argument and spoke briefly with Ms. Wagner and her attorney on their way out of the courtroom afterwards. I posted my report here.

The Eighth Circuit decision on appeal holds in favor of Ms. Wagner, sending the case back to the district court in Davenport for a new trial. The Eighth Circuit also ordered the district court judge to “revisit” the jury instructions under which he had submitted Ms. Wagner’s claim to the jury. I thought it most likely following the oral argument that the Eighth Circuit would remand the case to the district court for additional findings. Contrary to my expectations, the Court’s decision is more or less a complete victory for Ms. Wagner.

The underlying facts of the case are outrageous. They are what made the case important and newsworthy. Professor Wagner sought a full-time position legal writing position at the University of Iowa College of Law after working there on a part-time basis. She was well known as a stalwart social conservative among the school’s faculty, which at the time numbered 49 Democrats and one Republican. The law school is overwhelmingly liberal. When she didn’t get the job and an inferior candidate did, she brought her lawsuit in federal court under section 1983, the statute that allows civil rights claims against state actors to be litigated in federal court.

Following trial the jury deliberated for a few days. The jury finally declared itself hung and was discharged by the federal magistrate judge (not the trial judge) who had been assigned to receive the verdict. Two minutes later he retrieved the jury and quizzed them on the verdict, asking if they had hung on both counts. Having ascertained that they found against Ms. Wagner on the first count, he had them sign off on a verdict adverse to Ms. Wagner on that count. Ms. Wagner has abandoned her claim on the second count.

The primary issue before the Court on appeal was entirely procedural. The substantive issue that Peter Berkowitz writes about was vindicated by the Eighth Circuit in its 2011 decision reversing the dismissal of Ms. Wagner’s case on summary judgment.

Ms. Wagner’s counsel argued that whether the jury had been discharged for two minutes or two days, the magistrate judge’s actions following discharge were improper. He sought reinstatement of the mistrial declaration and a new trial against the Dean (now the successor to Carolyn Jones, the original defendant). Examining two lines of federal cases involving discharged juries, the Eighth Circuit now holds “where a court declares a mistrial and discharges the jury which then disperses from the confines of the courtroom, the jury can no longer render, reconsider, amend, or clarify a verdict on the mistried counts.”

My favorite question during the oral argument was more of a statement, by Judge Beam. It came during the argument on behalf of the law school and was something like: “So, 49 Democrats and one Republican?” By political orientation, the Eighth Circuit panel of three judges was a mirror image of the law school faculty.

The powers-that-be at the University of Iowa might want to consider whether the law school can adequately prepare students to practice law under the tutelage of a faculty that so poorly represents the professional environment beyond campus. This is one argument for “diversity” that actually has some merit, but it’s obviously not what they have in mind when they recite the mantra.

Judge Beam wrote the opinion for the Eighth Circuit panel. He is from Nebraska. For reasons I explained in my original post, he is a personal hero of mine. The entire panel (including Judge Lavenski Smith of Arkansas and Judge Duane Benton of Missouri) was incredibly well prepared and on the button during the oral argument.

When I spoke with Ms. Wagner as we left the courtroom in St. Paul following the oral argument, she seemed happy and optimistic. Whatever the outcome of the appeal, I thought, she personally would prevail. As I did when we parted, I wish her all the best as she returns to court back home.

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