The Wagner case oral argument

Paul writes about the case of Teresa Wagner v. Carolyn Jones, Dean of the University of Iowa College of Law in the adjacent post. I too had read Peter Berkowitz’s Wall Street Journal column over the weekend and noted that the oral argument in Ms. Wagner’s appeal was scheduled before the Eighth Circuit in St. Paul on Thursday morning. TaxProf Paul Caron picked up on Berkowitz’s column in this post.

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 yesterday morning and spoke briefly with Ms. Wagner and her attorney on their way out of the courtroom afterwards. Here is my brief report.

The underlying facts of the case are outrageous. They are what made the case important and newsworthy. Professor Wagner sought a full-time 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, as Peter Berkowitz notes, 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.

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. (I believe that Ms. Wagner has since dismissed the second count.) The Chronicle of Higher Education reported on the outcome of the case at trial here.

If you want to understand the case before the Eighth Circuit, you have to read two opinions. Both opinions are available online. These opinions are: 1) the Eighth Circuit’s 2011 decision in the Wagner case, resulting in the trial (it is posted here), and 2) the 44-page district court opinion following the trial (William Jacobson has posted it here). Having sat through the oral argument yesterday, I have the following stray observations.

The issue before the Court at this point is almost entirely procedural (with a Sixth Amendment overlay). 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 seeks reinstatement of the mistrial declaration and a new trial against the Dean (now the successor to Carolyn Jones, the original defendant). Ms. Wagner’s counsel has also raised an issue regarding the jury instructions, but it didn’t draw a single question and I don’t think it will play in the outcome of the appeal.

The university’s counsel is out of the Iowa Attorney General’s office. His argument was essentially a minute by minute account of the events leading up to the verdict that Ms. Wagner seeks to set aside. One of the judges wryly asked counsel during the argument if he was offering his testimony on the events.

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?”

Judge Beam is a personal hero of mine. He wrote the 1997 opinion for the Court sitting en banc in Burnham v. Ianni, a section 1983 free speech case in the university setting. John and I represented the plaintiffs in the case. We had lost 2-1 before a somewhat screwy panel. (The oral argument was certainly screwy.) I think the 1 was Judge Beam, whose dissent persuaded the entire Court to rehear the case after the adverse panel decision. When they did, we won 10-2, and Judge Beam’s opinion is, I think, actually an important case. It certainly represented the best day I ever had in court when I was in private practice.

The other two judges on the panel in Ms. Wagner’s appeal (Smith and Benton) are similarly good for Ms. Wagner. All three are Republicans. Judge Smith was on the panel that decided the first appeal in favor of Ms. Wagner. Judge Benton was incredibly thoughtful and well prepared. The panel on this appeal presents a sort of mirror image of the University of Iowa law school faculty.

My impression is that the best Ms. Wagner will come away with from the Court this time around is an order remanding the case to the district court for additional findings. I think it is less likely that the Court will reverse the district court decision outright and order a new trial than that it will affirm the district court. Of the three possibilities, my guess is that remand is the most likely.

When I spoke with her yesterday, Ms. Wagner seemed happy and optimistic. Whatever the outcome, she personally will prevail. All I can say is that I wish her the best, as I did when we parted.

UPDATE: I should have noted that via this page on the Eighth Circuit site, you can find audio of the oral argument in the Wagner appeal posted here. If you have any interest in the case, you may want to listen to it yourself.


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