The U's attempt to get out from under a $1 million award in the basketball coach's aborted hiring brought questions from the bench.
The University of Minnesota's general counsel ran up against pointed questioning Thursday during state Supreme Court oral arguments in the appeal of a $1 million jury award to Jimmy Williams over his aborted hiring by men's basketball coach Tubby Smith.
"It's pretty hard to defend the actions of the university here," Justice G. Barry Anderson told general counsel Mark Rotenberg.
The university is appealing a state Court of Appeals decision in 2011 that upheld a Hennepin County jury's $1 million award to Williams, a former and would-be Gophers assistant basketball coach.
The jury determined that Smith negligently misrepresented his authority to hire Williams in 2007. After Smith offered him the job, Williams resigned a similar post at Oklahoma State and prepared to start recruiting immediately for Minnesota. But Gophers Athletic Director Joel Maturi vetoed the hiring of Williams, leaving him unemployed.
Five jurists heard arguments for more than an hour Thursday with Justices Helen Meyer and Christopher Dietzen dominating most of the aggressive questioning of Rotenberg and Chuck Spevacek, who represented Williams.
Only five justices will decide the case after four others recused themselves, likely because of ties -- or perceived ties -- to the university. Not on the bench: Chief Justice Lori Skjerven Gildea and Justices Paul H. Anderson, Alan Page and David Stras. Joining Meyer, Dietzen and G. Barry Anderson on the case were retired Supreme Court Justice Esther Tomljanovich and Otter Tail County District Judge Waldemar Senyk.
Rotenberg's argument was two-pronged. First, he cited the "century-old bedrock principle" against awarding damages from a governmental entity when a personnel decision is made "on reliance of an authority" who doesn't have the authority.
He also argued that "negligent misrepresentation" can't be applied between an employer and a prospective employee.
Meyer and Dietzen pressed Rotenberg with seeming skepticism for the majority of his first 30 minutes of arguments. Among Meyer's questions: "Does public policy preclude any action against an employer when the employer negligently misrepresents they have the authority to make a job offer?"
Rotenberg said that it "depends on how the case is pleaded."
Dietzen asked Rotenberg for his "best argument" as to why Smith lacked authority to hire Williams, wanting to know if there is a "public document readily available" that would support that claim.
Rotenberg said there is a "general understanding" that the authority rests with the athletic director.
Dietzen also pressed Spevacek on why the justices should allow damages to be collected against a governmental entity for "negligent misrepresentation."
Spevacek said there's no reason not to, but Dietzen said that wasn't sufficient. Spevacek countered that it was "incumbent on the university to show why it should not be applied."
When Rotenberg returned for his 10-minute rebuttal, Meyer asked, "What is the public policy that favors insulating an employer that says, 'I have the authority to hire'" when he doesn't?
Rotenberg said that allowing such claims would "open a Pandora's box" of lawsuits against employers.
In the final word, G. Barry Anderson said the case provided some "interesting wrinkles" and that "there's no law against continuing settlement discussions" between Williams and the university.
Rotenberg said later there had been no discussions between the parties for months. Williams' trial lawyer, Donald Chance Mark Jr., said the university never offered a serious settlement.
The court took the case under advisement and faces no deadline for a ruling.
Williams recently landed a job as an assistant coach at Memphis.
Rochelle Olson • 651-925-5035 Twitter: @rochelleolson