Conflicted Court’s Tech Loyalty Trumped Leach

After digesting the 24-page opinion made Thursday by the 7th Circuit Court of Appeals in its ruling against Mike Leach’s wrongful termination lawsuit against Texas Tech, it’s clear the conflicted court didn’t have the stomach to rule against its beloved Texas Tech.

Tech-friendly court trumped Leach's claim

(Court that ruled against Leach schooled at Texas Tech)

All four 7th Circuit judges matriculated at Texas Tech, with one justice, Mackey Hancock, a registered donor (pdf) to the Red Raider Club. (The primary fundraising arm for Tech athletics.)

Then there’s 7th Circuit Chief Justice Brian Quinn, who authored the court’s opinion that threw out Leach’s appeal. Quinn, an adjunct Texas Tech faculty member (pdf), is a former longtime partner at the prominent Lubbock law firm, McWhorter, Cobb & Johnson. That same law firm made multiple contributions to current Texas Tech Chancellor Kent Hance’s past run for a Senate (pdf).

It is a widely held belief that Leach’s personality conflict with Chancellor Hance contributed to the coach’s firing.

But if the court was indeed in the bag for Tech, why was Thursday’s judgment against Leach conflicted? One only read the rhetoric employed by Chief Justice Quinn in his written opinion to recognize the acute ambiguity of the decision.

Texas Tech’s argument in its appeal was that Leach’s breach of contract claim was invalid because of the State of Texas’ “sovereign immunity” law.

In short, contractual sovereign immunity protects the state of Texas from breach of contract claims between a private party and the state. The law asserts that state institutions, like Texas Tech, cannot be sued in such cases regardless of the circumstances of an employee’s dismissal.

Yes, you read that correctly.

So in its argument to the 7th Circuit, Texas Tech claimed that a contract written and executed by Texas Tech was unenforceable. (In its ruling against Leach, the 7th Circuit Court of Appeals agreed.)

Yes, you read that correctly.

Not surprisingly, in his written opinion, 7th Circuit Chief Justice Quinn was pained in the explanation of the court’s decision.

Some small examples from Quinn’s opinion:


Given the nature of the issues at bar, it is helpful to delve into the history underlying the doctrine of sovereign immunity. The latter found its genesis in old England. Then, as most will admit, the king (or queen as the case may be) was omnipotent. No inherent authority belonged to those over whom he lorded. Rather, any rights or privileges they enjoyed were no greater than those the monarch deigned to bestow on them.

Moreover, the judiciary that he created not only recognized this relationship between the king and his people but also deduced from it that since the former was sovereign over all, the latter could not be sue him without his approval.

Thus, the tenet was of neither legislative nor executive origin. Instead, judges simply declared it to be law.

Indeed, the constitutional passage written above purports to encapsulate that sentiment. Nonetheless, not all things British were rejected for our own courts adopted much of the common law developed overseas. And, included in that body of law was the doctrine of sovereign immunity. So, though we have no king and despite the words of article 1, §2 of our Texas Constitution, the government (e.g., State, county, and municipalities) and those working for it in their official capacities came to enjoy that created to protect monarchs so many years ago.


Some may think it ironic that sovereign immunity remains viable given the wording of our Texas Constitution. Again, it mandates that “[a]ll political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” (emphasis added). Thus, true sovereignty lies in the people of Texas, not the government they created.


That the State is not acting as a sovereign (but rather a private party) when withholding money due under a contract but nonetheless enjoys immunity from suit for withholding that money because it is deemed the sovereign is somewhat of a contradiction. No doubt there is a reasonable explanation for the apparent inconsistency, and the [Texas] Supreme Court is in the best position to explain it.

Clearly the 7th Circuit Court of Appeals kicked the can down the road - to the Texas Supreme Court - as Chief Justice Quinn noted the Texas high court was “in the best position to explain it.”

By doing so, the court ruled that any contract between a private party and a Texas state institution, from the state of Texas’ perspective, is not binding.

Yes, you read that correctly.

That’ll teach Leach to sign a contract in a state which still enforces laws derived from England’s medieval times.

Or perhaps a majority of the nine Justices of the Texas Supreme Court, of whom only one has Texas Tech ties, will see things differently.

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