"The extent of the punitive judgments is staggering ... it seriously is crippling (for CCPOA)," Michael Berger told 9th Circuit Court of Appeals Judges Andrew J. Kleinfeld, Jay S. Bybee and District Judge Roger T. Benitez. on Thursday.
Berger made his arguments for CCPOA in Dawe, et al. v. Corrections USA, et al. a federal defamation case brought by businessman Brian Dawe and another man, Gary Harkins against the union and an affiliated organization. A federal jury awarded them $12 million after finding union officials had defamed them. Judge Lawrence Karlton, who heard the case in Sacramento, lowered the award to $5 million, then ordered CCPOA to post property and cash as collateral during its appeal.
The union has made five quarterly deposits into a court-controlled account, $2,500,000 total so far.
Attorney Dan Baxter, who represents Dawe and Hawkins and also argued before the court on Thursday, asked the appellate court overturn Karlton's decision to reduce the award.
CCPOA wants the 9th U.S. Circuit Court of Appeals to overturn the decision because, it says, the trial court judge shouldn't have let the jury consider some written communications made by union officials to members about Dawe, his business, Flat Iron Mountain, and Harkins, who the jury found also was defamed.
The court and the attorneys spent quite a bit of time discussing CCPOA emails and Civil Code 47.doc, which defines legally-privileged communications -- in this case emails that called into question the honesty and business practices of the plaintiffs. Berger contended that the emails enjoy absolute protection under the law and shouldn't have been allowed into the trial.
Baxter disputed all of those assertions.
The union also argued in court filings that Karlton erred by ruling that Dawe was not a public figure. Public figures have to prove that a defamatory statement about them is made with "actual malice." In other words, to win a defamation lawsuit, public figures have to prove that whoever made the statement knew it was false or made it with reckless disregard for whether it was true.
Look for a ruling from the three-judge panel in about a year -- perhaps longer.
Final briefs filed in CCPOA lawsuit appeal; court hearing next
CCPOA ordered to post property, deposit cash during appeal
Court filings reveal more CCPOA financial details
CCPOA appeals judgment, asks to use property as collateral
Read the court order reducing punitive damages in CCPOA case
Read correctional union official's testimony about spending, revenue