Planned Parent v. Coalition, Life Activists

• Decision Date: 06 September 2005
• Docket Number: No. 04-35214.,04-35214.
• Citation: 422 F.3d 949
• Parties: PLANNED PARENTHOOD OF the COLUMBIA/WILLAMETTE INC.; Portland Feminist Women's Health Center; Robert Crist, M.D.; Warren M. Hern, M.D.; Elizabeth Newhall, M.D.; James Newhall, M.D., Plaintiffs-Appellees, v. AMERICAN COALITION OF LIFE ACTIVISTS; Advocates for Life Ministries; Michael Dodds; Timothy Paul Dreste; Joseph L. Foreman; Bruce Evan Murch; Donald Treshman; Charles Wysong; Michael Bray; Andrew Burnett; David Crane; Charles Roy McMillan; Catherine Ramey; Dawn Marie Stover, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.3d 949

PLANNED PARENTHOOD OF the COLUMBIA/WILLAMETTE INC.; Portland Feminist Women's Health Center; Robert Crist, M.D.; Warren M. Hern, M.D.; Elizabeth Newhall, M.D.; James Newhall, M.D., Plaintiffs-Appellees, v. AMERICAN COALITION OF LIFE ACTIVISTS; Advocates for Life Ministries; Michael Dodds; Timothy Paul Dreste; Joseph L. Foreman; Bruce Evan Murch; Donald Treshman; Charles Wysong; Michael Bray; Andrew Burnett; David Crane; Charles Roy McMillan; Catherine Ramey; Dawn Marie Stover, Defendants-Appellants.

No. 04-35214.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2005.

Filed September 6, 2005.

COPYRIGHT MATERIAL OMITTED

Edward L. White III, Thomas More Law Center, Ann Arbor, Michigan, for Bray, Burnett, Crane, McMillan, Ramey, and Stover, defendants-appellants, and Christopher A. Ferrara, American Catholic Lawyers Ass'n., Fairfield, NJ, for American Coalition of Life Activists, Advocates for Life Ministries, Dodds, Dreste, Foreman, Murch, Treshman and Wysong, for the defendants-appellants.

Maria T. Vullo, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-95-01671-REJ.

Before FERNANDEZ, RYMER, and KLEINFELD, Circuit Judges.

RYMER, Circuit Judge.

American Coalition of Life Activists and thirteen others (collectively, ACLA)¹ appeal the decision of the district court on remand that the $108.5 million in punitive damages awarded by a jury in 1999 for violations of the Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. § 248, comports with due process. Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 300 F.Supp.2d 1055 (D.Or.2004) (PPCW VII).² We disagree, and remit to an amount for each defendant to pay to each plaintiff that does not exceed the constitutional limit. ACLA also raises a number of issues that pertain to the liability judgment, which the rule of the mandate precludes us from considering.

I

On October 26, 1995, four individual physicians and two clinics³ brought an action against ACLA for violating or conspiring to violate FACE⁴ and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. The facts are fully described in the district court's post-trial opinion, PPCW III, 41 F.Supp.2d at 1131-53, and our en banc opinion, PPCW V, 290 F.3d at 1063-1066. In sum, physicians alleged that ACLA had engaged in "a campaign of terror and intimidation" by targeting them with three specific threats — the "Deadly Dozen GUILTY" poster, the "Crist" poster, and the "Nuremberg Files." The "Deadly Dozen GUILTY" poster identified Hern and the Newhalls among ten others; the Crist "GUILTY" poster contained Crist's name, addresses, and photograph; and the "Nuremberg Files" was a compilation about those who the ACLA anticipated one day might be put on trial for crimes against humanity. The posters identifying these physicians were circulated in the wake of a series of "WANTED" and "unWANTED" posters that had identified other doctors who performed abortions and who were murdered after the "WANTED" and "unWANTED" posters were circulated.

The jury found for physicians on all counts except against Bray and Treshman on the RICO claims (ACLA was alleged to be the RICO enterprise and was not a defendant on this claim). It awarded Crist $39,656 in compensatory damages under FACE; Hern, $14,429; E. Newhall, $15,797.98; J. Newhall, $375; PPCW, $405,834.86; and PFWHC, $50,243.30, for a total of $526,336.14. The jury grouped defendants into different tiers for purposes of exemplary damages: ACLA and ALM were each found liable to Crist for $2.25 million; to Hern for $1.5 million; to E. Newhall for $2 million; to J. Newhall for $2 million; to PPCW for $6 million; and to PFWHC for $3 million. Bray, Burnett, Crane, McMillan, Treshman and Wysong were each found liable to Crist for $1 million; to Hern for $1 million; to E. Newhall for $1 million; to J. Newhall for $1 million; to PPCW for $2 million; and to PFWHC for $2 million. Dodds, Dreste, Foreman, and Murch were each found liable to Crist for $750,000; to Hern for $750,000; to E. Newhall for $750,000; to J. Newhall for $750,000; to PPCW for $1 million; and to PFWHC for $1 million. And Ramey and Stover were each found liable to Crist for $500,000; to Hern for $500,000; to E. Newhall for $500,000; to J. Newhall for $500,000; to PPCW for $750,000; and to PFWHC for $750,000. RICO damages were awarded in varying amounts and were trebled pursuant to statute. A chart summarizing the damages award appears in Appendix I. Following trial, the district court made extensive findings and ordered permanent injunctive relief. PPCW III, 41 F.Supp.2d at 1131-53, 1155-56.

ACLA appealed the judgment, which this court affirmed on rehearing en banc in all respects but for punitive damages. PPCW V, 290 F.3d at 1088. ACLA argued that the punitive damages award amounted to a judgment without notice contrary to BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). As we had recently discussed this issue in depth in In re Exxon Valdez, 270 F.3d 1215, 1241 (9th Cir.2001), we remanded for the district court "to consider in the first instance whether the award is appropriate in light of Exxon Valdez." PPCW V, 290 F.3d at 1086.

On remand, the district court held that the jury's compensatory awards were joint and several. It determined that ACLA's threats of violence were at the top of the hierarchy of reprehensibility, that a high ratio of punitive damages to compensatory damages was warranted because of particularly egregious conduct that resulted in injury that is difficult to quantify, and that the awards against each defendant were not excessive when compared to the civil penalties available for each violation of FACE. Therefore, it upheld the punitive award in its entirety. The district court denied a new trial and declined to consider additional issues raised by ACLA as beyond the scope of the mandate.

ACLA timely appealed.

II

ACLA argues that "the preposterous $109 million award" must be vacated and the punitive damages claim must be dismissed for failure to comply with any of the guideposts the Supreme Court laid out in BMW. Further, it submits that its conduct was a first offense that consisted of nothing more than publishing political communications for which liability was imposed without proof of reprehensibility by way of specific intent to threaten. Even if the verdict is not reversed, ACLA maintains that compensatory damages must be deemed sufficient punishment as the defendants cannot pay even that award and the injunction serves the aim of punishment and deterrence. It also contends that the punitive damages at most should not exceed the comparable civil penalties under FACE.

Physicians support the award by urging that a threats case is the type of case that falls at the top of the hierarchy of reprehensibility. They argue for a ratio analysis that, like the district court's, focuses on defendants' responsibility for damages.

The Supreme Court has considered the constitutional limits of punitive damages three times in the last ten years, first in BMW v. Gore, next in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), then in State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). A number of principles emerge. Compensatory damages and punitive damages serve different purposes; compensatory damages redress concrete loss caused by the defendant's wrongful conduct, while punitive damages are aimed at deterrence and retribution. See State Farm, 538 U.S. at 416, 123 S.Ct. 1513; Cooper Indus., 532 U.S. at 432, 121 S.Ct. 1678. "Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty" that may be imposed. BMW, 517 U.S. at 574, 116 S.Ct. 1589. Accordingly, "[t]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." State Farm, 538 U.S. at 416, 123 S.Ct. 1513. Whether an award comports with due process is measured by three guideposts:

(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Id. at 418, 123 S.Ct. 1513 (citing BMW, 517 U.S. at 575, 116 S.Ct. 1589).

We are obliged to review de novo the district court's application of the BMW guideposts to a jury's punitive damages awards. State Farm, 538 U.S. at 418, 123 S.Ct. 1513; Cooper Indus., 532 U.S. at 431 121 S.Ct. 1678. "Exacting appellate review ensures that an award of punitive damages is based upon an `application of law, rather than a decisionmaker's caprice.'" State Farm, 538 U.S. at 418, 123 S.Ct. 1513 (quoting Cooper Indus., 532 U.S. at 436, 121 S.Ct. 1678, quoting BMW, 517 U.S. at 587, 116 S.Ct. 1589 (Breyer, J., concurring)). Of course, we defer to the district court's findings of fact unless they are clearly erroneous. Cooper Indus., 532 U.S. at 440 n. 14, 121 S.Ct. 1678; Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 285 F.3d 1146, 1150 (9th Cir.2002).

We start with BMW and post-BMW authorities to see how the due process analysis has played out in other cases, and to shed light on what might be deemed excessive in this particular case.

In BMW, a disgruntled new car owner brought an action against several defendants for their failure to disclose that the automobile he purchased had...