Boehner Presses for Damages

Posted April 7, 2004 at 5:41pm

Lawyers for Rep. John Boehner (R-Ohio) told a federal judge hearing his long-running lawsuit against Rep. Jim McDermott that a recent legal ruling out of Colorado supports his claim for punitive damages against the Washington Democrat for leaking a tape of a 1997 cell phone conversation among then-House GOP leaders.

The notice by Boehner marked the first activity in 14 months in a case that just passed its sixth anniversary of being on the docket.

While U.S. District Chief Judge Thomas Hogan indicated he wanted to wrap up the case in late 2002, the judge has been silent ever since final briefs were filed in February 2003. Lawyers on both sides say they don’t even know whether Hogan wants to hear oral arguments or if he will rule solely on the voluminous written briefs.

“There’s been a relatively inexplicable lack of action in this case,” Michael Carvin, Boehner’s lead attorney, said this week.

In addition to pointing out a recent ruling out of the 10th U.S. Circuit Court of Appeals, Carvin also offered to skip oral argument as a gesture to speed up the process, according to a brief, two-page motion filed last month.

“In light of the long passage of time since the summary judgment briefing, Congressman Boehner also wishes to clarify that he is willing to forego oral argument in the interest of expediting resolution of the pending motions,” Carvin wrote.

He also cited a recent ruling that affirmed a $7.5 million punitive damage award in a case that found a violation of the law barring electronic eavesdropping.

A three-judge panel for the 10th Circuit ruled that the imposition of punitive damages depends upon whether the defendant knew or recklessly disregarded the risk that he was violating the statute, rather than whether he thought he had a good reason for breaking the law.

The 10th Circuit also made clear that the First Amendment is not a shield from punitive damages.

Boehner is seeking unspecified punitive damages against McDermott, which makes the case between two sitting lawmakers unprecedented, according to historians.

Carvin argued that the 10th Circuit ruling, which the Supreme Court last month declined to review, “provides further support for the imposition of substantial punitive damages against the defendant in this case.”

In response, Frank Cicero, McDermott’s attorney, told the court that Boehner’s attorneys misread the Colorado ruling and that the decision actually strengthens their argument that the First Amendment protects McDermott.

Cicero argued that the facts of the two cases are different and that the Colorado case dealt with intercepted conversations among private individuals, not publicly elected officials.

Boehner sued McDermott in March 1998 for violating his privacy after the contents of a tape of a conference call discussing the strategy for handling the closure of former Speaker Newt Gingrich’s (R-Ga.) ethics investigation appeared in three newspapers. McDermott admitted in court papers in 2002 that he provided the tape to reporters but has argued that the First Amendment protected his actions.

Boehner’s complaint charged that McDermott, then the ranking member on the ethics committee, violated committee confidentiality rules by providing the tape to reporters.

The case, which Hogan dismissed initially in 1999, has traveled up and down the court system. After Hogan’s dismissal, an appeals court reinstated the case and sent it back to Hogan.

The two lawmakers have spent hundreds of thousands of dollars raised by contributors on their legal teams. Boehner and McDermott entertained brief settlement talks in the summer of 2002 but McDermott refused to admit that his actions were wrong, an admission that Boehner insists he must make if the case is to be settled.