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Justices of the Texas Supreme Court agree that Judge Bascom Bentley III of the 369th District Court in Palestine was subjected to a torrent of harsh criticism and false accusations from the host of a cable television show who called the judge “corrupt.” Yet the $8 million jury award to the jurist might not stand. In one of three disparate opinions, a plurality of the eight justices who participated in Bascom W. Bentley III v. Joe Ed Bunton and Jackie Gates ordered the case sent back to the 12th Court of Appeals in Tyler, Texas, to reassess whether the damages awarded — $7 million for mental anguish and $1 million in punitive damages — were excessive. “Non-economic damages like these cannot be determined by mathematical precision; by their nature, they can be determined only by the exercise of sound judgment. But the necessity that a jury have some latitude in awarding such damages does not, of course, give it carte blanche to do whatever it will, and this is especially true in defamation actions brought by public officials,” Justice Nathan Hecht wrote in the Aug. 29 plurality opinion. Bunton and Gates maintained they did not defame Bentley, according to the Texas Supreme Court opinion. Gates, the co-host of the cable show, won a reversal of the defamation verdict against him at the 12th Court of Appeals. In the plurality decision, the Texas Supreme Court expressed concern about the size of the jury award. “Damage awards left largely to a jury’s discretion threaten too great an inhibition of speech protected by the First Amendment,” Hecht wrote. “This case is a prime example. The jury’s award of $7 million in mental anguish damages strongly suggests its disapprobation of Bunton’s conduct more than a fair assessment of Bentley’s injury.” The state supreme court, in addition to asking for a reassessment of damages, upheld the reversal of the verdict against Gates. “Although the issue is a close one, we hold that the evidence of Gates’s [sic] actual malice was not clear and convincing,” Hecht wrote. Even though the jury award against Bunton could be reduced, Mike Hatchell, one of Bentley’s lawyers, is happy about the bottom line. “I think Judge Bentley is delighted that his reputation has been vindicated,” says Hatchell of Tyler. Bentley was presiding over a trial last week and did not return two calls seeking comment before press time. Bunton, who represented himself pro se in the Texas Supreme Court appeal, says he investigated his allegations before making them and believed them to be true. He says he plans to file a motion for reconsideration with the high court and adds that the Texas Constitution gives individuals more protection from defamation suits than the U.S. Constitution. An attorney for Gates says his client did not defame Bentley and that the Texas Supreme Court agreed there was insufficient evidence to show that. “They didn’t meet the requisite element of proof,” Dallas attorney Armando De Diego says. De Diego represented Gates at trial and on appeal. A media law attorney who’s not involved in the case calls the decision significant. “Any libel ruling that upholds a jury verdict for the plaintiff when the plaintiff is a public figure is worthy of note,” says James A. Hemphill, a partner in George & Donaldson in Austin. “This might be the first time that the Texas Supreme Court has ever upheld the finding of constitutional actual malice involving a public figure.” “Actual malice” means the defendant either believed the statements were false or had significant doubts about whether they were true, according to the opinion. The possibility that the jury award could be reduced is not surprising, Hemphill says, because the amount assessed has to have a relationship to the damages. In Bentley’s case, most of the money was awarded for mental anguish rather than for damage to reputation, Hemphill says. Professor David Anderson of the University of Texas School of Law in Austin, a specialist in torts and mass communications law, says the hardest part of a defamation case is evaluating whether actual malice can be shown in a combination of facts. In many cases, plaintiffs will point to one piece of evidence to try to prove there was actual malice, he says. In Bentley, the judge used a lot of facts to argue he had been defamed, Anderson says. “I guess the headline is that a plaintiff can win after all,” the professor says. FALSE ACCUSATIONS Hecht’s opinion gives the following account of the case: Bunton helped start a live call-in cable television program called “Q&A” in 1990, which broadcast to cable subscribers around the Palestine and Elkhart areas in Anderson County. Bunton, a native of Palestine, Texas, who had returned home after college and 15 years in the U.S. Army, began hosting “Q&A” in 1994. In 1995, Bunton began criticizing some of Bentley’s judicial decisions and eventually compiled a list of eight matters that he alleged demonstrated “corruption at the courthouse” in Anderson County, according to the Texas Supreme Court opinion. On one show, Bunton reported that Bentley had threatened to sue for defamation based on a June 6, 1995, program, Hecht wrote. “In fact, Bentley did not sue until almost eight months later.” Jackie Gates, a retired U.S. Air Force colonel, first appeared on “Q&A” on July 11, 1995, as a guest and later appeared as a co-host. According to the high court’s opinion, Gates was present on “Q&A” when Bunton made some of his allegations; however, Gates never used the word “corrupt” in referring to Bentley, although there was evidence that he expressed agreement with Bunton’s accusations. Despite Bunton’s claims made on the show that court records backed him up, the accusations levied at Bentley were false, Hecht wrote. “In sum, the evidence not only supports but conclusively establishes that Bunton’s charges that Bentley was corrupt were utterly and demonstrably false as a matter of law,” Hecht wrote, adding that Bunton offered no evidence whatsoever to the contrary. In February 1996, Bentley sued Bunton, Gates and others involved in “Q&A.” The case went to trial a year later before Judge John Hill of the 3rd District Court in Palestine. Bentley, who had been appointed to the bench in 1989 and then elected for the first time in 1990, testified that he had not incurred any monetary loss, but offered testimony about the damage to his reputation and the mental stress he suffered, Hecht wrote. When Bentley rested his case-in-chief, Hill directed a verdict for all the defendants except Bunton and Gates. At the close of evidence, Hill granted Bentley’s motion for a partial directed verdict that Bunton’s accusations of corruption and criminality were defamatory per se, according to the Texas Supreme Court opinion. The jury found that Bunton published defamatory statements with “actual malice” and with “malice”; that Gates agreed with those statements with “actual malice” and with “malice”; and that the two defendants conspired to publish defamatory statements about Bentley, Hecht wrote. The jury found that Bunton’s conduct caused Bentley to suffer $150,000 in damages for past and future loss of character and reputation and $7 million in damages for past mental anguish, and that Gates’ conduct caused Bentley to suffer $25,000 in damages for past and future loss of character and $70,000 in damages for past mental anguish, according to Hecht. The jury also assessed punitive damages of $1 million against Bunton and $50,000 against Gates, the opinion noted. The trial judge refused to hold the two jointly liable for all the damages, according to the Aug. 29 opinion. The defendants appealed from the judgment, and Bentley appealed the denial of joint liability. The 12th Court of Appeals affirmed the judgment against Bunton but reversed the judgment against Gates, Hecht wrote. The high court also noted that the 12th Court of Appeals concluded that the defendants were not jointly liable as co-conspirators because Bentley did not request a jury finding on what damages were caused by the conspiracy itself and the evidence failed to establish conclusively that all damages caused by Bunton were attributable to the conspiracy. Bentley and Bunton petitioned for review by the Texas Supreme Court. Justices Priscilla Owen, Wallace Jefferson and Xavier Rodriguez joined Hecht in the plurality opinion. Chief Justice Thomas Phillips, joined by Justices Craig Enoch and Deborah Hankinson, concurred in part and dissented in part. Phillips agreed that Gates should not be held liable for defamation but wrote that Bentley had failed to prove by clear and convincing evidence that Bunton made the defamatory statements with actual malice. “Looking at the record as a whole, I find much evidence, not dependent on Bunton’s credibility at trial, suggesting that he believed his charges were true and that he did not recklessly disregard the truth or falsity of his charges,” Phillips wrote. “Bunton’s specific allegations were made after extensive, if not very effective, research.” The U.S. Constitution protects speech about public officials unless it is provably false and made with either knowledge of its falsity or serious doubt as to its truth, Phillips wrote. Justice James Baker, in a dissenting opinion, said, “Because whether damages are excessive and whether a remittitur is appropriate are factual determinations that are final in the court of appeals, this Court lacks jurisdiction to review such findings, consider excessive damages complaints, and suggest remittiturs … .” “The Court’s writing is nothing more than an epistle of the First Amendment Gospel according to Justice Hecht, the effect of which is to transmogrify Texas law about reviewing mental anguish damages awards in defamation cases. I would hold that there is clear and convincing evidence to support the jury’s findings that Gates and Bunton acted with actual malice in defaming Bentley. And, because the jury found Bunton and Gates were co-conspirators, I would impose joint and several liability for the damages the jury awarded.” Justice Harriet O’Neill did not participate in the decision.

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