A federal judge on Tuesday ordered Universal Elections and its owner, Julius Henson, to pay a total of $1 million to the state for violating federal law by sending recorded telephone messages to more than 112,000 Democrats in Baltimore city and Prince George’s County on Election Day 2010 saying they should “relax” because the Democrats had already “taken it back.”
Judge Catherine C. Blake also ordered Henson’s employee, Rhonda Russell, to pay $10,000 in granting summary judgment in the state’s civil lawsuit in U.S. District Court in Baltimore.
The defendants’ attorney, Edward Smith Jr., said he will appeal.
“We’ll go down to Richmond, there’s no doubt,” Smith said, referring to the 4th U.S. Circuit Court of Appeals. “We’ll continue to fight this.”
But Attorney General Douglas F. Gansler said in a statement that “voter suppression in Maryland will not be tolerated. The court’s opinion and damages award will hopefully make political consultants think twice before using these types of illegal dirty tricks again.”
Gansler originally sought $168 million in damages in the lawsuit, in which he alleged that Baltimore-based Universal Elections, Henson and Russell violated the federal Telephone Consumer Protection Act by engaging in robocalling without disclosing the company’s identity and telephone number.
Gansler alleged the defendants orchestrated the robocalls to help the campaign of former Gov. Robert L. Ehrlich Jr., for whom they worked under contract, and who was vying to regain his old seat from incumbent Gov. Martin O’Malley.
In his motion for summary judgment, Gansler reduced his request for damages to $10.4 million.
Blake, in awarding damages, called Gansler’s proposed damages award “disproportionate to the size of the company and the defendants’ presumptive ability to pay.”
Instead, she held Henson and Universal Elections “jointly and severally liable for a damage award reduced to approximately one-tenth of the state’s request — $1 million.”
Blake added it would be “inequitable and unreasonable” to hold Russell, an employee, equally liable as her boss and ordered damages of $10,000.
The summary judgment ruling follows Henson’s conviction earlier this month on one count of conspiracy for his part in the Election Day calls. Henson faces sentencing on June 13 that could land him a maximum of one year in jail or a $1,000 fine.
Smith, who was also Henson’s criminal attorney, has said he intends to move for a new trial in that case.
Henson’s co-conspirator, Ehrlich’s campaign manager Paul E. Schurick, was convicted in December of attempting to fraudulently influence registered voters not to go to the polls; of sending robocalls without an “authority line” to inform voters the calls were made at the Ehrlich campaign’s behest; and of conspiring with Henson to accomplish both goals.
Schurick was sentenced to 30 days of home detention, a one year suspended jail sentence and 500 hours of community services in Baltimore and Prince George’s County. He has said he intends to appeal.
Russell was granted immunity from criminal prosecution in return for her testimony in Schurick’s Henson’s trials.
Blake’s memorandum opinion cited “unambiguous” and “undisputed evidence” tying Universal Elections, Henson and Russell to conduct that violated the TCPA.
“While Henson refused to answer any questions about his conduct, the documentary evidence in the record and the deposition testimony of Russell and the Ehrlich staffers establish without any doubt that Henson discussed plans to suppress the votes of African-American Democrats, recorded the plan in the strategy memo sent to the Ehrlich campaign, and ultimately dictated and authorized the offending message,” Blake wrote. “Thus, both Henson and Russell, in addition to Universal Elections, may be held jointly and severally liable for any damages this court may award under the TCPA.”
Henson, in testimony in the civil case, had invoked his constitutional privilege against self incrimination, as the criminal case was still pending. Blake said that in a civil suit, a judge or jury is entitled to infer culpability.
“Here, Henson’s refusal to answer basic questions about his knowledge corroborates the reasonable infrerence that he had knowledge of the relevant TCPA regulations through his extensive campaign experience,” Blake wrote. “Combined with the other evidence, including Russell’s deposition testimony, this leaves no genuine dispute that Henson knowingly and willfully violated the statute.”
Smith found it unfair that Blake used Henson’s privilege against self-incrimination against him.
“The man could not defend himself while he was in a criminal trial,” said Smith, a Baltimore solo practitioner.
“It’s kind of like holding and hitting,” he added. “It’s an interesting situation when you can assert your rights and then have them used against you.”
$500 per violation
According to Gansler’s lawsuit, the calls were made before polls closed on Nov. 2, 2010, and told recipients, “Hello. I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We’re OK. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you.”
Each violation of the TCPA carries a $500 penalty. The 112,000 violations Gansler alleged would have brought that figure to $56 million. Under the law, damages can be tripled, which would have brought the potential award to $168 million, under Gansler’s original complaint filed in November 2010.