CCA's long legal feud with a persistent critic reaches a semantic impasse in appeals court 

Bread and Circus

Bread and Circus

The Twinkie may be headed the way of dinosaurs and disco, but the concept of the Twinkie Defense seems as immortal as the mythically indestructible snack cake. An artifact of the 1979 San Francisco murder trial of Dan White, it survives as a rationale that the poisons of junk food are the real culprit: Your Honor, the preservatives in that fluffy, delicious yellow sponge are what made me kill.

If the Tennessee Court of Appeals rules against Corrections Corporation of America, now fighting an ongoing battle over the release of potentially damning court settlement records, legal scholars may have seen the birth of another foodstuff-based tactic: The Wonder Bread Argument.

Essentially, it means to bewilder a panel of justices with semantic distinctions.

The argument arose during roughly 60 minutes of oral argument Tuesday morning. It was the latest chapter in the long-running legal feud between Nashville-based CCA and Prison Legal News managing editor Alex Friedmann, a longtime prisoners' rights advocate. At issue is whether or not the private prison company qualifies as a public entity for the purposes of releasing settlement documents.

These documents contain the nature, date and amount of various cash awards paid to litigious prisoners, as well as others who have filed suit against as many as six CCA facilities in the Volunteer State for unknown abuses settled out of court. Friedmann, a staunch CCA critic and activist shareholder, filed suit in 2008 to expose the documents in the name of greater transparency, to keep tabs on whatever those settlements were settling.

Their legal war, however, stretches back to 2007, when Friedmann (under the auspices of his publication) requested a spate of settlement records that CCA routinely compiles on a monthly basis. The company refused, and Friedmann filed his original suit the following year. The Tennessee Supreme Court denied a request to hear the case and remanded it to trial court, where Friedmann won. He was awarded $27,000 in legal costs, which the company is trying to retrieve in its second, most recent appeal.

In court Tuesday, CCA attorney Jason Callen argued that the settlement records constituted private litigation, even though the settlements arose from its function as a government-contracted agency.

"What about food service?" asked Justice Richard H. Dinkins. If the company were sued for serving poisoned Wonder Bread products to inmates, Dinkins hypothesized, then should those documents relating to a lawsuit over poisoned inmates become public record?

Callen agreed, but countered that the Wonder Bread hypothetical did not fit the distinction between CCA's public and private roles. Instead, he argued that the introduction of a lawsuit creates a time differential that wrenches the classification from public (e.g., an offense like bread poisoning that occurs within the performance of duties) to private (e.g., a lawsuit later stemming from said poisoning).

Confused? So were most observers. Dinkins, along with Justices Patricia J. Cottrell and Frank G. Clement, appeared nonplussed.

"Your argument," asked Cottrell, "is that if it has to do with litigation, then it is not a government function," and therefore not covered by open records laws.

"Yes, your honor," replied Callen.

"Even though," Cottrell said, "litigation is a government function?"

Indeed, the contracts that municipal, county and state governments maintain with CCA stipulate that the company is required to represent those public entities in court and litigate on their behalf, as Callen admitted. But as Callen attempted to argue around this point, working a convoluted distinction between the phrases "in conjunction with" and "arising from," reporters on hand noted the bemusement of the judges and the amusement in the gallery. (Especially whenever Wonder Bread was mentioned.)

CCA members and counsel swiftly left the building before they could be reached for comment. Friedmann's counsel, Memphis attorney Andy Clarke, contends that the issue is a classic example of an equivalency test, whereby a private corporation, in the performance of public duties, is to be functionally considered a public entity — and hence subject to open records disclosure.

"Citizens have a right to [see how] government functions," Clarke said, adding that the increasing privatization of government functions, like sports authorities, presents a dilemma between what can be considered private or protected by attorney privilege, and what is available for public review.

But prisons, he says, are a different ballgame.

Regardless of the outcome, Friedmann says he expects the case to wind up at the doorstep of the Tennessee Supreme Court once again. Because the overwhelming majority of CCA's funding is public, and because that money is used to pay plaintiffs over a litany of unknown abuses per the undisclosed settlement documents, he says he has cause enough to see the fight to the end.

"Taxpayers have a right to know how their money is being spent," Friedmann says, "and if they're getting real value for their money."

Email editor@nashvillescene.com.

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