Crime doesn't pay.

February 20, 2007 11:03 AM

Tighter restrictions on damage awards.The two questions presented to the U.S. Supreme Court centered on whether or not the highly reprehensible conduct of a defendant is analogous to a crime and can "override" the constitutional requirement that punitive damages be reasonably related to the plaintiffs harm. The answer is no. (21 page pdf) Held: 1. A punitive damages award based in part on a jury’s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. The majority: Roberts, Alito, Kennedy, Souter, and Breyer. Dissenting: Ginsburg, Scalia, Stevens, and Thomas.
posted by three blind mice (37 comments total)

Interesting split.
posted by Blazecock Pileon at 11:08 AM on February 20, 2007

I think this is right. Victims not party to the action have their own remedies; allowing the jury to in effect convert any lawsuit into a representative suit would be chaotic and circumvent the protections of the class action system.
posted by grobstein at 11:17 AM on February 20, 2007

(Haven't read the opinion, so excuse the foregoing if it turns out to be horribly ignorant)
posted by grobstein at 11:18 AM on February 20, 2007

The decision does seem to squeeze one of the usual rationales for awarding punitive damages, though, which is the idea that if only 1 / r victims of some harmful behavior bring suit, and compensatory damages for a given victim are k, the actor will need to pay rk total damages ((r - 1)k punitive) to each victim who sues in order to bear the full cost of the harmful behavior. It sounds like awarding punitive damages for that reason might be unconstitutional. Fortunately, people are vindictive and likely to award plenty of punitive damages without a reason other than moral disapproval.
posted by grobstein at 11:35 AM on February 20, 2007

Interesting split.

Seriously. Cuts directly across the usual liberal/conservative divide on the court. Now to go read the opinion!
posted by moss at 11:52 AM on February 20, 2007

Dissenting: Ginsburg, Scalia, Stevens, and Thomas.

Don't see that group too often.
posted by pardonyou? at 11:53 AM on February 20, 2007

What a horrible decision.

The matter should have been disposed of on a more limited grounds.

The threshold question on any appeal is standing. There has to be a legal right to an appeal. This case had to do with the Jury Charge, and is an appeal of a trial court's rulings regarding the Jury Charge. In this case, the threshold question is whether the Appellant objected and preserved error upon which an appeal can be taken.

As the dissent notes:

"The Court’s order vacating the Oregon Supreme Court’s judgment is all the more inexplicable considering that Philip Morris did not preserve any objection to the charges in fact delivered to the jury, to the evidence introduced at trial, or to opposing counsel’s argument."

Federal Rule of Civil Procedure 51(b)(2) requires that the court must give parties an opportunity to object to the charge on the record and outside the jury's hearing before the charge is given. Objections not made are waived. See Johnson v. U.S., 520 U.S. 461, 467 (1997). The exception to that rule is that a court may consider a plain error in the instructions even if no objection is made. Fed. R. Civ. P. 51(d)(2).

So the question on appeal should begin with the issue of whether the Appellant preserved error. As the dissent notes, it did not. Thus the question is whether it is a plain error to instruct the jury that they may find punitive damages. I wholly to fail to see how the instruction could have been plain error. The majority opinion denies to address the "excessive" argument, and focuses only on the Due Process Argument. In doing so, the Majority fashions a new rule with regards to the due process requirements for punitive damages that was not present in the existing framework that the Court was operating under. Se State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424 (2001); BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996). As the trial court was operating under the framework established by the Supreme Court, it cannot be that is was plain error for them to instruct the jury as it did.

And since there is no plain error and no preserved objection, the appeal should have been disposed on the narrow grounds of standing without further complications to the punitive judgment morass. Instead the Court ignored the narrow grounds and made the already unworkable punitive damage rules more impossible to apply according to neutral prinicples.
posted by dios at 11:59 AM on February 20, 2007 [1 favorite has favorites]

That Scalia & Thomas joined the dissent probably only indicates their restrictive view of Constitutional due process. That'd be good for these plaintiffs, but not so good for other folks trying to get constitutional protections down the line.
posted by footnote at 12:02 PM on February 20, 2007

This discussion of the split is silly. The assumption here that there is a lock-step divide in the Court which always results in predictable splits has been misguided to begin with. Although it does make me happy to see the split because it frustrates the usual people who want to come opine on the opinions based on nothing more than how their side is right and the other side is clearly wrong. They can't define their side in this case, so they are left without a target to direct their outrage towards. It's quite humorous.
posted by dios at 12:05 PM on February 20, 2007 [1 favorite has favorites]

Err . . . Fed. R. Civ. P. 51 applies only in federal district courts. This case arose in the Washington state courts.
posted by Slap Factory at 12:05 PM on February 20, 2007

Err . . . Fed. R. Civ. P. 51 applies only in federal district courts. This case arose in the Washington state courts.
posted by Slap Factory at 2:05 PM CST on February 20

Well, you are certainly correct. But I'm certain that every state court in the country has a similar rule. I'll go find it if will make you happy.
posted by dios at 12:07 PM on February 20, 2007

I admit I find Breyer's core distinction a bit odd: it's okay for a jury to consider harm to non-parties when it decides how reprehensible the conduct is, and then to set punitive damages based on that determination of reprehensibility; it's not okay for a jury to set punitive damages to punish harm to non-parties. I can make some sense of the difference, but the question remains: what is a jury doing when it punishes an actor for conduct that's reprehensible by virtue of harm to non-parties if not punishing for harm to non-parties?

I don't think the answer that conduct that "pose[s] a substantial
risk of harm to the general public" (opinion at 7) should be punished is a satisfying one, because it's hard to explain why such conduct should be punished except for the actual harm it causes.

(On preview, I haven't read the dissent but agree that's pretty damning)
posted by grobstein at 12:09 PM on February 20, 2007

Here it is.

Rule 805.13(3).

(3) INSTRUCTION AND VERDICT CONFERENCE. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.

So, in fact, the States' rule is even more limiting than the federal rule because it does not have the plain error instruction.
posted by dios at 12:13 PM on February 20, 2007

I'm really off today. First I miss that this wasn't in federal court, then I somehow come up with Wisconsin.

Here is Oregon's Rule 59. (Hopefully 3rd time's a charm).

God. I give up, today.
posted by dios at 12:19 PM on February 20, 2007

Although it does make me happy to see the split because it frustrates the usual people who want to come opine on the opinions based on nothing more than how their side is right and the other side is clearly wrong.

I'm guessing you weren't sniping at right-wingers when you made that snipe, even though the brilliant legal analysis from RedState right now is literally "hah-hah! We win!" because people who don't like smoking = TEH LIBRAL!!!

Also- man, dios. You really make it hard to keep focus on the relevant and useful legal analysis when you drop in comments like that. You have some bizarre obsession with snarking against comments people haven't made yet. Just stop.
posted by XQUZYPHYR at 12:26 PM on February 20, 2007 [1 favorite has favorites]

I believe that the people who are harping on the punitive issue (not necessarily MeFites) are missing the point here. It appears to my untrained eye, the issues were more due process and standing. The Thomas side justices are not opposed to punitive damages or limits on their sizes, per se.

Am I off the mark?
posted by Benny Andajetz at 12:50 PM on February 20, 2007

The assumption here that there is a lock-step divide in the Court which always results in predictable splits has been misguided to begin with.

Except, of course, when the Supreme Court is predictable about the important stuff.
posted by Blazecock Pileon at 12:51 PM on February 20, 2007

Dios: No need to get defensive. I was picking nits and not disputing the idea that unpreserved claims of error are waived if not plain. I am one of the Metafilter lurkers who admires you and enjoys reading your posts. That is why I corrected you. Because I expect more from you.

I still think that your analysis is off, as a legal and factual matter. First, whether a claim of error is preserved is not a question of "standing," especially with respect to certiorari review, where standing has a specific, Article III or prudential meaning. There is no question that the PMI had standing to seek review of the Washington Supreme Court's decision (which had already been granted, vacated, and remanded in the wake of the State Farm v. Campbell decision in all events).

Second, this was not an "appeal" that had to be resolved on the narrowest possible, state-law procedural grounds. It was a petition for certiorari review on a constitutional question, so once the Court granted cert and assured itself of jurisdiction, there was no legal or prudential reason for the Court not to decide the issue that they had granted cert to resolve.

Third, on the facts, PMI offered and was refused a jury instruction, and that was enough under Oregon law to preserve the error. Br. of Petitioner at 4. The dissent might point to a later failure to object as a color point, but even the dissenters understand that supposed waiver of objection under state law procedures (that was not relied upon by state Supreme Court under review) would not be grounds for dismissing the petition as improvidently granted.
posted by Slap Factory at 12:56 PM on February 20, 2007

This discussion of the split is silly. The assumption here that there is a lock-step divide in the Court which always results in predictable splits has been misguided to begin with.

That's exactly why I found the split so interesting--it's a refreshing reminder that the court isn't just an ideological machine. I wasn't OMG SHOCKED, I was just pleased to see such a clear example. Also, though people tend to exaggerate it, the liberal/conservative divide on the court is at least a real statistical tendency [see also: source paper, further analysis], so it's interesting to see a case where it so thoroughly fails to apply.

On preview, I guess I'm also supposed to call you a retard or something when making this argument, but I can't really be bothered.
posted by moss at 12:57 PM on February 20, 2007 [1 favorite has favorites]

I agree with the decision, but I don't think the Court should have granted certiorari to begin with.
posted by spaltavian at 1:06 PM on February 20, 2007

Spaltavian: but I don't think the Court should have granted certiorari to begin with.

I should restate, since I haven't done much research: but I'm not sure the Court should have granted certiorari to begin with.
posted by spaltavian at 1:09 PM on February 20, 2007

Y’know, this actually reminds me of a joke from Richard Pryor (not just ‘cos of the title).
He used to talk about when he was working clubs and some of them were owned by organized crime. One of those stories is on an album about how they laughed at him when he tried to stick them up. Apparently he went back to one of the clubs after he had become a big star and they all went out to dinner. So Pryor is going to pick up the tab for dinner and the mob guys say “no, kid forget about it.” And Pryor protests - he says he’s famous now, and has millions of dollars, etc. etc. and he can pick up the tab. And they say “Yeah, kid, you’re a big shot now, but you’re a movie guy. Us, we’re crime.” and the mob guys tear up the check and say “And crime don’t pay.”

It occurs to me that in the same way, the people who aren’t interested in due process, etc. etc. - the truly reprehensible bastards - won’t be ponying up any money for punative damages anyway.
posted by Smedleyman at 1:20 PM on February 20, 2007

Dios: In baseball there are two rules:

1. The Umpire is always right.
2. If the Umpire is wrong, see rule #1.

In US Law, we also have two rules:

1. SCOTUS is always right.
2. ...

Well, I think you can guess what rule #2 is.

(Yes, I'm joking.)
posted by Steven C. Den Beste at 1:26 PM on February 20, 2007

In US Law, we also have two rules:

1. SCOTUS is always right.
2. ...

Well, I think you can guess what rule #2 is.

(Yes, I'm joking.)
posted by Steven C. Den Beste at 4:26 PM EST on February 20

Well, that's just silly. SCOTUS is only right to the extent that any holding is limited to its facts. However, you'll note that no two cases ever have the same facts.

This case is part of a growing trend of limiting and checking the power of juries, nothing more. From a legal standpoint, this case means nothing as it will simply motivate attorneys to set cases up as class actions which could easily result in compensatory damages equal to the punitive damages in this case.

In reply to grobstein's comment above, I would answer that juries are punishing the D for conduct against the P that is morally/ethically reprehensible but not illegal but which aggravates the underlying tort.
posted by Pastabagel at 1:57 PM on February 20, 2007

Dios has an important point about reviewability. While it may be true that preservation of error is only a matter of prudential standing for Supreme Court review of federal cases, it may be a more important, jurisdictional matter when the Court is reviewing a case from a state court. At the very least, comity requires that the Supreme Court not overreach its bounds and decide a case on grounds that the state court didn't have full opportunity to decide first.

Ginsburg says as much in her dissent. It's exactly the kind of issue where Scalia's "ideology" of federalism and Ginsburg's "ideology" of proceduralism line up.
posted by footnote at 2:07 PM on February 20, 2007

Seems like a tricky issue to me. My instinct is that jurries should award whatever they like, but the plaintiff should only ever get damages plus lawyer's fees, and the rest should be given away (held by the cort until the plaintif and defendant can agree upon a suitable non-profit recipient). Other plaintifs could also win such excess damages, but the judge can make juries take previous cases into account. But, like I said, sound tricky.
posted by jeffburdges at 3:28 PM on February 20, 2007

The ruling makes perfect sense to me as we already have the class action law suite. This case was about one person during the trial and should remain about one person in the penalty.

However, now that Altria's got this issue out of the way, if they are successful at breaking up the class action in Illinois, they will be able to literally get away with murder of those that can't individually bring suit.
posted by betaray at 4:46 PM on February 20, 2007

So...I can't claim a wad of punitive damages from the SCOTUS, based on the fact that millions of others (nonparties) had to waste half a day, like me, waiting for a 21-page fucking pdf to open?
posted by UbuRoivas at 5:39 PM on February 20, 2007

Footnote: Nonsense. There is no comity issue here. We're not talking about a dispositive or complex issue of state law, and the Court has well-settled doctrines for addressing the presence of either when they arise pre- and post-cert (without regard for whatever you mean when you talk about an "ideology of proceduralism"). In this case, the Oregon state courts did not find the request for a jury charge defaulted because it was not defaulted. That's why Ginsburg does not say, "this case should have been dismissed as improvidently granted [insert case cite]," which at least seven members of the Court would have done in a cocaine heartbeat if it were called for in this case. There is no shortage of opportunities to extend BMW/State Farm, as the GVRs that follow this decision will illustrate.
posted by Slap Factory at 7:31 PM on February 20, 2007

Also, just to keep the terminology straight, preservation of error is not a matter of "prudential standing" (which is a specific term that has an important meaning with respect to the justiciability of a legal dispute) in federal cases or otherwise.

There is no question of prudential judgment or of standing when a claim of error is not preserved: absent a contemperaneous objection, the claim is to plain error review. That's as true at the Court as it is in any court of appeals.
posted by Slap Factory at 7:36 PM on February 20, 2007

While I typically and profoundly differ with dios on ideological and political grounds (based on posting & commenting history, etc.), I don't see him jumping the gun here. He took the time to post a thoughtful comment that happens to be (however peripherally in terms of legal practice, as I don't pretend to know his area of focus) related to his (and my) own respective professional training.

I won't defend the whiff of condescension I detected, but complaining about a pre-emptive bitch-hunt based on your own disagreement with a poster's previously expressed opinions (and Lord knows I've done it, too) strikes me as hypocritical. That said, I still contend that the split in this decision (which I'm off to read, thanks for the post and links, TBM) is interesting as a bell-weather for the current court's jurisprudential approach and the tenor of their internal dynamic(s), and not merely on the assumption that the USSC is comprised of "The Good Guys" and "The Bad Guys."

Woulda put this on the green, but didn't think it deserved its own thread. Feel free to yank it, jessathowie, if stare decisis so dictates.
posted by joe lisboa at 9:26 PM on February 20, 2007 [1 favorite has favorites]

Slap Factory - I just lost a long post to you that I don't have time to reconstruct. But here's the gist of it: Stern & Gressman 8th ed. at 175; Street v. New York, 394 U.S. 576, 582 (1969); Adams v. Robertson, 520 U.S. 83, 90 (1997); Yee v. City of Escondido, 503 U.S. 519, 533 (1992); and MAYBE the adequate and independent state grounds doctrine. You should read the argument transcript to fill in Justice Ginsburg's dissent and see how the court grappled with trying to figure out exactly what the Oregon court did and on what grounds.

Nice to have another fed courts person around!
posted by footnote at 7:42 AM on February 21, 2007

Footnote: I hate losing long posts, and I sympathize. Anyway, I know the cases. I know Stern & Gressman (and my 6th ed. on the bookshelf isn't post-dated on this point). I understand the argument. I just don't think it applies, especially as set out by Dios in his post, and especially as framed as some sort of prudential standing ground. An arguable state-law procedural default makes a case a poor vehicle for review, but the Court was long past that by the time they issued their opinion, and there was no jurisdictional defect (i.e. Michigan v. Long) that would stop them from reaching the merits.

Maybe we are splitting hairs. If the point is that the Court should not have granted cert in the first place, I would still disagree, but I totally can understand that argument. It is nice to interact with another fed courts maven in the blue (though I have a feeling that few others share that sentiment).
posted by Slap Factory at 11:41 AM on February 21, 2007

Woulda put this on the green, but didn't think it deserved its own thread.

For sure. This thread is just like my favourite TV show, Municipal Roundtable. I'd hate to see it pulled and replaced with a YouTube video of a football match.
posted by UbuRoivas at 2:15 PM on February 21, 2007

Er, I meant my defense of dios didn't deserve its own Meta thread on the green, not that the original post itself didn't deserve its own thread. Sorry if I was unclear. And here in Detroit, Municipal Roundtable (i.e., City Council) is virtually indistinguishable from a football match. The political hooligans tend to be more fervent, though.
posted by joe lisboa at 6:21 PM on February 21, 2007

green = gray
*slinks off, tail between legs*
posted by joe lisboa at 9:17 PM on February 21, 2007

green = grey?

prima facie, this would seem illogical, m'lud, but the golden thread running through the common law is that black = white, and i submit, m'lud, that my noble & learned colleague's proposition is entirely in accordance with this well-established precedent.
posted by UbuRoivas at 1:46 PM on February 22, 2007