One of the names on President Obama’s shortlist to replace Justice Souter is California Associate Justice Carlos Moreno. Today’s Recorder profiles Justice Moreno, and includes my observation that Justice Moreno “would represent a ‘left turn’ from Souter on civil issues, particularly in regard to businesses. ‘Justice Souter, for all the complaints he got from the right, is very protective of business interests and is worried about the effect of regulation, [a]nd Justice Moreno much less so.’ Souter has been in the majority in setting ‘significant limits’ on punitive damages, . . . but [Rosen] doesn’t believe Moreno would follow suit.” My co-blogger Curt Cutting discussed Justice Souter’s voting record on punitive damages here.
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“Souter favored limits on punitive damages”
Fortune.com has an article online today entitled “What will Souter’s retirement mean for business? Justice favored limits on punitive damages.”
I posted a few thoughts on this topic earlier this month, in response to a post on the Volokh Conspiracy.
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Plaintiff Files Cert. Petition in Stevens v. Vons
Back in January we had two posts about the California Court of Appeal’s unpublished opinion in Stevens v. Vons, in which the court affirmed a trial court ruling that reduced a $16.7 million punitive damages award down to $1.2 million. The plaintiff, after an unsuccessful petition for review to the California Supreme Court, has now filed a cert. petition with the U.S. Supreme Court.
The petition contends that the Court of Appeal applied the wrong standard of review. The petition says the Court of Appeal mistakenly followed the California Supreme Court’s 1978 opinion in Neal v. Farmers, which held that a trial court’s decision to reduce a punitive damages award under California law is reviewed for abuse of discretion. The petition contends that the Court of Appeal should have followed the California Supreme Court’s more recent opinion in Simon v. San Paolo, which held that a trial court’s decision to reduce a punitive damages award on due process grounds is reviewed de novo. (Simon was merely restating the U.S. Supreme Court’s holding in Cooper v. Leatherman.) The petition contends that the Court of Appeal would have permitted a larger punitive damages award if it had analyzed the punitive damages award solely on due process grounds, and not under state law.
I would be shocked if the Supreme Court grants this petition. The plaintiff is essentially arguing that state courts are no longer free to reduce punitive damages awards under state law if the awards are not excessive under the Due Process Clause. Nothing in the Supreme Court’s punitive damages jurisprudence suggests that the Court intended to prevent state courts from reducing punitive damages awards under state law.
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Will Justice Souter’s Retirement Revolutionize Punitive Damages Litigation?
Professor Jonathan Adler, in a post on the Volokh Conspiracy, speculates that Justice Souter’s replacement could join a liberal voting block to overturn the Supreme Court’s line of punitive damages cases going back to BMW v. Gore:
Replacing Justice Souter could also have a significant effect is on the Court’s decisions on the due process limitations on punitive damages. Justice Souter joined the five justice majorities in BMW v. Gore and Philip Morris v. Williams limiting the award of punitives on due process grounds, and also wrote the Court’s majority in Exxon Shipping v. Baker, which limited punitive damages under the federal common law of maritime. Again, “liberal” justices are split on this question. Here, however, if Souter’s replacement were to align with Justices Stevens and Ginsburg, it is likely that the Court’s recent punitive damages cases could be overturned.
While it’s certainly possible that Justice Souter’s replacement could shake things up in this area, I’m not sure I agree with Professor Adler. If the new justice aligns with Justice Stevens, the Court would not be likely to overturn BMW v. Gore. It was Justice Stevens, after all, who wrote the majority opinion in BMW v. Gore. Justice Breyer concurred in that opinion, and both justices Stevens and Breyer concurred in the Court’s subsequent opinion in State Farm v. Campbell. That leaves Justice Ginsburg as the only liberal justice opposing the Supreme Court’s application of the Due Process Clause to limit the size of punitive damages awards. It is true that Justice Souter was part of the 5-4 majorities in Williams and Exxon Shipping, so his replacement could potentially lead the Court to overturn those decisions, but the foundations of the Supreme Court’s punitive damages jurisprudence would still be intact so long as the Court does not overturn the BMW and Campbell decisions.
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Another Editorial Criticizing Dismissal of Cert in Williams III
Today’s LA Times contains an editorial entitled The Supreme Court and Law Left Hanging. The editorial makes the same point as this editorial we blogged about last week, namely, that the Supreme Court should have used Williams III as a vehicle for clarifying and strengthening the limits on excessive punitive damages. Neither editorial mentions that the excessiveness issue was not before the court in Williams III because the Supreme Court declined to consider that issue when it granted certiorari last June.
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Shakespeare, the Supreme Court, and Punitive Damages
Legal Times (via Law.com) has this amusing report about a theater production that took place this evening involving Justices Ginsburg, Alito, and Breyer. Those three, and five lower court judges, presided over a mock argument in a production called Malvolio’s Revenge, based on Twelfth Night. The premise is that Malvolio has won a $10 million punitive damages verdict for false imprisonment and the judges must decide if the award is constitutional.
Click here for the event’s official website.
UPDATE: The BLT (blog of Legal Times) reports that the court ruled against Malvolio and vacated his $10 million punitive damages award.
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Cert. Dismissed in Williams III
The U.S. Supreme Court has issued an order dismissing certiorari as improvidently granted in Philip Morris v. Williams (Williams III), which was argued last December (click here to view the transcript). As readers of this blog will recall, the issue before the court was:
Whether, after this Court has adjudicated the merits of a party’s federal claim
and remanded the case to state court with instructions to “apply” the correct constitutional standard, the state court may interpose–for the first time in the litigation–a state-law procedural bar that is neither firmly established nor regularly followed.I certainly didn’t see this dismissal coming. It was apparent from the oral argument transcript that the court was sharply divided, but I guessed that the result would be a 5-4 reversal. Looking back at the transcript, I suppose this comment by Justice Breyer might have been a hint that dismissal was possible: “When I read that petition for cert, I thought this is a run-around, and I’m not sure that I think that now.”
No one really knows why the court dismissed review (and we may never know), but one of my colleagues, John Querio, has offered this assessment, which makes sense to me:
It means they realized this issue was tangled up with state law issues that they
didn’t anticipate (but could have), meaning there was a very good argument that the Oregon S.Ct.’s rationale represented an adequate and independent state ground for the decision, which deprives the USSCT of jurisdiction. I’m guessing the liberals and at least some of the conservatives agreed on this – the liberals because they wanted to preserve the award, and the conservatives because they favor the AISG doctrine in the criminal context and didn’t want to make new and harmful precedent cutting back on that ground to get to the merits of the punitive damages issue here. Such an opinion could have been cited by criminal defense lawyers in the future.You can read more about the dismissal at:
SCOTUSblog (Observing that, with interest, Philip Morris will now owe over $150 million, but noting that Philip Morris plans to keep the Williams litigation going by challenging the state of Oregon’s claim to 60 percent of the punitive damages award)
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Media Frenzy Surrounds Supreme Court Argument on Maritime Punitive Damages
OK, not really. As far as I can tell, the mainstream media is completely ignoring yesterday’s oral argument in Atlantic Sounding Co. v. Townsend. Even the blogosphere is silent. You know a case is really obscure when it makes it to the U.S. Supreme Court and nobody cares.
For what it’s worth, I got the impression from the oral argument transcript that the court is likely to rule that punitive damages are not available in maintenance and cure cases.
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Supreme Court Hears Arguments on Maritime Punitive Damages
The U.S. Supreme Court heard oral arguments this morning in Atlantic Sounding Co. v. Townsend, a case involving the availability of punitive damages in maritime cases. Specifically, the question presented is whether whether a seaman may recover punitive damages against a shipowner for failing to pay “maintenance and cure” (i.e., living expenses and medical costs) for shipboard injuries.
Click here for links to the briefs on the merits, courtesy of the American Bar Association.
We’ll post a link to the oral argument transcript as soon as its available.
UPDATE: The transcript is available here.
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Law Review Article Discusses Punitive Damages Case Pending Before U.S. Supreme Court
Things have been pretty quiet on the punitive damages front lately, leaving us no significant case developments to discuss for almost two weeks. But for those of you who are just dying for one last fix of punitive-damages-related analysis before the end of the year, you might want to check out this article in the latest edition of the University of San Francisco Maritime Law Journal: “A Beacon for the Protection of Seamen: the Eleventh Circuit Permits Punitive Damages for the Willful Withholding of Maintenance and Cure in Atlantic Sounding Co. v. Townsend.”
I don’t have an online link for the article, but you can find it on Westlaw using the citation 20 USFMLJ 237. The article, written by Joshua Hanbury, a third-year law student at the University of Richmond School of Law, provides an in depth discussion of the Eleventh Circuit’s decision in Atlantic Sounding Co. The article was written before the U.S. Supreme Court granted cert. in that case, but this article seems to include more information about the issues than anything I’ve seen even since cert. was granted. For some strange reason, the availability of punitive damages for maintenance and cure violations has not captured the public imagination. Go figure.
As previously noted, Atlantic Sounding Co. is set for oral argument on March 2.