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Court May Decide What Size Award Violates Rights

At Issue: Punitive Damages, Due Process

(Dennis Brack - Bloomberg News)
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Washington Post Staff Writer
Thursday, December 4, 2008; Page A03

In civics books, and sometimes even in real life, the Supreme Court speaks and everybody falls in line, like it or not.

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The vote counting stops in Florida, and George W. Bush becomes president. No matter what the president or Congress say, terrorism detainees held at Guantanamo Bay, Cuba, receive constitutional rights.

But sometimes the decisions of the high court are not followed, and the power of justices to force state courts to respond to their orders becomes the issue -- as happened yesterday in Philip Morris USA v. Williams.

The case, in which an Oregon jury awarded nearly $80 million in punitive damages against Philip Morris, made its third appearance at the Supreme Court after bouncing back and forth through the judicial system for nearly a decade. Even though the justices have strongly implied that the award was too large and twice sent the case back west, their Oregon counterparts have consistently found reasons to leave it just the way it is.

After the Oregon Supreme Court declined to change its decision for a second time, lawyers for the cigarette maker petitioned the high court to "vindicate" its authority. But something funny happened at the showdown: Several justices said that maybe the Oregon courts were not being obstreperous, after all.

Justice David H. Souter defended the Oregon courts but also wondered about others who might not act in good faith.

"The problem that I think we all have is: How do we, in effect, guard against making constitutional decisions which are simply going to be nullified by some clever device" by a lower court? Souter asked. "Is there any way for us to ensure against, in effect, a bad-faith response to our decision?"

And after nearly an hour of debate, Chief Justice John G. Roberts Jr. introduced a new issue that would transform the case from a judicial spat into something more far-reaching. Maybe, Roberts said, the justices themselves should tackle the issue the court has avoided: How large does a punitive damages award need to be before it violates the constitutional guarantee of due process?

The Oregon Supreme Court has twice upheld the nearly $80 million in punitive damages awarded to Mayola Williams, whose husband, Jesse, smoked three packs of Marlboros a day and died of lung cancer.

When it last considered the case, the U.S. Supreme Court ruled 5 to 4 that the Oregon court had applied the wrong constitutional standard in reviewing the award. It strongly suggested the figure was too high and told the state court to make sure the jury had not awarded such heavy punitive damages -- which are aimed at discouraging companies from reprehensible behavior -- because of harm the cigarette maker may have done to others, rather than to Jesse Williams.

"The Due Process Clause prohibits a State's inflicting punishment for harm caused strangers to the litigation," Justice Stephen G. Breyer wrote.

Instead, the Oregon justices rejected Philip Morris's challenge on the grounds of state law, saying the company's proposed jury instructions nearly 10 years prior had been insufficient. The Oregon court said it did not need to get to the question of the court's constitutional standards in order to uphold the award.

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