We recently came across a post on a Bricker & Eckler blog, about a recent Ohio Supreme Court case, Havel v. Villa St. Joseph, 963 N.E.2d 1270 (Ohio 2012), upholding the constitutionality of an Ohio statute imposing mandatory bifurcation in punitive damages cases. Havel held, after considerable back and forth:
"[The statute] does not violate the Ohio Constitution and is constitutional because it is a substantive law that prevails over a procedural rule. Inherent in our conclusion is rejection of the argument that dicta contained in Sheward [an infamous anti-tort reform decision], which described the former version of [the statute] as governing a procedural matter. . . . Sheward never considered the bifurcation question we confront in this case. Thus, we are not required to follow out-of-context dicta as precedent."
Havel, 963 N.E.2d 1279 (quoting and following Arbino v. Johnson & Johnson, 880 N.E.2d 420, 443 (2007)). That’s an excellent result, but by addressing the issue in this way the Court did not have to pass on a more fundamental question that we’ve been pondering, which is whether a plaintiff has any constitutional right punitive damages in the first place.
In that regard, the Bricker post helped us out. In discussing Havel, it mentioned that “Ohio’s caps on punitive damages have been upheld as constitutional (in Arbino v. Johnson & Johnson).” There’s that decision again. Arbino seemed like a pretty good place to start looking for an answer to the basic constitutional question, so we took a look. Sure enough, Arbino turned out to be a recent example of what we’ve now come to conclude is a virtually universal rule that, until a judgment in an individual case is actually entered, there is no “vested right” to pursue a claim for punitive damages. Nor for that matter is elimination of a punitive damages remedy a “taking.” Basically, punitive damages are a form of punishment, not compensation, to which no constitutional right attaches. As the Ohio Supreme Court stated in Arbino:
"[R]egulation of punitive damages is discretionary and that states may regulate and limit them as a matter of law without violating the right to a trial by jury. . . . [P]unitive damages are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct."
880 N.E.2d at 441 (citations and quotation marks omitted).
As it turned out, Arbino is hardly alone. Here’s what some other state supreme courts have said on the issue:
"[A] party has no prejudgment property interest in a punitive damages award. . . . [T]here is no vested property right in an award of punitive damages. . . . [U]nder either the federal or the [state constitution] Takings Clause, there is no property right in a claim for punitive damages. Rather, consistent with their punitive nature, punitive damages are akin to a fine exacted by the government . . . to deter and punish wrongdoers."
Cheatham v. Pohle, 789 N.E.2d 467, 474 (Ind. 2003) (citations and quotation marks omitted).
"[A] plaintiff has no right or entitlement to punitive damages as a remedy . . . and, as a result, the jury has complete discretion not to award punitive damages, even if a plaintiff successfully proves all elements of a claim. Consequently, before entry of a final judgment, a plaintiff . . . always has had, at most, an expectation of such an award. . . . A vested right must be something more than a mere expectation based upon the anticipated continuance of existing laws; it must have become a title legal or equitable to the present or future enjoyment of property. We therefore hold that plaintiffs do not have a vested prejudgment property right in punitive damages."
Demendoza v. Huffman, 51 P.3d 1232, 1245 (Or. 2002) (citations omitted).
"[A]ll of our cases recognized that a plaintiff has no vested right to punitive damages and that no right, cause of action, or remedy existed . . . separate and apart from an action for compensatory damages. Exemplary damages are in no case a right of the plaintiff, but are assessed at the discretion of the jury for the purpose indicated. . . . [N]o citizen has a right to recover punitive damages; therefore, there is no life, liberty, or property interest of a plaintiff involved where punitive damages are concerned."
Smith v. Printup, 866 P.2d 985, 997 (Kan. 1993) (citations and quotation marks omitted).
"A plaintiff has no vested property right in the amount of punitive damages which can be awarded in any case, and the legislature may lawfully regulate the amount of punitive damages which can be awarded."
Mack Trucks, Inc. v. Conkle, 436 S.E.2d 635, 639 (Ga. 1993) (citations omitted).
"[Plaintiff] has no cognizable, protectable right to the recovery of punitive damages at all. Unlike the right to compensatory damages, the allowance of punitive damages is based entirely upon considerations of public policy. Accordingly, it is clear that the very existence of an inchoate claim for punitive damages is subject to the plenary authority of . . . the legislature. In the exercise of that discretion, it may place conditions upon such a recovery or even abolish it altogether . . . . The right to have punitive damages assessed is not property; and it is the general rule that, until a judgment is rendered, there is no vested right in a claim for punitive damages. It cannot, then, be said that the denial of punitive damages has unconstitutionally impaired any property rights of appellant."
Gordon v. State, 608 So.2d 800, 801-02 (Fla. 1992).
"Plaintiff also contends that the punitive damage award constitutes property entitled to constitutional protection under both the federal and [state] constitutions. . . . [A] plaintiff has no vested right in a particular measure of damages. . . . [P]unitive damages are remedial and that a plaintiff has no vested right to such damages prior to the entry of a judgment. Consequently, a statutory provision limiting a punitive damage award may be applied retrospectively without violating due process or equal protection . . . . [P]unitive damages are not allowed as a matter of right and are discretionary. . . . [P]unitive damages are not intended to be compensatory and that a plaintiff is a fortuitous beneficiary of a punitive damage award simply because there is no one else to receive it. Under our view of punitive damages . . ., plaintiff did not have a vested right to punitive damages prior to the entry of a judgment."
Shepherd Components v. Brice Petrides-Donahue & Associates, Inc., 473 N.W.2d 612, 619 (Iowa 1991) (citations and quotation marks omitted).
"[P]unitive damages are remedial and a plaintiff has no vested right to such damages prior to the entry of judgment. Punitive damages are never allowable as a matter of right and their award lies wholly within the discretion of the trier of fact. The purpose of punitive damages is to inflict punishment and to serve as an example and deterrent to similar conduct. . . . Such damages being allowed in the interest of society, and not to recompense solely the victim, to deny them cannot be said to deny any constitutional right or to encroach upon any judicial function, or to violate any constitutional guaranty of separation of powers."
Vaughan v. Taft Broadcasting Co., 708 S.W.2d 656, 660 (Mo. 1986) (citations omitted). See also Rhyne v. K-Mart Corp., 594 S.E.2d 1, 14 (N.C. 2004) (“plaintiffs do not have a vested prejudgment property right in punitive damages”); Evans v. State, 56 P.3d 1046, 1058 (Alaska 2002) (as to “a cap on punitive damages, limiting them before they are awarded to successful plaintiffs, no constitutional problem exists”; punitive damages may be “limited or abolished”); Meech v. Hillhaven West, Inc., 776 P.2d 488, 503 (Mont. 1989) (“no vested right to exemplary damages”); Fust v. Attorney General, 947 S.W.2d 424, 431 (Mo. 1997) (a plaintiff has “no vested property interest” in punitive damages claim); Smith v. Hill, 147 N.E.2d 321, 325 (Ill. 1958) (“a vested right to punitive, exemplary, vindictive or aggravated damages arises only when such damages have been allowed by a judgment); Langford v. Vanderbilt University, 287 S.W.2d 32, 34 (Tenn. 1956) (“[p]unitive damages . . . are allowed as a mere penalty”; “[a] mere penalty never vests but remains executory”); Louisville & Nashville Railroad v. Street, 51 So. 306, 307 (Ala. 1909) (no property right in punitive damages award).
For once, we didn’t have to delve too deeply to find an answer to a legal question (or a subject for a blog post – coming up with ideas daily is no easy matter). Those are just the state Supreme Court cases that we know about which hold that there is no constitutional right to pursue punitive damages. Lots of lower court opinions echo these same rulings. Constitutional challenges have been rejected under due process, taking, jury trial, open courts and various other state constitutional provisions. It makes sense. While compensatory damages might present a closer question (depending on issues such as retroactivity), there’s simply no constitutional right for one private party to demand that another private party be punished.