In a state court suit upon an insurance claim for loss of a
limb, the jury awarded appellee the $20,000 provided by his policy
and punitive damages of $1.6 million based on appellant's bad-faith
refusal to pay the claim. Concluding that the punitive damages
award was not excessive in light of appellant's financial worth and
the degree of its wrongdoing, the Mississippi Supreme Court
affirmed the verdict without modification, and assessed an
additional 15% penalty against appellant in accordance with a state
statute imposing such a penalty on parties who appeal
unsuccessfully from money judgments or other categories of
judgments whose value may be readily determined. Although the
appeal had not raised a federal constitutional challenge to the
size of the punitive damages award, appellant argued, in its
petition for rehearing, that the award "was clearly excessive, not
reasonably related to any legitimate purpose, constitutes excessive
fine, and violates constitutional principles." Appellant's Motion
to Correct Judgment also alleged that the statutory penalty
violated its equal protection rights under the Federal and State
Constitutions. Without opinion, the State Supreme Court denied the
petition for rehearing and the Motion to Correct Judgment.
Held:
1. This Court will not reach appellant's claims that the
punitive damages award violated the Due Process, Contract, and
Excessive Fines Clauses of the Federal Constitution, since those
claims were not raised and passed upon in state court.
Hathorn
v. Lovorn, 457 U. S. 255,
distinguished. The petition for rehearing's vague and general
appeal to constitutional principles was insufficient to adequately
raise the Contract Clause or due process claims. Similarly, the
petition's reference to the award's excessiveness is too oblique to
have properly raised the Federal Excessive Fines Clause claim,
since no mention was made of the Clause, the Federal Constitution,
or federal law, and the Mississippi Constitution contains its own
Excessive Fines Clause, which the State Supreme Court could have
taken to underlie the excessiveness challenge if it understood
appellant to be offering a constitutional challenge. Assuming that
this Court's "not pressed or passed upon below" rule is not
jurisdictional, but is merely a prudential restriction, the more
prudent course here is to decline review of the important and
difficult Federal Excessive Fines Clause issue. This course will
permit a number of less intrusive,
Page 486 U. S. 72
and possibly more appropriate, resolutions by the state
legislature or courts, while any ultimate review of the question in
this Court will gain the benefit of a well developed record and a
reasoned opinion on the merits by the State Supreme Court. Pp.
486 U. S.
76-80.
2. Mississippi's penalty statute does not violate the Equal
Protection Clause of the Fourteenth Amendment, since it is
reasonably tailored to achieve the State's legitimate objectives of
discouraging frivolous appeals, compensating appellees for the
intangible costs of litigation, and conserving judicial resources.
The statute does not discriminate against a particular class of
appellants in an arbitrary and irrational fashion, since it broadly
applies to both plaintiffs and defendants, as well as to a variety
of specified types of readily determined judgments, and since its
limitation to appellants from such judgments represents a rational,
if partial, attempt to deter frivolous appeals without the
substantial judicial intervention that the inclusion of other types
of claims would require. Moreover, the statute poses little danger
of discouraging meritorious appeals along with insubstantial ones,
since the 15% penalty operates only after a judgment has been
affirmed without modification, and represents a relatively modest
additional assessment.
Lindsey v. Normet, 405 U. S.
56, distinguished. Although the State might have enacted
a statute that more precisely served the intended goals, perfection
is not required under the rational basis test. Pp.
486 U. S.
80-85.
483 So. 2d
254, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, J., joined, in all but Part II of
which WHITE, J, joined, in all but Part II and n. 1 of which
O'CONNOR and SCALIA, JJ., joined, and in all but Part III of which
BLACKMUN, J., joined. WHITE, J., filed a concurring opinion, in
which SCALIA, J., joined,
post, p.
486 U. S. 85.
O'CONNOR, J., filed an opinion concurring in part and concurring in
the judgment, in which SCALIA, J., joined,
post, p.
486 U. S. 86.
SCALIA, J., filed an opinion concurring in part and concurring in
the judgment,
post, p.
486 U. S. 89.
BLACKMUN, J., filed an opinion concurring in part and dissenting in
part,
post, p.
486 U. S. 89.
STEVENS and KENNEDY, JJ., took no part in the consideration or
decision of the case.
Page 486 U. S. 73
JUSTICE MARSHALL delivered the opinion of the Court.
In this case we must decide whether a Mississippi statute
imposing a 15% penalty on parties who appeal unsuccessfully from a
money judgment violates the Equal Protection Clause.
I
This action grows out of allegations that appellant Bankers Life
and Casualty Company refused in bad faith to pay appellee Lloyd
Crenshaw's insurance claim for loss of a limb. According to
testimony at trial, appellee was injured on January 6, 1979, when a
car alternator he was repairing rolled off his workbench and landed
on his foot. Three days later, after the injury had not responded
to home treatment, appellee went to the emergency room of the local
Air Force Base hospital. Hospital doctors prescribed a splint,
crutches, and pain medication, and told appellee to return in a
week. Appellee revisited the hospital three times over the next
five days, each time complaining of continuing pain in his foot. By
the last visit, appellee's foot had swollen and begun to turn blue,
and the examining doctor recommended a surgery consultation.
Appellee was admitted to the hospital, where,
Page 486 U. S. 74
on January 17, an Air Force general surgeon determined that a
surgical amputation was necessary. The following day, appellee's
leg was amputated below the knee.
At the time of the amputation, appellee was insured under a
group policy issued by appellant. The policy provided a $20,000
benefit for loss of limb due to accidental bodily injury. In April,
1979, appellee submitted a claim under the policy. Appellant denied
the claim. The apparent basis for the denial was an opinion of
appellant's Medical Director, Dr. Nathaniel McParland, that the
cause of the amputation was not appellee's accident but a
preexisting condition of arteriosclerosis, a degenerative vascular
disease. Appellee responded to the company's denial by furnishing a
statement signed by three doctors who treated him at the hospital.
They stated that appellee's arteriosclerosis was
"an underlying condition, and not the immediate cause of the
gangrenous necrosis. The precipating [
sic] event must be
considered to be the trauma which initially brought him to the
Emergency Room on 9 January."
483 So. 2d
254, 261 (Miss.1985). Dr. McParland and a company analyst
concluded that this statement was inconsequential, and appellant
adhered to its position that the arteriosclerosis was responsible
for the loss of limb.
Appellee persisted in his efforts to recover under the policy,
eventually hiring an attorney, and appellant persisted in its
intransigence. In its correspondence with appellee and his
attorney, appellant repeatedly asserted that appellee had not
suffered an injury as defined in the policy, that is, a
"'bodily injury, causing the loss while this policy is in force,
directly and independently of all other causes and effected solely
through an accidental bodily injury to the insured person.'"
Id. at 262, quoting letter of Apr. 8, 1980, from Wm.
Herzau to appellee. In contemporaneous internal memoranda, however,
appellant noted that, notwithstanding the policy language, appellee
was entitled to recovery under Mississippi law if his injury had
"aggravate[d], render[ed]
Page 486 U. S. 75
active, or set in motion a latent or dormant preexisting
physical condition or disease."
Id. at 262, 263. The
memoranda also demonstrated that appellant knew its files were
incomplete, yet never attempted to obtain appellee's medical
records, most notably his emergency room report, even though
Mississippi law and internal company procedures required such
efforts.
After appellant again denied the claim on the ground that there
was no evidence that appellee's "injury caused this loss
directly and independently of all other causes,'" see
id. at 263, appellee brought this suit in Mississippi state
court. His complaint requested $20,000 in actual damages, and, as
amended, $1,635,000 in punitive damages for the tort of bad-faith
refusal to pay an insurance claim. The jury awarded appellee the
$20,000 provided by the policy and punitive damages of $1.6
million.
The Mississippi Supreme Court affirmed the jury verdict without
modification. It concluded that the punitive damages award was not
excessive in light of appellant's financial worth and the degree of
its wrongdoing.
See id. at 279. Because the money judgment
was affirmed without modification, a penalty of $243,000, or 15% of
the judgment, was assessed against appellant and added to
appellee's recovery in accordance with Mississippi's penalty
statute.
See Miss.Code Ann. § 11-3-23 (Supp.1987). In its
appeal to the Mississippi Supreme Court, appellant did not raise a
federal constitutional challenge to the size of the punitive
damages award. [
Footnote 1]
Following the affirmance of the jury verdict, appellant filed a
petition for rehearing. Appellant argued in the petition that
"[t]he punitive damage verdict was clearly excessive,
Page 486 U. S. 76
not reasonably related to any legitimate purpose, constitutes
excessive fine, and violates constitutional principles."
App. to Juris. Statement 139a. An accompanying brief asserted
that the punitive damages award violated "due process, equal
protection, and other constitutional standards."
Id. at
151a. Appellant also filed a Motion to Correct Judgment in which it
alleged that the 15% penalty under § 11-3-23 "violat[ed] the rights
of equal protection and due process of Bankers Life" guaranteed in
the Federal and State Constitutions. App. to Juris. Statement
106a-107a. The Mississippi Supreme Court, without opinion, denied
the petition for rehearing and overruled the Motion to Correct
Judgment.
II
Appellant focuses most of its efforts in this appeal to
challenging the punitive damages award of $1.6 million. It contends
foremost that the award violates the Eighth Amendment's guarantee
that "excessive fines [shall not be] imposed." Appellant argues
first, that the Excessive Fines Clause applies to punitive damages
awards rendered in civil cases, and second, that the particular
award in this case was constitutionally excessive. In addition to
its excessive fines claim, appellant challenges the punitive
damages award in this case on the grounds that it violates the Due
Process Clause and the Contract Clause. Although we noted probable
jurisdiction as to all of the questions presented in appellant's
jurisdictional statement, appellant's challenges to the size of the
punitive damages award do not fall within our appellate
jurisdiction.
See 28 U.S.C. § 1257(2). We therefore treat
them as if contained in a petition for a writ of certiorari, and
our unrestricted notation of probable jurisdiction of the appeal is
to be understood as a grant of the writ as to these claims.
See
Mistakin v. New York, 383 U. S. 502,
383 U. S. 512
(1966). We conclude, however, that these claims were not raised and
passed upon in state court, and we decline to reach them here.
See ibid. ("The issue thus remains within our
Page 486 U. S. 77
certiorari jurisdiction, and we may, for good reason, even at
this stage, decline to decide the merits of the issue, much as we
would dismiss a writ of certiorari as improvidently granted").
Appellant maintains that it raised its various challenges to the
size of the punitive damages award in its petition for rehearing
before the Mississippi Supreme Court. In urging us to entertain the
claims, appellant relies on our decision in
Hathorn v.
Lovorn, 457 U. S. 255,
457 U. S.
262-265 (1982), in which we accepted certiorari
jurisdiction of claims that were raised, but not passed upon, in
the Mississippi Supreme Court on petition for rehearing.
Hathorn would be apposite were we to conclude that
appellant had adequately raised its claims on rehearing. But
appellant's petition for rehearing alleged only that the punitive
damages award "was clearly excessive, not reasonably related to any
legitimate purpose, constitutes excessive fine, and violates
constitutional principles." App. to Juris. Statement 139a. The
vague appeal to constitutional principles does not preserve
appellant's Contract Clause or due process claim. A party may not
preserve a constitutional challenge by generally invoking the
Constitution in state court and awaiting review in this Court to
specify the constitutional provision it is relying upon.
Cf.
Taylor v. Illinois, 484 U. S. 400,
484 U. S. 407,
n. 9 (1988) ("A generic reference to the Fourteenth Amendment is
not sufficient to preserve a constitutional claim based on an
unidentified provision of the Bill of Rights. . . .").
Appellant's reference to the excessiveness of the punitive
damages award more colorably raises a cognizable constitutional
challenge to the size of the award, one based on the Excessive
Fines Clause of the Eighth Amendment. But this language as well is
too oblique to allow us to conclude that appellant raised before
the Mississippi Supreme Court the federal claim it now urges us to
resolve. As this Court stated in
Webb v. Webb,
451 U. S. 493,
451 U. S. 501
(1981),
"[a]t the minimum . . . there should be no doubt from the record
that a
Page 486 U. S. 78
claim under a
federal statute or the
Federal
Constitution was presented in the state courts, and that those
courts were apprised of the nature or substance of the federal
claim at the time and in the manner required by the state law."
Although the petition for rehearing alleges that the fine is
excessive, it does not indicate that the fine is excessive as a
constitutional matter, be it state or federal. It certainly does
not identify the Excessive Fines Clause of the Eighth Amendment to
the Federal Constitution as the source of appellant's claim.
Indeed, the crucial language from appellant's petition contains no
reference whatsoever to the Eighth Amendment, the Federal
Constitution, or federal law. This failure to invoke the Federal
Constitution is especially problematic in this case, because the
Mississippi Constitution contains its own Excessive Fines Clause.
Miss. Const., Art. 3, § 28. Thus, even if the Mississippi Supreme
Court understood appellant to be offering a constitutional
challenge, it may very well have taken that challenge to be
anchored in the State Constitution.
Cf. Webb, supra, at
496-498 (finding that party's reference to "full faith and credit"
in state court proceedings had failed to raise a federal
constitutional claim, even though the State Constitution contained
no full faith and credit clause);
id. at
451 U. S.
502-503 (MARSHALL, J., dissenting). We therefore
conclude that appellant's Eighth Amendment challenge, like its
other challenges to the size of the punitive damages award, was not
properly raised below. [
Footnote
2]
Page 486 U. S. 79
Whether appellant's failure to raise these claims in the
Mississippi courts deprives us of all power to review them under
our certiorari jurisdiction is an unsettled question. As then
JUSTICE REHNQUIST wrote for the Court in
Illinois v.
Gates, 462 U. S. 213
(1983), the cases have been somewhat inconsistent in their
characterization of the "not pressed or passed upon below" rule.
Early opinions seemed to treat the requirement as jurisdictional,
whereas more recent cases clearly view the rule as merely a
prudential restriction that does not pose an insuperable bar to our
review.
See id. at
462 U. S.
218-219 (discussing cases). We are not called on today
to conclusively characterize the "not pressed or passed upon below"
rule, however, because assuming that the rule is merely prudential,
we believe that the more prudent course in this case is to decline
to review appellant's claims.
In determining whether to exercise jurisdiction over questions
not properly raised below, the Court has focused on the policies
that animate the "not pressed or passed upon below" rule. These
policies are first, comity to the States, and second, a
constellation of practical considerations, chief among which is our
own need for a properly developed record on appeal.
See Webb v.
Webb, supra, at
451 U. S.
500-501. Because the chief issue appellant would have us
resolve -- whether the Eighth Amendment's Excessive Fines Clause
serves to limit punitive damages in state civil cases -- is a
question of some moment and difficulty, these policies apply with
special force.
See Illinois v. Gates, supra, at
462 U. S. 224
("Where difficult issues of great public importance are involved,
there are strong reasons to adhere scrupulously to the customary
limitations on our discretion");
Mistakin v. New York, 383
U.S. at
383 U. S.
512-513 ("The far-reaching and important questions
tendered by this claim are not presented by the record with
sufficient clarity to require or justify their decision"). Our
review of appellant's claim now would short-circuit a number of
less intrusive,
Page 486 U. S. 80
and possibly more appropriate, resolutions: the Mississippi
State Legislature might choose to enact legislation addressing
punitive damages awards for bad-faith refusal to pay insurance
claims; [
Footnote 3] failing
that, the Mississippi state courts may choose to resolve the issue
by relying on the State Constitution or on some other adequate and
independent nonfederal ground; and failing that, the Mississippi
Supreme Court will have its opportunity to decide the question of
federal law in the first instance, while any ultimate review of the
question that we might undertake will gain the benefit of a well
developed record and a reasoned opinion on the merits. We think it
unwise to foreclose these possibilities, and therefore decline to
address appellant's challenges to the size of the punitive damages
award.
III
There remains appellant's challenge to Mississippi's "penalty
statute," which requires unsuccessful appellants from money
judgments, as well as from several other categories of judgments
whose value may readily be determined, to pay an additional
assessment of 15% of the judgment. [
Footnote 4] Appellant
Page 486 U. S. 81
argues that the penalty statute violates the Equal Protection
Clause of the Fourteenth Amendment because it singles out
appellants from money judgments, and because it penalizes all such
appellants who are unsuccessful, regardless of the merit of their
appeal. This claim is properly before us under our appellate
jurisdiction because the Mississippi Supreme Court, in denying
appellant's Motion to Correct Judgment, upheld the validity of §
11-3-23 against appellant's federal constitutional claim.
See 28 U.S.C. § 1257(2).
Under this Court's equal protection jurisprudence, Mississippi's
statute is "presumed to be valid and will be sustained if the
classification . . . is rationally related to a legitimate state
interest."
Cleburne v. Cleburne Living Center, Inc.,
473 U. S. 432,
473 U. S. 440
(1985). The state interests assertedly served by the Mississippi
statute were detailed by the Mississippi Supreme Court in
Walters v. Inexco Oil Co., 440 So.
2d 268 (1983). The penalty statute, some version of which has
been part of Mississippi law since 1857,
"expresses the state's interest in discouraging frivolous
appeals. It likewise expresses a bona fide interest in providing a
measure of compensation for the successful appellee, compensation
for his
Page 486 U. S. 82
having endured the slings and arrows of successful appellate
litigation."
Id. at 274-275. In a similar vein, the statute protects
the integrity of judgments by discouraging appellant-defendants
from prolonging the litigation merely to "squeeze a favorable
settlement out of an impecunious" appellee.
Id. at 275.
Also, the penalty statute
"tells the litigants that the trial itself is a momentous event,
the centerpiece of the litigation, not just a first step weighing
station en route to endless rehearings and reconsiderations."
Ibid. Finally, in part because it serves these other
goals, the penalty statute furthers the State's interest in
conserving judicial resources.
Ibid.
The legitimacy of these state interests cannot seriously be
doubted, and this Court has upheld statutes that serve similar
interests.
See, e.g., Life & Casualty Ins. Co. v.
McCray, 291 U. S. 566
(1934) (upholding additional assessment on insurance companies that
wrongfully refuse to pay policy benefits);
see also Louisville
& Nashville R. Co. v. Stewart, 241 U.
S. 261,
241 U. S. 263
(1916) (State may make appeal "costly in cases where ultimately the
judgment is upheld") (Holmes, J.).
Cf. Lindsey v. Normet,
405 U. S. 56,
405 U. S. 78
(1972) ("We do not question here reasonable procedural provisions
to safeguard litigated property . . . or to discourage patently
insubstantial appeals") (citation omitted). The statute therefore
offends the Equal Protection Clause only if the legislative means
that Mississippi has chosen are not rationally related to these
legitimate interests.
In arguing that § 11-3-23 violates equal protection, appellant
seeks to draw support from the Court's opinion in
Lindsey v.
Normet, supra. Lindsey addressed the
constitutionality of an Oregon statute that required tenants
challenging eviction proceedings to post a bond of twice the amount
of rent expected to accrue pending appellate review. The bond was
forfeited to the landlord if the lower court decision was affirmed.
We agreed with the appellants that the double-bond
Page 486 U. S. 83
requirement violated the Equal Protection Clause. [
Footnote 5] We noted that the requirement was
"unrelated to actual rent accrued or to specific damage sustained
by the landlord." 405 U.S. at
405 U. S. 77.
Moreover, the requirement, which burdened only tenants, including
tenants whose appeals were nonfrivolous, erected "a substantial
barrier to appeal faced by no other civil litigant in Oregon."
Id. at
405 U. S. 79. We
therefore concluded that the requirement bore "no reasonable
relationship to any valid state objective," and that it
discriminated against the class of tenants appealing from adverse
decisions in wrongful detainer actions in an "arbitrary and
irrational" fashion.
Id. at
405 U. S. 76-77,
405 U. S.
79.
As
Lindsey demonstrates, arbitrary and irrational
discrimination violates the Equal Protection Clause under even our
most deferential standard of review. Unlike the statute in
Lindsey, however, Mississippi's penalty statute does not
single out a class of appellants in an arbitrary and irrational
fashion. First, whereas the statute in
Lindsey singled out
the narrow class of defendant-tenants for discriminatory treatment,
the sweep of § 11-3-23 is far broader: the penalty applies both to
plaintiffs and defendants, and it also applies to all money
judgments, as well as to a long list of judgments whose money value
may readily be determined.
See n 6,
infra. Second, and more generally, there is
a rational connection between the statute's objective and
Mississippi's choice to impose a penalty only on appellants from
money judgments or judgments the money value of which can readily
be determined. If Mississippi wanted similarly to deter frivolous
appeals from other kinds of judgments, it either would have to
erect a fixed bond that bore no relation to the value of the
underlying suit or else it would have to
Page 486 U. S. 84
set appropriate penalties in each case using some kind of
individualized procedure, which would impose a considerable cost in
judicial resources, exactly what the statute aims to avoid.
Mississippi instead has chosen a partial solution that will deter
many, though not all, frivolous appeals without requiring a
significant commitment of governmental resources. Appellants from
money judgments, and from the other types of judgments delineated
in the statute, are a rational target of this scheme because the
value of their claims, and thus of a proportional penalty, may be
readily computed without substantial judicial intervention.
Cf.
Lindsey, supra, at
405 U. S. 78
("We discern nothing in the special purposes of the [wrongful
detainer] statute or in the special characteristics of the
landlord-tenant relationship to warrant this discrimination"). The
Constitution does not prohibit Mississippi from singling out a
group of litigants that it rationally concludes is most likely to
be deterred from bringing meritless claims at the least cost to the
State.
In addition, Mississippi's statute is less likely than was the
statute in
Lindsey to discourage substantial appeals along
with insubstantial ones. Because the penalty operates only after a
judgment has been affirmed without modification, there is less risk
than in
Lindsey of discouraging appellants who believe
they have meritorious appeals but simply lack the funds to post a
substantial bond during the appellate process. [
Footnote 6] And whereas the assessment in
Lindsey "automatically doubled the stakes," 405 U.S. at
405 U. S. 79,
the 15% penalty here is a relatively modest additional assessment.
Cf.
Page 486 U. S. 85
McCray, supra, at
291 U. S. 571
(12% additional assessment not oppressive). Although Mississippi
may not have succeeded in eliminating all danger of deterring
meritorious claims, we cannot say that the residual danger is
sufficient to render the statutory scheme irrational.
In short, unlike the double-bond provision condemned in
Lindsey, the means chosen in § 11-3-23 are reasonably
related to the achievement of the State's objectives of
discouraging frivolous appeals, compensating appellees for the
intangible costs of litigation, and conserving judicial resources.
See Lindsey, supra, at
405 U. S. 70. It
of course is possible that Mississippi might have enacted a statute
that more precisely serves these goals and these goals only; as we
frequently have explained, however, a state statute need not be so
perfectly calibrated in order to pass muster under the rational
basis test.
See, e.g., Vance v. Bradley, 440 U. S.
93,
440 U. S. 108
(1979). We are satisfied that the means that the State has chosen
are "reasonably tailored to achieve [the State's legitimate] ends."
Lindsey, supra, at
405 U. S. 78. We
therefore affirm the judgment of the Mississippi Supreme Court
denying appellant's equal protection challenge to § 11-3-23.
It is so ordered.
JUSTICE STEVENS and JUSTICE KENNEDY took no part in the
consideration or decision of this case.
[
Footnote 1]
Appellant did offer on appeal a federal due process challenge
based on the alleged "chilling effect" of unrestricted punitive
damages awards on the exercise of a litigant's right of access to
the courts.
See App. to Juris. Statement 135a. We read
this attack on the alleged open-endedness of Mississippi's punitive
damages awards to be distinct from the attack on the size of the
particular award that appellant has waged before this Court.
[
Footnote 2]
Similarly, appellant's challenges in this Court to the size of
the punitive damages award in no way qualify as "mere enlargements"
of claims made before the Mississippi Supreme Court. Under the mere
enlargement doctrine, "[p]arties are not confined here to the same
arguments which were advanced in the courts below upon a Federal
question there discussed."
Dewey v. Des Moines,
173 U. S. 193,
173 U. S. 198
(1899).
See also Stanley v. Illinois, 405 U.
S. 645,
405 U. S. 658,
n. 10 (1972).
Dewey makes clear, however, that the federal
question must be brought to the attention of the court below in
some manner. "A claim or right which has never been made or
asserted cannot be said to have been denied by a judgment which
does not refer to it." 173 U.S. at
173 U. S.
200.
[
Footnote 3]
Several States have enacted limits on punitive damages in
specified types of causes of action.
See, e.g.,
Fla.Stat.Ann. § 713.31(2)(c) (1988) (fraudulent filing of
mechanics' lien); Wash.Rev.Code § 9 A. 36.080 (1987) (malicious
harassment); Cal.Civ.Code Ann. § 1787.3 (West 1985) (consumer
credit denial).
[
Footnote 4]
Section 11-3-23 of Miss.Code Ann. (Supp.1987) provides:
"In case the judgment or decree of the court below be affirmed,
or the appellant fails to prosecute his appeal to effect, the
supreme court shall render judgment against the appellant for
damages, at the rate of fifteen percent (15%), as follows: If the
judgment or decree affirmed be for a sum of money, the damages
shall be upon such sum. If the judgment or decree be for the
possession of real or personal property, the damages shall be
assessed on the value of the property. If the judgment or decree be
for the dissolution of an injunction or other restraining process
at law or in chancery, the damages shall be computed on the amount
due the appellee which was enjoined or restrained. If the judgment
or decree be for the dissolution of an injunction or other
restraining process as to certain property, real or personal, or a
certain interest in property, or be a judgment or decree for the
sale of property, or some interest in it, to satisfy a sum out of
the proceeds of sale, or to enforce or establish a lien or charge
or claim upon or some interest in property, and the only matter
complained of on the appeal is the decree as to some particular
property or claim on it, the damages shall be computed on the value
of the property or the interest in it, if the value of the property
or interest in it be less than the judgment or decree against it;
but if the value of the property or interest in it be greater than
the amount of the judgment or decree against it, the damages shall
be upon the amount of the judgment or decree; provided, however,
the above penalty shall not be assessed against any condemnee
appealing from a special court of eminent domain in any
circumstances."
The penalty would appear to apply to both defendant-appellants,
such as Bankers Life, and plaintiff-appellants, who might choose to
challenge a recovery they view as too meager.
See Eagle Lumber
& Supply Co. v. Robertson, 161 Miss. 17, 135 So. 499
(1931) (applying former Mississippi penalty statute to unsuccessful
plaintiff-appellant).
[
Footnote 5]
The appellants in
Lindsey also attacked the
constitutionality of provisions of the statute that required
tenants challenging eviction proceedings to proceed to trial within
six months and to bring only certain claims and defenses. The Court
upheld these provisions against appellants' facial challenge.
Lindsey v. Normet, 405 U.S. at
405 U. S.
64-69.
[
Footnote 6]
Appellant argues that § 11-3-23 impermissibly burdens some
litigants' access to the State's appellate system. Although the
Court indicated in
Lindsey that the effective foreclosure
of a state right to appeal as to some litigants only -- for
example, indigent litigants -- might well violate equal protection
guarantees under even deferential scrutiny,
see Lindsey,
supra, at 77, 79, appellee rightly notes that appellant lacks
standing to challenge § 11-3-23 on this basis, because appellant
has not alleged that its own right to appeal has been foreclosed by
the statute.
See Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S. 610
(1973).
JUSTICE WHITE, with whom JUSTICE SCALIA joins, concurring.
I join Parts I and III of the Court's opinion but not Part II. I
continue to believe that
"the statute which gives us jurisdiction in this cause, 28
U.S.C. § 1257(3), prevents us from deciding federal constitutional
claims raised here for the first time on review of state court
decisions.
Cardinale v. Louisiana, 394 U. S.
437,
394 U. S. 438-439
(1969)."
Illinois v. Gates, 462 U. S. 213,
462 U. S. 247
(1983) (WHITE, J., concurring in judgment). Thus, I disagree with
the Court's analysis -- under "prudential"
Page 486 U. S. 86
standards -- of appellant's preservation of its challenge to the
punitive damages award here.
Ante at
486 U. S. 79-80.
Ultimately, because the majority properly declines to address
claims which I believe are not within this Court's jurisdiction, I
concur in Part II's result, but not its reasoning.
JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring in
part and concurring in the judgment.
I do not agree with the Court's analysis of our jurisdiction
over appellant's federal due process claim. I therefore do not join
Part II or footnote 1 of the Court's opinion. I join the remainder
of the opinion, and I agree with the analysis of Part II insofar as
claims under the Excessive Fines Clause and Contract Clause are
concerned. Moreover, for the reasons given below, I ultimately
concur in the Court's judgment with respect to the due process
claim as well.
In its brief on appeal to the Mississippi Supreme Court,
appellant expressly invoked the Due Process Clause of the
Fourteenth Amendment and argued that Mississippi law chilled its
fundamental right of access to the courts by authorizing unlimited
punitive damages. App. to Juris. Statement 135a. The Court does not
acknowledge this argument in its discussion of why the due process
claim was not raised and passed upon below, but only notes that
appellant did not present a due process argument clearly in its
petition for rehearing.
Ante at
486 U. S. 77.
The Court suggests that it need not consider the due process
argument raised in appellant's brief to the Mississippi Supreme
Court because it is "distinct from the attack on the size of the
particular award that appellant has waged before this Court."
Ante at
486 U. S. 75, n.
1. Standing alone, this observation is insufficient to deprive this
Court of jurisdiction over appellant's due process claim.
"Parties are not confined here to the same arguments which were
advanced in the courts below upon a Federal question there
discussed."
Dewey v. Des Moines, 173 U. S. 193,
173 U. S.
197-198 (1899).
See Illinois v. Gates,
462 U. S. 213,
462 U. S. 248
(1983) (WHITE, J., concurring in judgment).
Page 486 U. S. 87
Accordingly, the Court should examine the federal due process
argument that appellant makes in this Court to determine whether it
is "only an enlargement" of the due process argument it raised
below.
See Dewey, supra, at
173 U. S. 197.
In its principal brief in this Court, appellant contends that the
Mississippi Supreme Court changed its standard for judging when an
insurer may be liable for punitive damages and applied the new
standard retroactively to this case. Appellant explains that it
therefore had no advance notice of what conduct could render it
liable for punitive damages. Citing cases in which this Court has
struck down criminal statutes as void for vagueness,
e.g.,
Roberts v. United States Jaycees, 468 U.
S. 609 (1984);
Giaccio v. Pennsylvania,
382 U. S. 399
(1966), appellant maintains that this violated the Due Process
Clause. Brief for Appellant 40-43. Then, in a supplemental brief
filed after argument with the Court's leave, appellant expands the
due process argument pressed below and mounts a more general attack
on permitting juries to impose unlimited punitive damages on an
ad hoc basis. Post-argument Brief for Appellant 4-10.
Appellant has touched on a due process issue that I think is
worthy of the Court's attention in an appropriate case. Mississippi
law gives juries discretion to award any amount of punitive damages
in any tort case in which a defendant acts with a certain mental
state. In my view, because of the punitive character of such
awards, there is reason to think that this may violate the Due
Process Clause.
Punitive damages are awarded not to compensate for injury but,
rather, "to punish reprehensible conduct and to deter its future
occurrence."
Gertz v. Welch, Inc., 418 U.
S. 323,
418 U. S. 350
(1974). Punitive damages are not measured against actual injury, so
there is no objective standard that limits their amount. Hence,
"the impact of these windfall recoveries is unpredictable, and
potentially substantial."
Electrical Workers v. Foust,
442 U. S. 42,
442 U. S. 50
(1979). For these reasons, the Court has forbidden the award of
punitive damages
Page 486 U. S. 88
in defamation suits brought by private plaintiffs,
Gertz,
supra, at
418 U. S.
349-350, and in unfair representation suits brought
against unions under the Railway Labor Act, Electrical Workers,
supra, at
442 U. S. 52.
For similar reasons, the Court should scrutinize carefully the
procedures under which punitive damages are awarded in civil
lawsuits.
Under Mississippi law, the jury may award punitive damages for
any common law tort committed with a certain mental state, that is,
"for a willful and intentional wrong, or for such gross negligence
and reckless negligence as is equivalent to such a wrong."
483 So. 2d
254, 269 (Miss.1985) (opinion below). Although this standard
may describe the required mental state with sufficient precision,
the amount of the penalty that may ensue is left completely
indeterminate. As the Mississippi Supreme Court said, "the
determination of the amount of punitive damages is a matter
committed solely to the authority and discretion of the jury."
Id. at 278. This grant of wholly standardless discretion
to determine the severity of punishment appears inconsistent with
due process. The Court has recognized that
"vague sentencing provisions may pose constitutional questions
if they do not state with sufficient clarity the consequences of
violating a given criminal statute."
United States v. Batchelder, 442 U.
S. 114,
442 U. S. 123
(1979). Nothing in Mississippi law warned appellant that, by
committing a tort that caused $20,000 of actual damages, it could
expect to incur a $1.6 million punitive damages award.
This due process question, serious as it is, should not be
decided today. The argument was not appellant's principal
submission to this Court. The analysis in the briefs and the
discussion at oral argument were correspondingly abbreviated.
Although the Court could assert jurisdiction over the due process
question on the theory that the argument made here was a "mere
enlargement" of the due process argument raised below, it would not
be prudent to do so. Accordingly,
Page 486 U. S. 89
I concur in the Court's judgment on this question, and would
leave for another day the consideration of these issues.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I join Part I (except for footnote l) and Part III of the
opinion of the Court, and concur in its judgment. As to Part II, I
agree with JUSTICE WHITE that the question of our entertaining the
issues there discussed should be resolved as a matter of law, and
not of discretion, and I therefore join his opinion. The Court
having chosen not to follow that course, I agree with JUSTICE
O'CONNOR regarding the basis on which our discretion should be
exercised concerning the due process claim, and therefore join her
opinion.
JUSTICE BLACKMUN, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion, for I agree that
the Court should refrain from addressing appellant's challenge to
the punitive damages awarded against it. I also agree with the
Court's conclusion that appellant's challenge to Mississippi's
"penalty statute," Miss.Code Ann. § 11-3-23 (Supp.1987), is
properly before the Court under its appellate jurisdiction.
See 28 U.S.C. § 1257(2). Nonetheless, because I conclude
that the statute cannot survive scrutiny under the Equal Protection
Clause of the Fourteenth Amendment, I dissent from the Court's
conclusion to the contrary.
Section 11-3-23 "
is in the nature of a penalty, or a
condition of appeal.'" Pearce v. Ford Motor
Co., 235 So. 2d
281, 283 (Miss.1970), quoting Meek v. Alexander, 137
Miss. 117, 121, 102 So. 69, 70 (1924). Not all unsuccessful
appellants, however, are subject to its penalizing effect. The
statute imposes lump-sum "damages," calculated at 15% of the value
of the underlying judgment, on an appellant who unsuccessfully
appeals to the Mississippi Supreme Court a money judgment
Page 486 U. S. 90
or possessory action. [
Footnote
2/1] Although the penalty applies to both the defendant and the
prevailing but unsatisfied plaintiff who unsuccessfully appeals, it
does not apply to the plaintiff who unsuccessfully appeals an
adverse judgment or to the unsuccessful cross-appellant.
There can be little doubt that this damages assessment burdens
the statutory right of a litigant to appeal a money judgment. The
statute makes it substantially more expensive to exercise the right
if the judgment is ultimately affirmed, and it thereby obviously
creates a disincentive to appeal. [
Footnote 2/2] The Court concludes that
"the means chosen in § 11-3-23 are reasonably related to the
achievement of the State's objectives of discouraging frivolous
appeals, compensating appellees for the intangible costs of
litigation, and conserving judicial resources. "
Page 486 U. S. 91
Ante at
486 U. S. 85. In
my view, the 15% automatic penalty provision is not at all
"reasonably related" to any of these interests. [
Footnote 2/3] To the contrary, the relationship of
the statutory classification of a money-judgment appellant to the
asserted governmental goals "is so attenuated as to render the
distinction arbitrary [and] irrational."
Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432,
473 U. S. 446
(1985).
There is no rational relationship between the statute and the
State's asserted desire to compensate a prevailing appellee for
"having endured the slings and arrows of successful appellate
litigation,"
Walters v. Inexco Oil Co., 440 So. 2d
268, 274-275 (Miss.1983), whether the costs of that litigation
are measured in economic or noneconomic terms. There is no
reasonable justification for compensating only plaintiffs who
prevail against an appeal. Defendants who have successfully
defended in trial court against suits seeking money damages and who
are subjected to appeals that prove unsuccessful are similarly
burdened by the added emotional and financial costs of the
appellate process. Yet, under the statute, they receive no
"compensation" because the penalty is not imposed on nonprevailing
plaintiffs who unsuccessfully appeal. The statute arbitrarily
discriminates against defendant-appellants of money judgments, and
the State offers no justification for the distinction so drawn.
Not surprisingly, then, the Court makes no attempt to justify §
11-3-23 based upon the "compensation" objective, despite its
reference to that state interest. Instead, it upholds the penalty
statute as reasonably related to Mississippi's interest in
discouraging frivolous appeals and thereby protecting the
Mississippi Supreme Court "from being required to spend its time
and energy and resources on appeals thoughtlessly taken."
Walters v. Inexo Oil Co., 440 So. 2d at 275.
See
ante at
486 U. S. 81-82.
In
Lindsey v.
Normet, 405 U. S. 56
Page 486 U. S. 92
(1972), the Court explained that a State might adopt
"reasonable procedural provisions . . . to discourage patently
insubstantial appeals, if these rules are reasonably tailored to
achieve these ends and if they are uniformly and
nondiscriminatorily applied."
Id. at
405 U. S. 78.
But § 11-3-23 does not meet this standard. The penalty is neither
applied in a uniform and nondiscriminatory manner nor reasonably
tailored to discourage "patently insubstantial appeals."
Section 11-3-23 does not permit the Mississippi Supreme Court to
determine whether an appeal is frivolous; the 15% penalty is
imposed on certain unsuccessful appellants whenever the judgment is
affirmed, regardless of the substantial merit of the appellant's
case. Thus, even if, as in this very case, a money judgment is
affirmed by a narrow 5-4 majority of the Supreme Court, the
assessment automatically is made. Such a provision obviously sweeps
substantial appeals as well as frivolous appeals within its
deterrent net. [
Footnote 2/4]
The claim that § 11-3-23 operates to screen out frivolous
appeals is no more persuasive than was the same claim advanced in
Lindsey in support of the Oregon double-bond requirement.
This Court found the argument "unpersuasive" in
Lindsey
because the Oregon requirement
"bars nonfrivolous appeals by those who are unable to post the
bond, but also allows meritless appeals by others who can afford
the bond."
405 U.S. at
405 U. S. 78.
Similarly, § 11-3-23 not only discourages nonfrivolous appeals by
those who would avoid the risk of additional damages, but also
allows meritless appeals by those who can afford to assume that
risk. More strikingly, the statute allows an entirely frivolous
appeal by a
Page 486 U. S. 93
nonprevailing plaintiff without the incursion of any risk of an
appeal penalty. The Court provides no support for its conclusory
assertion that Mississippi rationally concluded that the group of
litigants susceptible to the penalty are those "most likely to be
deterred from bringing meritless claims."
Ante at
486 U. S.
84.
At bottom, the majority's reasoning in sustaining Mississippi's
mandatory penalty statute amounts to an assessment that § 11-3-23
applies to a larger group of appellants and burdens their right to
appeal less heavily than the statute struck down by the Court on
equal protection grounds in
Lindsey.
See ante at
486 U. S. 83-85.
But
Lindsey is not the benchmark by which we measure the
constitutionality of a discriminatory state statute burdening the
right to appeal. Each such statute must be justified by reference
to the governmental objectives it purportedly seeks to further.
Mississippi has failed to demonstrate that § 11-3-23 is rationally
related to its stated goals. The discrimination against appellants
from money judgments is arbitrary and irrational. Accordingly, the
judgment of the Mississippi Supreme Court denying appellant's equal
protection challenge to § 11-3-23 should be reversed.
I dissent.
[
Footnote 2/1]
Mississippi does not have an intermediate appellate court.
Appeals are taken directly from the State's 40 trial courts to the
Mississippi Supreme Court, which has appellate jurisdiction over
all matters originating in any of the trial courts, as well as
those coming to the trial courts from numerous administrative
agencies.
See Brief for Mississippi Trial Lawyers Assn. as
Amicus Curiae 4-5, and n. 4. Thus, "[e]very losing
litigant is given an automatic right of appeal" to the Mississippi
Supreme Court.
Walters v. Inexco Oil Co., 440 So. 2d
268, 275 (Miss.1983). That tribunal has observed that this
"unfettered automatic right of appeal brings its own evils."
Ibid.
[
Footnote 2/2]
The Court asserts that the 15% penalty is "a relatively modest
additional assessment,"
ante at
486 U. S. 84,
when compared to the Oregon double-bond requirement for a defendant
tenant, which the Court struck down in
Lindsey v. Normet,
405 U. S. 56
(1972). This assertion is facile. Pursuant to § 11-3-23, the
Mississippi Supreme Court imposed a mandatory $243,000 penalty
against appellant in the instant case; this was in addition to
extraordinary punitive damages. It is difficult to see the modesty
in this imposition.
It is true that the Oregon statute at issue in
Lindsey
was more burdensome on the right to appeal in the sense that, by
requiring that the bond be posted before an appeal was taken, it
effectively foreclosed appeals to indigent defendants.
See
405 U.S. at
405 U. S. 79.
But surely a penalty need not foreclose an appeal before it is
recognized as burdensome.
Cf. ibid. (disapproving the
Oregon scheme because it raises the stakes of appealing an adverse
judgment).
[
Footnote 2/3]
Because I conclude that § 11-3-23 is not reasonably related to
the state interests advanced in its defense, I need not address
whether those interests are "legitimate" for purposes of equal
protection analysis.
[
Footnote 2/4]
The unnecessarily broad sweep of § 11-3-23 is illuminated by
comparison to Mississippi Supreme Court Rule 38, adopted July 6,
1987, and effective January 1, 1988, which provides for sanctions
for the taking of a frivolous appeal in any civil case to which §
11-3-23 does not apply. It clearly reflects Mississippi's
recognition that frivolous appeals can be specifically identified,
and further demonstrates the irrationality of distinguishing
between appeals taken from money judgments and other appeals.