Crusty Old Tort Goes to Washington

Mississippians Johnny Valentine, a humble plumber, and Sandra Day got married in 1993. Depending on who you believe, the marriage was either an unmitigated catastrophe from the get-go or a match made in heaven.

Sandra went to work for filthy rich oil and real estate tycoon Jerry Fitch in 1997. The two began an affair in the Spring of 1998, and Sandra gave birth to Jerry’s daughter in February 1999. Sandra and Johnny got divorced in late 1999, and Sandra ultimately married Jerry in 2002.

This would have been just another sad tale of a rich dude boinking his married underling but for the fact that Mississippi is one of a handful of states that still recognizes the common law tort of alienation of affection, which dates back to at least the 10th Century. Johnny sued Jerry on that theory. A Mississippi state court jury found in Johnny’s favor, awarding $642,000 in compensatory damages and an additional $112,500 in punitive damages. The trial court entered judgment on the verdict and Jerry appealed.

In April 2007 the Mississippi Supreme Court affirmed the judgment in its entirety. Fitch v. Valentine (pdf, 54 pages). After rejecting Jerry’s invitation to shitcan the tort of alienation of affection, the court disposed of a variety of challenges based on allegedly erroneous evidentiary rulings and jury instructions, and the verdict being against the manifest weight of the evidence.

Jerry also challenged the punitive damages portion of the verdict based on the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The supreme court ruled that Jerry waived the issue by failing to raise it in the trial court.

Even so, the supreme court dealt with the merits of the due process claim in a single sentence appearing on Pages 25-26 of the opinion. In a line of cases dating back to 1989, the U.S. Supreme Court has held that the Due Process Clause imposes substantive limits on the amount of a punitive damages award. The Mississippi court ruled that the punitive damages award in this case, less than fifteen percent of the total judgment amount, was not “gross[ly] excess[ive]” for due process purposes.

After the Mississippi Supreme Court denied Jerry’s motion for reconsideration, Johnny’s lawyers instituted separate proceedings to collect the judgment amount. Jerry’s lawyers recently filed a motion (pdf, 17 pages) with U.S. Supreme Court Associate Justice Antonin Scalia in his capacity as Circuit Justice for the part of the country where Mississippi lies. Jerry wants Justice Scalia to stay the collection efforts against him pending the outcome of his soon-to-be-filed cert petition.

In his motion Jerry claims — correctly, it appears — that the Mississippi Supreme Court erroneously interpreted his due process argument as a challenge to the amount of the award. In truth, Jerry says, his argument is that the Due Process Clause also imposes substantive limits on the types of conduct that can constitutionally give rise to liability for punitive damages. Among the conduct a state can’t constitutionally punish via punitive damages is consensual sexual relations between consenting adults.

Endlessly funny is the fact that Jerry’s motion relies heavily on Lawrence v. Texas, 539 U.S. 558 (2003), in which the Court shot down a Texas statute criminalizing “sodomy” between consenting gay adults. Scalia, the sole audience for Jerry’s motion, wrote one of the most vigorous dissents of his career in that case.

Prediction: Jerry’s motion already rests on the “Read, Laugh, Deny, Discard” pile.

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  • Holly Springs, MS  On October 25, 2007 at 8:37 am

    They had a daughter not a son

  • genghishitler  On October 25, 2007 at 8:43 am

    Thanks, MS. I’ll make the correction.

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