MEMPHIS COMMUNITY SCHOOL DIST. v. STACHURA
Legal provision: Reconstruction Civil Rights Acts (42 USC 1983)
ORAL ARGUMENT OF PATRICK J. BERARDO, ESQ. ON BEHALF OF THE PETITIONERS
Chief Justice Burger: Mr. Berardo, I think you may proceed whenever you are ready.
Mr. Berardo: Mr. Chief Justice, and may it please the Court:
We urge the Court in this case to affirm the rule of Carey versus Piphus.
In every 1983 case, except where nominal damages are awarded, litigants be required to prove their actual damages; that is to say there are no presumed or per se damages in the absence of proofs.
The trial court and the Sixth Circuit seem to indicate in their opinions concerning this case, that Carey would permit... Excuse me, that Carey applies only in the case of denial of procedural due process, that it doesn't apply where substantive due process may have been involved.
We think that there is no reason for that distinction.
Unidentified Justice: May I ask, counsel, because you started out with Carey v. Piphus, is it your position that damages, intangible damages, emotional distress and mental damages, are recoverable or not?
Mr. Berardo: Justice Stevens, we think that emotional distress damages are recoverable as an element of actual damages in any 1983 case for any constitutional deprivation.
Unidentified Justice: Including this one?
Mr. Berardo: Including this one.
Unidentified Justice: Oh, I misread your brief.
And, including a case like Carey against Piphus?
Mr. Berardo: Including a case like Carey against Piphus--
Unidentified Justice: If the denial--
Mr. Berardo: --If proofs had been made that the actions taken in that case had caused the litigants emotional distress.
1983 and we think Carey allow the Court to instruct the jury that actual damages may be awarded and that if actual damages are found that punitive damages may also be awarded.
Likewise, if there are no actual damages and a jury finds that nominal damages may be awarded to a litigant in a 1983 action, then punitive damages may also be awarded.
In addition, of course, a matter that is not before a jury, attorney's fees may be available to the litigant under Section 1988.
Unidentified Justice: --Mr. Berardo, did you say that punitive damages would be available in a case like this against the School District?
Mr. Berardo: Justice Rehnquist, our position throughout, and I think the instructions of the court in this case, were that punitive damages could not be awarded against the School District.
Unidentified Justice: Because of the City of Newport?
Mr. Berardo: Because of the City of Newport.
However, it is our position that the instructions given, which was the basis for this Court's grant of certiorari, in effect allows the jury to award a punitive award against the School District in violation of Carey, Newport, and other precedents.
Unidentified Justice: Say that again.
Our action does what?
Mr. Berardo: The instruction involved here allowed the jury to consider the intrinsic value of the constitutional rights that were defied.
Your Honor, my next point in my argument was to get to the sequence of the instructions.
Unidentified Justice: You go ahead.
You do it your way.
Mr. Berardo: And that will explain your question.
Unidentified Justice: You do it your way.
Mr. Berardo: First, the jury was authorized to award actual damages, being admonished not to consider speculative damages.
Then the jury was authorized, if they found no actual damages, to award nominal damages and in both cases to award punitive damages.
After having been instructed on damages in that manner, the jury was then instructed that it could award damages for the intrinsic value of the constitutional rights, taking into account the importance of the right in the history of our country and the importance of the right in the context of the activities in which the Plaintiff was involved at the time of the deprivation.
Sequentially, and because the jury has already been admonished not to award punitive damages against a municipal corporation prior to receiving the intrinsic value instruction, it is then permitted to look at the intrinsic value and award damages against the Board of Education for the intrinsic value of the right in the absence of any proof that there were damages that flowed from what the Board of Education did or that the intrinsic value is involved at all.
I think in that way, by viewing the instructions as a whole and looking at the sequence, it can be seen that the instruction is extremely prejudicial, first of all, to the Board of Education, but, secondly, to the rest of the defendants in the case.
The reason it is so prejudicial is because as to the rest of the defendants, they have already been considered in light of the punitive damages instruction and the additional inherent value instruction allows a multiplier effect after punitive damages have already been considered.
The objection to the instruction that was given and the instruction again is... the complaint of instruction is the intrinsic value instruction is that it violated the rule of Carey versus Piphus.
Secondly, that it allowed the jury to speculate as to damages which is a violation of Carey and other precedents.
The speculation is I think most troublesome to the defendants and petitioners in this case.
How can one measure the value of the First Amendment or any procedural due process right?
It invites the jury to order or prioritize or find a value for really a priceless right.
The instruction to the jury itself indicated that damages for the intrinsic value of those rights are very difficult to measure, but, in effect, that instruction told the jury that the value of those rights are great.
They were presumed by the court to have great value because of the context of the deprivation.
As a result, in terms at least of the objection that was made to the court, it was quite clear, not only to the court but to plaintiffs and defendants at trial, what the nature of the objection to the instruction was.
The court responded on the motion for judgment notwithstanding the verdict to further objection concerning the instruction, saying that counsel had not requested the court to segregate the damages between procedural and substantive deprivation.
We would urge the Court to consider that it would have made no difference that procedural and substantive deprivations were segregated for purposes of determining if the award was proper.
The real distinction is whether intrinsic value damages could be segregated from actual damages for the deprivation of the right.
There are several unwarranted consequences of the instruction.
First, the intrinsic value instruction conflicts with the availability of nominal damages.
There is just no reason to give a nominal damage instruction if you can, in the absence of nominal damages or in the absence of actual damages, give damages for the intrinsic value of these rights.
It allows speculation by the jury and it encourages plaintiffs to look at the value of a constitutional right involved before they file litigation.
In encourages some ordering of constitutional rights by value.
Secondly, it permits a multiplier in the context of... at least in the context of which--
Unidentified Justice: May I interrupt you for a minute because I must confess from the beginning I am having a little bit of difficulty.
Are you contending that the instructions told the jury that they could award damages even if there were no injury to the plaintiffs of any kind?
Mr. Berardo: --Yes, Your Honor.
I think if you read the instructions--
Unidentified Justice: I am reading from page 93.
"If you find that the plaintiff is entitled to a verdict, you may award him only such damages as will reasonably compensate him for such injury and damage you find from a preponderance of the evidence. "
Don't they in so many words say there has to be an injury?
Mr. Berardo: --Justice Stevens, even though the instructions seem to indicate that there has to be an injury, if you will look on page 96 of the instructions, after nominal damages have been discussed... I am assuming that a jury which has these instructions with them in the jury room deliberating is going through each paragraph, paragraph by paragraph, to determine what they are going to do with these instructions.
They have gone through actual damages, they have gone through nominal damages, they have gone through punitive damages, and then they find an instruction that says if you find plaintiff has been deprived of a constitutional right.
And, in this particular instruction, the second full paragraph on page 96--
Unidentified Justice: It says,
"damages for type of injury are more difficult to measure. "
Doesn't that assume there has got to be an injury?
Mr. Berardo: --That presumes an injury, Your Honor.
We think that violates Carey.
Unidentified Justice: The injury is the deprivation of the constitutional right.
Mr. Berardo: Excuse me, Your Honor.
Unidentified Justice: Isn't the injury the deprivation of the constitutional right?
Mr. Berardo: I think not.
I think that traditional tort recovery concepts require an injury to be something other than an abstract deprivation of a right.
It is not the deprivation of the right to--
Unidentified Justice: I would think you would say the court was implying or saying that it is enough to find injury in a sense of the deprivation of a constitutional right.
Mr. Berardo: --Then, Your Honor, I think Carey would require that nominal damages be awarded.
Unidentified Justice: Very well.
I would think you would say that is exactly what the court meant.
Mr. Berardo: However, damages as opposed to injury flow from the expectation that the plaintiff might have had to exercise certain rights, including First Amendment rights.
Unidentified Justice: Under Tennessee law may you recover in an automobile accident case for the abstract violation of a constitutional right not to be run down by an automobile?
Mr. Berardo: I think--
Unidentified Justice: Or do you just recovery the injury?
Mr. Berardo: --Mr. Chief Justice, I think that there would be no damages permitted for that kind of injury, but there would be damages permitted for pain and suffering and emotional stress under Michigan law if a constitutional or statutory right were, of course, involved.
Unidentified Justice: Loss of employment, permanent disability, all that sort of thing?
In that respect are we to take it that Tennessee law is no different from common law generally?
Mr. Berardo: That is correct.
Michigan law, Your Honor... In Memphis School District... This is a rather confusing case.
It is located in the eastern district of Michigan as opposed to Tennessee, but in any event, the law in Michigan is very simple on the issue of tort liability.
It is standard tort liability concepts that are applied across the country, and, in fact, those same tort liability concepts that prevailed at the time Section 1983 was drafted.
Another factor that flows from the giving of this instruction is that damages for procedural deprivations might be awarded where there is no proof of actual damages.
This violates both Carey and common sense.
Damages additionally would be allowed without regard to any objective standards for determining what those damages are.
There is no objective standard of which I am aware to measure the value of a First Amendment right or any procedural due process right and I think this Court has clearly stated in Carey and in other cases that--
Unidentified Justice: Let me ask you a hypothetical question.
Supposing you had a community that wouldn't... that didn't like one particular religion, say they didn't like Catholics, and there was a priest in town that wanted to go to mass and the police just wouldn't let him go to mass and he brought a 1983 and he couldn't prove any damages, he just was not allowed to exercise his right to go to church, damages or no damages?
Mr. Berardo: --I think, Justice Stevens, the answer to that question depends on the proofs that are put in by the plaintiff.
Assuming that the expectation of his right to exercise freedom of religion was such that it caused him humiliation in front of his friends in the community or that it caused him emotional distress that would be observable by a third party--
Unidentified Justice: Suppose it didn't cause him anything, he just couldn't go to church and he very deeply wanted to go to church.
Mr. Berardo: --Then he is entitled to nominal damages.
Unidentified Justice: Mr. Berardo, you don't question, do you, that a jury properly instructed in your view of the law of the case could have returned this amount of damages for the plaintiff or do you question that?
Mr. Berardo: Justice Rehnquist, we don't know what the jury considered in this case.
We don't know how deeply this award was tainted by the instruction.
Unidentified Justice: No, that is why I asked you the question.
Assuming that the jury had not received this instruction that you claim was wrong and had been properly instructed in your view of the law, do you think it could nonetheless... Could you claim that a verdict by this was excessive?
Mr. Berardo: I think you might claim that this verdict was excessive, Your Honor, because it was more than double what plaintiff's attorney asked for in his final argument.
Unidentified Justice: Well, that isn't an invariable.
Mr. Berardo: No.
Unidentified Justice: It wouldn't be unconstitutional.
Mr. Berardo: I agree, but in view of defendant's counsel it is certainly an indication that this award included factors other than what plaintiff's counsel at least argued to the jury at the conclusion of the trial.
I think it is just as likely, perhaps even more likely that in light of this particular instruction that this damage award did exceed what would have been given for actual damages.
In this case, for example, the plaintiff was suspended with pay and never lost a day's pay throughout the pendency of the case.
In fact, is still employed by the School District.
That particular fact which was, indeed, before the jury, that he had continued to be paid throughout the period of the dispute, was apparently ignored in calculating the damages.
Unidentified Justice: But, he got some very bad publicity, didn't he, of the same sort that a libel plaintiff is apt to get?
Mr. Berardo: Justice Rehnquist, he did get very bad publicity the same as a libel plaintiff might be expected to get, but this wasn't a libel for a deformation case.
It wasn't tried as one and it wasn't presented to the jury as one so that those kinds of per se damages that might be available in that case weren't available and weren't presented to the jury.
Unidentified Justice: Could there be a recovery for libel against a school board as such?
Mr. Berardo: I--
Unidentified Justice: As distinguished from individuals.
Mr. Berardo: --As a state law case, I think not.
I think they are entitled to immunity under state statute.
Unidentified Justice: Mr. Berardo, if we were to agree with you on the single question of proper instructions for damages for intrinsic value of a constitutional right, is there any need to do more than to remand it for a new trial on damages alone as opposed to liability?
Mr. Berardo: I think not, Justice O'Connor, for the reason that this Court in granting certiorari failed to grant certiorari as to Issue No. 2 in our petition which was more factually oriented, therefore, I presume from the Court's action on our petition that the facts in this case are settled and we are only talking now about damages and the proper calculation of damages.
At this juncture then it would be appropriate for me to say that we think that should be requested because of this tainted award is that this case should be remanded to the Sixth Circuit... Excuse me, remanded for retrial and that the decision of the Sixth Circuit be overruled.
Chief Justice Burger: Mr. Heldt?
ORAL ARGUMENT OF JEFFREY A. HELDT, ESQ. ON BEHALF OF THE RESPONDENT
Mr. Heldt: Mr. Chief Justice, and may it please the Court:
Mr. Berardo and I have been trying two different cases since at least 1982 when this case went to trial.
I guess it does my heart good we still are.
The issue here as we see it is not as it has been defined by the petition or by the petitioners.
The issue is rather does Carey versus Piphus require a jury to ignore the historical and contextual significance of the constitutional rights it finds were violated when it reaches the point in its deliberations that it must assess damages and assign a monetary value.
We think the answer is obviously no.
We don't expect a jury should be compelled to ignore both our history and the context of the activities in which the plaintiff was engaged in at the time his rights were violated.
Unidentified Justice: You think they could consider it wholly apart from any instruction?
Mr. Heldt: Wholly apart from any instruction?
Unidentified Justice: Suppose Judge Harvey had not given the instruction of which complaint is made here.
You feel the jury could and might well consider the nature of the rights infringed in the jury room.
Mr. Heldt: They certainly could.
I think that a plaintiff is entitled to an instruction assuring the jury that they may and that is all we are talking about here.
They may consider all sorts of things in the jury room that we generally never know about because we simply don't try and ask them afterwards in any legal way what did you do and how did you reach your results?
Unidentified Justice: And, hence, I take it, you would say it would be quite proper for the judge to say now as a matter of damages I am instructing you that there has been no evidence presented of any actual injury in the sense of monetary loss or pain or suffering or humiliation or anything like that.
But, there is a constitutional right involved and was violated and the jury may consider what that is worth and return a judgment for whatever damages they think it is worth.
I take it that is what you think the jury should be permitted to do.
Mr. Heldt: Well, I don't think that issue is presented in this case and I am loathe to speak on behalf of--
Unidentified Justice: I think it quite well is presented in this case.
So what is your answer to it?
Mr. Heldt: --My answer is that that would be permissible depending on the nature of the constitutional right which was violated.
Unidentified Justice: Right.
Mr. Heldt: As Justice Stevens said, if you are not allowed to go to church, perhaps that is a case--
Unidentified Justice: Then you have problems with Carey against Piphus.
You have got to limit that to procedural due process.
Mr. Heldt: --No, I don't think that is true.
I don't think that Carey requires that you must either establish some separate quantum of proof of damage or be precluded from any at all.
Carey expressly reserves the question to a later day depending exactly what constitutional right has been violated.
In Carey we dealt only with the right of procedural due process.
And, indeed, there was substantial evidence in a stipulated record that the student was guilty of smoking a marijuana cigarette on school grounds during school hours.
Unidentified Justice: But then you have to say that the holding of Carey against Piphus as to procedural due process violation damages would not be carried over into the First Amendment area.
Mr. Heldt: I think that is clearly correct.
I think that is unmistakable from the analysis of the opinion and I wouldn't seek to do otherwise.
Unidentified Justice: Counsel, can you explain to me the elements of $233,750?
Mr. Heldt: I am not sure I can, but I don't think that any plaintiff can.
Unidentified Justice: You can't even get close to explaining this, can you?
Mr. Heldt: I don't think any plaintiff can.
We simply do not in our legal system require the jury to set forth a calculus.
Unidentified Justice: How about $35,350 compensatory?
Mr. Heldt: They broke those awards out by party.
Frankly, it surprised me.
No one objected to that formulation of the special interrogatory.
I would have expected them to put the same numbers for each individual, but the jury did not.
Unidentified Justice: You don't think they drew lots for something like that, do you?
Mr. Heldt: Not that I am aware of.
Unidentified Justice: I mean, drew it out of a hat or something.
Sometimes juries are required to explain their verdict by special verdicts, is that not true?
Mr. Heldt: Well, there is a special verdict forum here, but when it came to the question of what value do you place on the damages that you find are appropriate, we don't ask them how did you do it, did you accept the plaintiff's lawyer's calculus and multiply these numbers together to come up with your verdict?
Did you compromise between what the defendant insisted and what the plaintiff insisted?
Did you adopt some third theory?
We don't ask them to tell us.
We don't put them on the witness stand as it were after they return their verdict and decide whether we agree with the number.
The traditional, legal and judicial remedy as you look at that number taken as a whole against the facts of the case and if it is sufficiently monstrous, there is authority to, either by remittur or new trial, start over again.
But, that has been rejected twice in this case by the trial judge himself as well as by the Sixth Circuit.
I would submit three propositions to suggest that our formulation that Carey certainly doesn't preclude the jury to take these items into consideration control here.
One is Carey itself.
The second is the facts of this case and especially the conduct of the trial itself justified a challenged instruction.
And, thirdly, the principal arguments that are raised here are raised for the first time.
You can read those Sixth Circuit briefs, you can read the motions for a new trial in the district court, and you simply will not find arguments about ambiguities of causation.
You will find no proposed and rejected instructions on causation or any different form of verdict as proposed by the defendants who now on brief suggest that the damages need to be segregated among plaintiff's theories, and as I understand Mr. Berardo's oral argument this afternoon, to suggest, well, no, I think that is useless.
It was never asked for below.
I don't think they are entitled to complain about it now.
I think I have already described the salient points with respect to our view of Carey.
It was a case on stipulated facts without any substantive underlying contest.
At least Mr. Piphus certainly didn't have a very good one on the stipulated facts.
The principal caught him in the school yard with a cigarette that got thrown in the bushes.
There was a strong smell of marijuana and he was suspended.
It really doesn't raise any substantive issues about was he guilty or not and how elaborate a hearing do we need to decide whether he was guilty or innocent.
Unidentified Justice: Of course, he was... It was held he was denied procedural due process.
Mr. Heldt: That is correct.
Unidentified Justice: Then that denial is regardless of whether or not after a hearing he would have been found guilty.
Mr. Heldt: But, what the Court in Carey says is that that creates an ambiguity of causation.
We don't know.
There is no proof that Mr. Piphus suffered any anguish, lost anything as a result of being suspended from school for 20 days, but even if he presented proofs, we don't know whether he was anguished because he was caught guilty in the school yard or is anguished because he didn't get a chance to plead for mercy before he was punished.
Unidentified Justice: At least that... The Carey opinion suggests that you don't get anything in the way of substantive damages by reason of the fact you were denied the constitutional right to procedural due process.
You have to show something, emotional distress, some traditional element of damage.
Mr. Heldt: Carey, I think, clearly requires that.
It says we will not presume it.
It is not too much to ask a plaintiff if they contend that their injury arises from the nature of the wrong, to get on the witness stand and try and explain it, try and quantify it in some way that the jury can deal with it, or the factfinder.
I believe Carey was non-jury case.
Unidentified Justice: How about my example where the judge says there is no evidence of any other damages except the denial of this constitutional right and he said, of course, the plaintiff hasn't gotten on the stand and claimed that it really hurt him any, but members of the jury, you are entitled to give damages for the violation of this right, whatever you think it is worth.
Mr. Heldt: I don't believe that Carey would permit that.
Carey certainly doesn't--
Unidentified Justice: No matter what the constitutional right is involved.
Mr. Heldt: --That is what I was going to say.
Carey clearly does not permit that if the only claim before the jury is the denial of procedural due process.
Unidentified Justice: What about other constitutional rights?
Mr. Heldt: It leaves that open and it says expressly it depends on what right you are talking about.
Are you talking about a First Amendment right to go to church, are you talking about a right to be secure in your home from--
Unidentified Justice: It might be too much to make a plaintiff get up on the stand and attempt to say how he really has been injured if some other kind of constitutional right is involved like freedom of speech or--
Mr. Heldt: --I don't think it is ever too much to expect a plaintiff to try and articulate that, but the question as a legal matter I don't see as being before the Court in this case because the plaintiff took the stand and he testified at length about the consequences of these deprivations on him.
His wife testified.
We brought in expert testimony with respect to the stigmatization issue.
Unidentified Justice: --So, it is just really a question of whether or not... what chance there is that the jury pay too much attention to the last part of his instruction.
Mr. Heldt: I don't--
Unidentified Justice: Because that instruction... You know, maybe he read it in the context that it isn't all that harmful, but that part of the instruction embodies the idea that the denial of the right itself entitles you to substantial damages without, as you say, your plaintiff getting on the stand proving anything.
Mr. Heldt: --I don't think that is true and I think it is belied by the balance of the instructions.
Unidentified Justice: Well, perhaps it is belied by the balance of the instructions, but do you feel that even the particular instruction that the petition brings here doesn't permit that?
Mr. Heldt: I don't think it permits it in the context of this case because it was never argued that way.
If you go back to my closing argument, I didn't ask for emotional damages and then say to the jury, now, give me some more, give me an award for the intrinsic value of a constitutional right.
I didn't argue that at all.
I said to the jury, my client has suffered 1,144 days of human misery waiting to get to this courtroom to vindicate himself and I think he is entitled to compensation for that and I then said to the jury, there are other ways to approach damages.
You don't have to do that.
You can approach damages, this court will tell you, I said to the jury, on the basis of the constitutional rights that you find violated and I had discussed those extensively in closing argument with respect to establishing the elements of my case that plaintiff had been denied of liberty interests, he had been denied a right of privacy, he had been denied a right of academic freedom, and he had also been denied a right to due process, an opportunity to be heard and to vindicate himself.
And, I discussed those at length and I said, you can evaluate those rights and you can make an award on that basis, and then I said, in either event, it really boils down to what Ed Stachura has been through, what has it made him live through in his own mind and in the public eye.
That is right in the transcript, exactly what I argued to this jury.
I didn't ask for things that perhaps I might have asked for if I interpreted the instruction the way--
Unidentified Justice: Are you the one who requested the instruction the judge gave about constitutional rights?
Mr. Heldt: --Yes.
Unidentified Justice: And, I suppose in the record here that that request is contained somewhere.
It is not contained in the printed record.
Mr. Heldt: It is not contained in the printed record.
It would be contained in--
Unidentified Justice: In the transcript.
Mr. Heldt: --No, it would be contained in the series of proposed written instructions which were presented to the court before trial.
Unidentified Justice: Well, isn't that in the record?
Mr. Heldt: Yes, but not in the transcript.
Unidentified Justice: But, it is in the record that has been lodged here?
Mr. Heldt: Yes, yes, it is.
It was not asked for so we could ask for two measures of recovery, one for Mr. Stachura's mental anguish and a second measure of recovery for some intrinsic or inherent value of a constitutional right.
And, I think that is well demonstrated by the closing argument.
We simply didn't ask for that.
We said you can do it in one of two ways.
In either event, the teaching of Carey that there must be proof of actual damage before the jury is allowed to cogitate on what monetary value to place on those damages I think is unmistakable.
Unidentified Justice: You are saying as long as you get on the stand and prove up a major injury by the way of emotional distress, if it so happens you have been denied the right to go to church and that is a denial of an important constitutional right, the jury should maybe double the damages it otherwise would have awarded just because of the nature of the constitutional right that is involved.
Mr. Heldt: If you are asking me do I think that is a permissible argument for plaintiff to make--
Unidentified Justice: I thought that was the argument you were making.
Mr. Heldt: --No.
I am saying that they are entitled to consider the significance of the conduct in which my client was engaged and the significance of the rights which are violated in deciding whether his mental anguish is genuine, in deciding how big it is, how severe it is.
Unidentified Justice: That is what I say.
You would say the jury should be able to give more damages for mental anguish.
If the constitutional right is not being able to go to church, then perhaps say the denial of a procedural due process.
Mr. Heldt: No, I would formulate it differently.
I would say there is a world of difference between a plaintiff who suffers mental anguish because a tornado came out of the midwestern skies and killed his family.
He suffers all the mental anguish in the world, but it comes from something that is unpredictable and uncontrollable and that is just a part of life.
That is not the same as the plaintiff who instead of being struck down by a tornado is struck down by his professional colleagues in a scheme to scapegoat him to protect their own skin.
Unidentified Justice: Counsel, do you practice in this county regularly?
Mr. Heldt: Do I practice in Memphis or in Port Huron when the court sits?
Unidentified Justice: In Michigan--
Mr. Heldt: I practice with some regularity in that state and in those counties, yes.
Unidentified Justice: --What is the average death value in a civil action in your practice?
Mr. Heldt: As I understand it... I have never tried a wrongful death case.
Unidentified Justice: Have you heard of any?
Mr. Heldt: As I understand it, in Wayne County, the county in which Detroit resides, it is probably in excess of seven figures.
I understand in Port Huron, Michigan, 50 miles to the northeast, it is probably less than six figures.
Unidentified Justice: Less than this, so this is more than he would get if he was killed.
Mr. Heldt: I don't think that is true.
You asked what average range of verdicts are in two counties in cases that I have never tried.
I am not responsible for justifying those.
I am sure there is an overlap in both cases.
I think there is more in damage to this case than simply mental anguish.
As I indicated, I think my client's privacy interests were violated.
He became a public figure.
The question is is that shown by evidence?
I mean, we are not speculating about it.
It is shown by the myriad of harassing phone calls.
I think it is shown by the refuge dumped on his porch.
The man became an involuntary public figure.
I don't think you can just call that mental anguish and say that takes care of the recovery.
He lost his zest for teaching.
He couldn't be a zealous advocate of his own students.
He testified to that.
He said going back to school in the fall of 1979 under court order was the hardest thing he ever did in his life.
At the time of trial he said there is no zeal any more, there is no fun.
I tried to do a job and look what has happened to me without ever the opportunity to defend myself.
I think that is a loss that is something other than measured by mental anguish.
We are not asking the jury to speculate about it.
There is testimony in the record that that is a real live, living and breathing loss.
We offered expert testimony unrebutted in this record that Mr. Stachura was foreclosed from a definite range of employment opportunities.
His professional career was dead.
That is a loss.
It doesn't translate itself into mental anguish.
Unidentified Justice: Well, supposing this had been a diversity case that was being tried before Judge Harvey in Port Huron and the defendant was someone... the school board had done exactly these same things to the plaintiff except there was no claim that there was a federal constitutional violation, it was a claim that it was a violation of Michigan state law.
The plaintiff suffered all the exact same damages that you say your client did.
Now, is your client entitled to an extra measure of damages over the hypothetical case I proposed simply because his identical damages stem from a violation of a First Amendment rather than state law?
Mr. Heldt: No, I don't think so and I don't think this instruction says that.
It is not different than if the state court in your hypothetical instructed that you may take into consideration that the plaintiff has suffered damages because the defendant violated state law.
They weren't just merely negligent.
Unidentified Justice: Well, isn't the real question we have whether these instructions then permitted the jury to base their award of damages in part or in whole on the jury's estimate of the intrinsic value of the constitutional right as opposed to all those things you have been telling us about?
Mr. Heldt: Well, that is the issue as framed by the petitioner and to that we say, first of all, that all the language of the instruction says is you may take into consideration the roots of these rights and their application in the context of Mr. Stachura's conduct at the time those rights were violated in deciding what quantum of damages should be awarded and that we did not argue... We simply did not ask the jury to award some extra element, award something over and above the reasonable value that they placed on his suffering.
That they placed it on a higher plane that I did... I mean, there is simply no controlling precedent or law to suggest that there is something wrong with that.
Indeed, not only the district court but the Sixth Circuit said these numbers are justifiable.
They did not shock Judge Harvey's judicial conscience.
He sits up there and tries cases every day.
They did not shock the conscience of the Sixth Circuit and I don't think in the light of the kinds of verdicts that are returned today, I just... I think I read about one in the New York Times in the last 24 hours, $13 million for somebody who was killed in a AMC Jeep.
I don't think $300,000 in this case is at all unreasonable in modern society.
If it was maybe $2 million I might gulp when I make that argument, but I just don't think that is the problem here.
Unidentified Justice: But that isn't the allegation, is it?
We are not being asked to do something based on the size of the verdict.
Mr. Heldt: That seems to be Mr. Berardo's argument here today.
He says I don't know how much the jury awarded for this, but after all, it was more than Mr. Heldt asked for and it must mean, therefore, that the jury was misled by this instruction.
You have to remember that I think he has misread the whole text and tenor of the court's instructions.
The court, three different times in laying out the elements of my case, things that I must prove by a preponderance of the evidence, said one of the things I must prove is that the defendants by their conduct proximately caused the damage to Mr. Stachura.
Unidentified Justice: But you weren't satisfied with those instructions.
You asked for the additional instructions.
Mr. Heldt: I asked only for an instruction which said if you find there is damage, and there is clearly damage in this record, you may take into consideration in deciding what amount of money to place on that damage, the fact that these are constitutional rights and that they are important rights that the teacher was entitled to engage in--
Unidentified Justice: In short, if except for the fact that there were constitutional rights involved, you would have found $50,000 worth of damage, because of constitutional rights you are entitled to return $200,000.
Mr. Heldt: --I don't think that is what the instruction says.
Unidentified Justice: Or one million.
Did it put any limits?
Mr. Heldt: The only limit was imposed by the plaintiff's complaint which, as I understand it, was considerably higher than the amount returned by the verdict.
I did not draft the complaint and I did not select the numbers in it.
But, as I recall, the complaint raised the issues of some larger amount.
What I want to continue saying, because I think it is important to understand the distinction in a way the jury instructions are drafted, plaintiff is obligated to prove under these instructions every element of his case, including the conduct of the defendants prior proximately caused damage to the plaintiff.
That is generally a threshold legal question.
It is tested as it was here by motions for directed verdict at the close of my proofs.
Did the plaintiff prove sufficient damage that a jury could find that element has been met?
And, of course, the district court said, yes, there is sufficient evidence in this record to find some damage and I am going to allow the case to go to the jury.
Every single time this court instructed... He actually did it four times, the district court actually did it four times, three times on Mr. Stachura's claims and a fourth time on the student plaintiff, James David McDonald's claim, as well.
And, the court said, even in the student plaintiff's case, although the student plaintiff only asks for nominal damages and nothing more, one of the elements that James David McDonald must prove is that he suffered damages as a result of... as a proximate result of the conduct of the defendants.
And, it is not hard to understand in this record why the jury no-caused Mr. McDonald because Mr. McDonald didn't take the stand and he didn't try and testify that he suffered some damage and there was no expert testimony of damage.
There was no testimony that James David McDonald had been damaged at all.
What Mr. Berardo suggests is that the damage instructions have to be merged.
And, in fact, the opposite is the case.
I started to say that once the court is satisfied that a plaintiff has met that element of proof, has established some quantum of damage, the case goes to the jury and the instructions on damages are merely a guide to assessing and weighing the damages that the jury is obligated to find in order to satisfy those elements of proof.
It tells the jury what things it may take into consideration, what things it ought not to take into consideration, it posits a test, you ought to try and put the plaintiff in the same position as he had been in if his rights had not been violated.
The instructions are not how to award damages but how to assess damages if you find there are any at all.
There are no four categories of damages in the special interrogatory form as Mr. Berardo would suggest.
That special interrogatory form doesn't say how much damages do you award to compensate Mr. Stachura, and if none, what nominal damages do you award, and if you award either, do you award punitive and then create a fourth category and say, oh, yes, now what damage is the award for the value of constitutional rights?
At all times there were only three categories.
And, indeed, the word compensate or compensation appears twice in the very instruction that is before this Court.
It is not non-compensatory damages, it is merely a part of the calculus by which one places a value on things that are generally intangible.
What is the value of a loss of a leg?
You can't decide that without some notion of what it is like to live life with two legs and what it might be like to live life with only one.
I submit that there is no basis in this case for a reversal of the Sixth Circuit.
The jury may certainly consider the significance of the rights before it as a part of the process of evaluating what damages to award.
No inherent value was sought or argued.
And Rule 51 certainly doesn't count.
It is the raising of such things as improper causation instructions for the first time in this Court.
I don't think there is any meaningful prejudice or probability of prejudice that necessitates a remand for any purposes and I would ask the Sixth Circuit be affirmed.
ORAL ARGUMENT OF PATRICK J. BERARDO ON BEHALF OF THE PETITIONERS -- REBUTTAL
Mr. Berardo: Mr. Chief Justice, and may it please the Court:
Just a couple of very brief points.
First of all, to say the principal arguments here are raised for the first time belies the fact that the arguments to the jury and the entire presentation of this case to the trial court from defendants' side was aimed at attempting to limit the damages to those that were caused by the action of the defendants.
Causation has been an issue throughout this case and continues to be the issue today.
The instruction, we submit, does not adequately reflect the fact that causation is the elementary principle of damages that overrides the entire system of tort compensation.
Unidentified Justice: Does your objection go to causation?
Mr. Berardo: Justice O'Connor, I think so.
Unidentified Justice: As I looked at it, your objection to the instruction was that they allowed the jury to speculate on the value of a constitutional right citing Carey.
Mr. Berardo: To say speculate to me means to permit the jury to determine damages without relation to objective factors and without relation to what caused the damages.
In fact, the instruction itself defined a violation of constitutional rights or a deprivation of constitutional rights as the injury, then went on to allow damages to be awarded without regard to either causation or determination of actual injury.
I think if you read that instruction, you will get that flavor.
Notwithstanding the rest of the precautionary instructions, the fact that it is given last in that context would allow the jury to award damages without regard to actual injury.
Secondly, to say that Carey versus Piphus is not the substantive due process case is not entirely accurate because Briscoe in a companion case had a free speech claim concerning his earring and that, I submit, was before the Court at the time that was decided.
The Court at that time declined to say that the rule didn't apply in substantive due process cases but left the question opened to be determined in each individual circumstance depending upon the right involved.
I think additionally it is inconsistent for counsel to argue that after asking for an award... Excuse me, after asking for an instruction on damages that he can then take the position, either before the jury or before this Court, that the instruction is harmless when, in fact, the intent of the instruction was to permit damages to be awarded and to permit the jury to assess factors in assessing the damages against the defendants that otherwise would not have been assessed.
Finally, proof of actual damages in this case does not cure the error of this overbroad instruction.
It only exacerbates the error.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.
Unidentified Justice: The Honorable Court is now adjourned until Monday next at ten o'clock [= 10:00].