Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.

PETITIONER: Browning-Ferris Industries of Vermont, Inc.
RESPONDENT: Kelco Disposal, Inc.
LOCATION: City Council of Richmond

DOCKET NO.: 88-556
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 492 US 257 (1989)
ARGUED: Apr 18, 1989
DECIDED: Jun 26, 1989

ADVOCATES:
Mr. Andrew L. Frey - on behalf of Petitioners
H. Bartow Farr, III - on behalf of Respondents

Facts of the case

Question

Media for Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.

Audio Transcription for Oral Argument - April 18, 1989 in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.

How do we get the federal law issue before us?

H. Bartow Farr, III:

Mr. Chief Justice, and may it please the Court:

Mr. Andrew L. Frey:

First of all, in looking to history let me just say that Mr. Farr neglects to mention or explain why every single commentator who has written on this subject disagrees with him.

Well, I'm--

H. Bartow Farr, III:

Our position today rests on two, I think, relatively straightforward propositions.

Mr. Andrew L. Frey:

This notion of the role of juries that he espouses is in fact inconsistent with the history because after Magna Carta the writ of misericordia was available to reduce excessive jury amercements.

Is it through your Excessive Fines Clause of the Constitution?

H. Bartow Farr, III:

First of all, that the Excessive Fines Clause of the Eighth Amendment does not apply to damages, punitive or not, awarded in private state court tort actions.

Mr. Andrew L. Frey:

I don't want to get bogged down in the history which has been thoroughly briefed on both sides.

--Well, there are three provisions that... three bodies of law or provisions of law that could regulate the excessiveness of damages awards in tort cases, punitive damage awards.

H. Bartow Farr, III:

Second, that in any event there is no basis in the Eighth Amendment, or otherwise, for the sort of intrusive second-guessing of jury verdicts the Petitioners propose.

Mr. Andrew L. Frey:

Let me say with respect to the Rummel point that was discussed that what Mr. Farr persists in ignoring is the element of legislative deference.

One is the Excessive Fines Clause of the Eighth Amendment and certainly the one we first think of as being potentially applicable.

H. Bartow Farr, III:

Now, before turning to the Eighth Amendment, I'd like to just point out briefly the context in which this claim arises.

Mr. Andrew L. Frey:

Rummel was a mandatory life sentence established by Texas, and in that context the Court said it wasn't going to find that the Eighth Amendment refused to permit that.

Well, is that the one you're arguing today?

H. Bartow Farr, III:

The issue in this case is not whether there should be any judicial review of punitive damage awards.

Mr. Andrew L. Frey:

The principle, though, and the principle of the dissenters in Solem against Helm was you have to defer where the legislature has made a judgment.

Is that the one--

H. Bartow Farr, III:

State law commonly provides for such review and punitive damage awards are routinely reduced under such standards or sometimes set aside altogether.

Mr. Andrew L. Frey:

That was the dispute in Solem.

I intend to--

H. Bartow Farr, III:

The reason that the Eighth Amendment is pressed in this case and in this Court, when it was just an afterthought in the courts below, is that the courts below upheld this award under the traditional common law standards.

Mr. Andrew L. Frey:

There is no legislative judgment in this case that underlies this award.

--that was raised below?

H. Bartow Farr, III:

Now, turning to the Eighth Amendment issue, I would like to suggest that before this Court adopts a constitutional rule that will be imposed on 50 state tort systems that the constitutional basis for that rule should be clear and fully supportive.

Mr. Andrew L. Frey:

Now, I don't want the Court to forget our common law non-constitutional review of excessiveness argument because it's of course much more interesting to debate the Eighth Amendment, but even if you decide the Eighth Amendment is inapplicable, you have to ask yourselves whether you have a responsibility in a federal case to establish a reasonable federal rule.

--That was raised below.

H. Bartow Farr, III:

And I would submit to the Court that that standard is anywhere but close to being met in this particular case.

From a federal court?