Cheatham v. Pohle

ATTORNEYS FOR APPELLANT

Thomas J. Lantz
David W. Paugh
Seymour, Indiana

ATTORNEYS FOR
AMICUS CURIAE

David W. Stone
Indiana Trial Lawyers Association
Anderson, Indiana

ATTORNEYS FOR APPELLEE

Andrew M. Auersch
Timothy J. O’Connor
Indianapolis, Indiana

ATTORNEYS FOR STATE OF INDIANA

Steve Carter
Attorney General

Scott A. Kreider
David L. Steiner
James B. Martin
Deputy Attorneys General
Indianapolis, Indiana

ATTORNEYS FOR
AMICUS CURIAE

John C. Trimble
Anthony M. Eleftheri
A. Richard M. Blaiklock
Insurance Institute of Indiana
Indianapolis, Indiana
_________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

DORIS CHEATHAM, )
)
Appellant (Plaintiff Below), ) Indiana Supreme Court
) Cause No. 40S01-0209-CV-471
v. )
) Indiana Court of Appeals
MICHAEL POHLE, ) Cause No. 40A01-0010-CV-329
)
Appellee (Defendant Below). )
__________________________________________________________________

APPEAL FROM THE JENNINGS SUPERIOR COURT
The Honorable Carl Taul, Special Judge
Cause No. 40D01-9803-CP-143
__________________________________________________________________

ON PETITION FOR TRANSFER

__________________________________________________________________

May 30, 2003

BOEHM, Justice.
Indiana’s punitive damages allocation statute provides that an award
of punitive damages is to be paid to the clerk of the court, and the clerk
is to pay seventy-five percent of it to the State’s Violent Crime Victims’
Compensation Fund and twenty-five percent to the plaintiff. We hold the
statute does not create an unconstitutional taking of property. Nor does
it place a demand on an attorney’s particular services in violation of the
Indiana Constitution.

Factual and Procedural Background

After Doris Cheatham and Michael Pohle divorced in 1994, Pohle
retained photographs he had taken of Cheatham in the nude as well as photos
of the two engaged in a consensual sexual act. In early 1998, Pohle made
photocopies of the photographs, added Cheatham’s name, her work location
and phone number, her new husband’s name, and her attorney’s name, and
proceeded to distribute at least sixty copies around the small community
where both he and Cheatham still lived and worked. Cheatham sued, alleging
invasion of privacy and intentional infliction of emotional distress, and
the jury awarded her $100,000 in compensatory damages and $100,000 in
punitive damages.
Indiana Code section 34-51-3-6, enacted in 1995, provides:
(a) Except as provided in IC 13-25-4-10, when a judgment that includes
a punitive damage award is entered in a civil action, the party
against whom the judgment was entered shall pay the punitive damage
award to the clerk of the court where the action is pending.
(b) Upon receiving the payment described in subsection (a), the clerk
of the court shall:
(1) pay the person to whom punitive damages were awarded twenty-
five percent (25%) of the punitive damage award; and
(2) pay the remaining seventy-five percent (75%) of the punitive
damage award to the treasurer of state, who shall deposit the
funds into the violent crime victims compensation fund
established by IC 5-2-6.1-40.

Ind. Code § 34-51-3-6 (1998).
Although Cheatham did not raise any constitutional issue in the trial
court, she appealed the judgment on two grounds. She argues that the
statute violates the Takings Clauses found in both the Indiana Constitution
and the Fifth Amendment of the United States Constitution. She also
contends that the statute demands an attorney’s “particular services”
without just compensation in violation of Article I, Section 21 of the
Indiana Constitution and that the statute imposes a tax upon her and her
attorney in violation of Article X, Section 1 of the Indiana Constitution.
Pohle cross-appealed, arguing that Indiana does not recognize the
tort of Public Disclosure of Private Facts, and that the trial court erred
when it allowed the jury to return a punitive damages award without
instructing it to consider Pohle’s financial condition.
The Court of Appeals addressed the merits of Cheatham’s claims and
found that there was no taking in violation of the Fifth Amendment, but
concluded that the statute violates Article I, Section 21 of the Indiana
Constitution by placing a demand on an attorney’s “particular services”
without just compensation. Cheatham v. Pohle, 764 N.E.2d 272, 277 (Ind.
Ct. App. 2002). The Court of Appeals rejected Pohle’s cross-appeal on the
ground that the issues were first raised in a post-trial motion to correct
error, and were not preserved for appeal. Id. at 274-75, n. 1. After the
Court of Appeals decision, the State filed a motion to intervene, requested
party status, and tendered a petition for rehearing. The Court of Appeals
granted the motion to intervene, but denied rehearing. Cheatham v. Pohle,
2002 Ind. App. LEXIS 1110 (May 28, 2002). We granted the State’s petition
to transfer.
We summarily affirm the Court of Appeals holding that Pohle preserved
no issue for appeal. The only remaining issues are Cheatham’s challenges
to the constitutionality of the punitive damages allocation statute. These
present only questions of law.

I. Punitive Damages in Indiana

In assessing the claim that the allocation statute takes property
without just compensation, it is essential to understand the nature of a
claim for punitive damages. The purpose of punitive damages is not to make
the plaintiff whole or to attempt to value the injuries of the plaintiff.
Rather, punitive damages, sometimes designated “private fines” or
“exemplary damages,” have historically been viewed as designed to deter and
punish wrongful activity. As such, they are quasi-criminal in nature.
Cacdac v. West, 705 N.E.2d 506, 510 (Ind. Ct. App. 1999) (punitive damages
may be awarded upon a showing of a “quasi-criminal” state of mind or
willful and wanton misconduct); Mitchell v. Stevenson, 677 N.E.2d 551, 564
(Ind. Ct. App. 1997); see also Smith v. Wade, 461 U.S. 30, 59 (1983)
(Rehnquist, J., dissenting) (citing Huber v. Teuber, 10 D.C. 484, 490
(1877)); Felix Forte, Joinder of Civil and Criminal Relief in Indiana, 7
Notre Dame Law. 499, 501 (1932).
As a matter of federal law, state legislatures have broad discretion
in authorizing and limiting the award of punitive damages, just as they do
in fashioning criminal sanctions. BMW of N. Am. Inc. v. Gore, 517 U.S.
559, 568 (1996). Victims in a criminal case have no claim to benefit from
criminal sanctions. United States v. Newman, 144 F.3d 531, 538 (7th Cir.
1998) (criminal law imposes punishment on behalf of all of society, but
equitable payments of restitution inure only to specific victims of
criminal conduct and do not possess a similarly punitive character);
Charlton T. Howard III, Note: Booth v. Maryland – Death Knell for the
Victim Impact Statement?, 47 Md. L. Rev. 701, 738, n. 93 (1988) (the
purpose of criminal punishment is to vindicate the interests of society as
a whole, not the individual victim) (citing Tison v. Arizona, 481 U.S. 137,
149 (1987)); Linda Curtis, Damage Measurements for Bad Faith Breach of
Contract: An Economic Analysis, 39 Stan. L. Rev. 161, 178 (1986) (for
punishment and deterrence purposes, criminal sanctions are more appropriate
since they cannot provide a windfall to victims). For the same reason, it
has been consistently held that civil plaintiffs have no right to receive
punitive damages. Durham v. U-Haul Int’l, 745 N.E.2d 755, 762 (Ind. 2001);
Reed v. Central Soya Co., 621 N.E.2d 1069, 1076 (Ind. 1993); Travelers
Indem. Co. v. Armstrong, 442 N.E.2d 349, 362-63 (Ind. 1982); Indiana &
Michigan Electric Co. v. Terre Haute Industries, Inc., 507 N.E.2d 588, 611-
12 (Ind. Ct. App. 1987); Miller Pipeline Corp. v. Broeker, 460 N.E.2d 177,
185 (Ind. Ct. App. 1984); Farm Bureau Mut. Ins. Co. v. Dercach, 450 N.E.2d
537, 541 (Ind. Ct. App. 1983).
To the extent punitive damages are recoverable, they are a creature of
the common law. Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 800
(Ind. 2001); Forte, 7 Notre Dame Law. at 501. As we have repeatedly held
in other contexts, the legislature is free to create, modify, or abolish
common law causes of action. McIntosh v. Melroe, 729 N.E.2d 972, 977 (Ind.
2000); Martin v. Richey, 711 N.E.2d 1273, 1283 (Ind. 1999). And, as a
matter of federal constitutional law, no person has a vested interest or
property right in any rule of common law. Munn v. Illinois, 94 U.S. 113,
134 (1876). As a result, the General Assembly is free to eliminate
punitive damages completely, as other states have done, and also has wide
discretion in modifying this “quasi-criminal” sanction. Indeed, several
jurisdictions have chosen not to recognize punitive damages as an
acceptable award in any form.[1]
Indiana, like several other states, has chosen an intermediate
ground–permitting juries to award punitive damages and thereby inflict
punishment on the defendant, but placing restrictions on the amount the
plaintiff may benefit from the award. The facts warranting punitive
damages must be established by clear and convincing evidence. Ind. Code §
34-51-3-2 (1998). Whether punitive damages may be awarded is usually a
question of fact. Reed, 621 N.E.2d at 1076.
In sum, Indiana law recognizes a right to assert a claim to be
compensated for a cognizable wrong and to recover on that claim to the
extent the law allows. But a number of consequences flow from the
fundamentally different nature of a claim to punitive damages. The
financial condition of the defendant is relevant, Hibschman Pontiac, Inc.
v. Batchelor, 266 Ind. 310, 317, 362 N.E. 845, 849 (1977), which it would
not be if the goal were to compensate the plaintiff, as opposed to
deterring or punishing the defendant. [2] Proof is required by a clear and
convincing standard rather than a preponderance of the evidence standard.
I.C. § 34-51-3-2 (1998). For our purposes, the essential point is that
because punitive damages do not compensate the plaintiff, the plaintiff has
no right or entitlement to an award of punitive damages in any amount.
Unlike a claim for compensatory damages, the trier of fact is not required
to award punitive damages even if the facts that might justify an award are
found.[3] Hibschman Pontiac, Inc., 266 Ind. at 317, 362 N.E. at 849.

II. Claims Under State and Federal Taking Clauses

Article I, Section 21 of the Indiana Constitution includes a
prohibition against the taking of property without just compensation. The
Fifth Amendment to the United States Constitution includes the same
proscription, and applies to the states through the Fourteenth Amendment.
Chicago Burlington & Quincy RR. Co. v. Chicago, 166 U.S. 226, 238-39
(1897). This Court ordinarily resolves questions that arise under the
Indiana Constitution by “examining the language of the text in the context
of the history surrounding its drafting and ratification, the purpose and
structure of our constitution, and case law interpreting the specific
provisions.” Richardson v. State, 717 N.E.2d 32, 38 (Ind. 1999) (quoting
Ind. Gaming Comm’n v. Moseley, 643 N.E.2d 296, 298 (Ind. 1994)). We look
initially to the language of the Constitution. McIntosh, 729 N.E.2d at
983. Insofar as the Takings Clauses are concerned, the federal and state
constitutions are textually indistinguishable. The federal Takings Clause
of the Fifth Amendment reads “nor shall private property be taken for
public use, without just compensation,” and the Article I, Section 21 of
the state constitution reads “no person’s property shall be taken by law,
without just compensation.” There are subjects, notably double jeopardy
and search and seizure, where the two constitutions have similar or
identical language but have received different treatment by the courts.[4]
Here, however, there is no difference in the terms “taken” or “property”
found in both constitutions, and the courts have treated these issues as
identical. B & M Coal Corporation v. United Mine Workers of America, 501
N.E.2d 401, 406 (Ind. 1986) (deciding, under both Article I, Section 21 and
the Fifth Amendment simultaneously, that a taking had occurred).
Accordingly, the following discussion addresses both the state and federal
Takings Clauses.
Both Article I, Section 21 of the Indiana Constitution and the federal
Takings Clause provide that “no person’s property shall be taken by law,
without just compensation.” Only “property” is protected from taking under
either clause. It has long been recognized that an accrued cause of action
may be a property right. Dague v. Piper Aircraft Corp., 275 Ind. 520, 529,
418 N.E.2d 207, 213 (Ind. 1981); Gnerlich v. Gnerlich, 538 N.E.2d 285, 288
(Ind. Ct. App. 1989). If the law recognizes a wrong, an injured person has
the right to be compensated for an injury. But it is equally well settled
in Indiana and elsewhere that no one has a right to recover punitive
damages, however outrageous the conduct of the offender. Durham v. U-Haul
Int’l, 745 N.E.2d 755, 764 (Ind. 2001); Orkin Exterminating Co. v. Traina,
486 N.E.2d 1019, 1022 (Ind. 1986); see also Gordon v. State, 608 So.2d 800,
801 (Fla. 1992); State v. Moseley, 436 S.E.2d 632, 634 (Ga. 1993); Shepherd
Components, Inc. v. Brice Petrides-Donohue & Assoc., Inc., 473 N.W.2d 612,
619 (Iowa 1991).

Specifically, any interest the plaintiff has in a punitive damages
award is a creation of state law. The plaintiff has no property to be
taken except to the extent state law creates a property right. Board of
Regents v. Roth, 408 U.S. 564, 577 (1972). The Indiana legislature has
chosen to define the plaintiff’s interest in a punitive damages award as
only twenty-five percent of any award, and the remainder is to go to the
Violent Crime Victims’ Compensation Fund. The award to the Fund is not the
property of the plaintiff. Nor is her prejudgment claim a property
interest. Rather, the claim she had before satisfaction was, pursuant to
statute, a claim to only one fourth of any award of punitive damages. As a
result, there is no taking of any property by the statutory directive that
the clerk transfer a percentage of the punitive damages award to the Fund.

A claim for punitive damages can be sustained only if it is
accompanied by a viable claim for compensatory damages. Sullivan v. Am.
Cas. Co., 605 N.E.2d 134, 140 (Ind. 1992); Allstate Ins. Co. v. Axsom, 696
N.E.2d 482, 485 (Ind. Ct. App. 1998); Bright v. Kuehl, 650 N.E.2d 311, 317
(Ind. Ct. App. 1995). Cheatham thus claims that an award for punitive
damages is “connected to” a claim for actual damages. From this, Cheatham
reasons that because she has a right to compensatory damages, she must have
a right to punitive damages as well. This confuses necessary preconditions
with sufficient ones. To be sure, a claim for compensatory damages is a
prerequisite to a claim for punitive damages, but it does not follow that
it is adequate to confer a right to that claim.
Several states have statutes that allocate punitive damages to the
state in some form similar to the Indiana version. BMW of N. Am., Inc.,
517 U.S. at 616, App. to Opinion of Ginsburg, J. (Ginsburg, J.,
dissenting); Charles F.G. Parkinson, Note: A Shift in the Windfall: An
Analysis of Indiana’s Punitive Damages Allocation Statute and the Recovery
of Attorney’s Fees Under the Particular Services Clause, 32 Val. U. L. Rev.
923, 928 (1998). Of the state courts that have addressed the issue, only
the Colorado Supreme Court has found an unconstitutional taking of
property, while statutes in Alaska, Oregon, Georgia, Florida and Iowa have
been upheld.
Evans v. State, 56 P.3d 1046, 1058 (Alaska 2002), held that Alaska
Statute section 09.17.020(j) (2002), which allocates fifty percent of a
punitive damages award to the state general fund, does not effect a taking
because it amounts to a cap on the amount of punitive damages that may be
awarded before any award is rendered to a plaintiff. The Alaska Supreme
Court determined that such a cap is consistent with the legislature’s power
to limit or abolish punitive damages. In DeMendoza v. Huffman, 51 P.3d
1232, 1247 (Or. 2002), the Oregon Supreme Court found that Oregon Revised
Statute section 18.540 (2001), which allocates sixty percent of punitive
damages awards to the state, also does not effect a taking because a party
has no prejudgment property interest in a punitive damages award. Mack
Trucks v. Conkle, 436 S.E.2d 635, 639 (1993), also found that Georgia Code
Annotated section 52-12-5.1(e)(2) (1989), allocating seventy-five percent
of punitive damages in a product liability case to the state, does not
amount to a taking because the societal interest in deterrence of wrongful
conduct is better served this way and the benefit belongs to society as a
whole. In Gordon v. State and State v. Moseley, the Florida and Georgia
Supreme Courts both found as we do that there is no vested property right
in an award of punitive damages. The Florida court found Florida Statute
Annotated section 768.73(2)(b) (Supp. 1986) to be constitutional. Gordon,
608 So.2d at 802. It also upheld subsection 768.73(4), providing that
attorney’s fees, “if payable from the judgment, shall, to the extent that
they are based on the punitive damages, be calculated based only on the
portion of the judgment payable to the claimant.” Id. In Shepherd
Components, the Iowa Supreme Court held that under Iowa Code section
668.1(2)(b) (1989), there is no vested right to an award of punitive
damages. Id. at 619.
Cheatham relies on Kirk v. Denver Pub. Co., 818 P.2d 262 (Colo. 1991),
for the proposition that the statutory requirement that a portion of the
punitive damages judgment be paid to the state victims’ fund constitutes an
unconstitutional taking. We do not agree with the rationale in Kirk, and
also conclude that the Colorado statute addressed in that case is
materially different from the Indiana version. The Colorado statute
required that the plaintiff, after having received the full judgment from
the defendant, pay thirty percent of the proceeds into a general state
fund. Id. at 263. The statute at issue in Kirk thus purported to vest the
state’s interest in the award only after the judgment had been paid to the
plaintiff. Id. at 266. The Colorado Supreme Court took the view that the
state therefore had no interest in the award before it was paid to the
plaintiff and the award became vested property of the plaintiff. The
effect of the statute was thus viewed as a taking of property received by
the plaintiff. To avoid this issue, the Indiana statute provides that the
defendant pays the entire amount of the punitive damages award to the clerk
of the court who then distributes twenty-five percent of the award to the
plaintiff. Until this occurs, the plaintiff receives nothing from the
judgment of punitive damages.
We also disagree with the underlying rationale of Kirk, which cited
Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), for its
conclusion that the Colorado statute amounted to a taking of the
plaintiff’s private property. In Beckwith, the U.S. Supreme Court held
that because interest earned on an interpleader fund was incidental to the
claimant’s ownership in that account, the government could not deprive the
claimant of that interest without initiating an unconstitutional taking in
violation of the Fifth Amendment. Id. at 162. The case stands for the
proposition that the right to receive interest on one’s property is one’s
property. But for the reasons already discussed, under either the federal
or the Indiana Takings Clause, there is no property right in a claim for
punitive damages. Rather, consistent with their punitive nature, punitive
damages are akin to a fine exacted by the government of Indiana to deter
and punish wrongdoers. Requiring payment of this fine to a victim
compensation fund rather than awarding it to a private citizen is well
within the state legislature’s authority.
Finally, Cheatham contends that the statute has the following
“deficiencies” and therefore constitutes a taking for four different
reasons:
(1) the statute does not expressly address the issue of whether or how
a punitive damages award may be compromised;
(2) it does not address how payments of a judgment in installments are
to be allocated between compensatory and punitive damages;
(3) it does not address whether the plaintiff is the only mechanism to
enforce a judgment, and if that occurs, whether or how the plaintiff
is to be compensated; and,
(4) it encourages an attorney to break obligations to the client by
reducing the fee incentive.
The first three of these are answered by the absence of any property right
in the judgment. If there is none, there is no unconstitutional taking,
irrespective of the resolution of these other issues. The last contention
presents no issue of substance. Many legal doctrines serve to reduce the
potential recovery by a civil plaintiff. The lawyer and the client get to
play the hand the legislature deals them, no more and no less. If the
claim is for compensatory damages plus one fourth of any punitive damages
award, the fee agreement and the expectations of both lawyer and client
must adjust accordingly.

III. Uniform and Equal Taxation

Cheatham argues that the statute imposes a tax on her and her attorney
in violation of Article X, Section 1 of the Indiana Constitution. We
disagree. Article X, Section 1 provides: “The General Assembly shall
provide, by law, for a uniform and equal rate of property assessment and
taxation and shall prescribe regulations to secure a just valuation for
taxation of all property, both real and personal.” Only the taxation of
“property” is governed by this constitutional provision. For the reasons
stated above, Cheatham has no property interest in the punitive damages
award. If Cheatham has no interest, whatever claim her attorney has to be
compensated by her is a matter of contract between her and the attorney.
The law defines the interest Cheatham had, and her attorney’s rights can be
no greater than hers. We find no serious Article X, Section 1 issue
presented by section 34-51-3-6.

IV. Demand on Particular Services

Unlike the Fifth Amendment, in addition to its Takings Clause,
Article I, Section 21 of the Indiana Constitution also provides that “no
person’s particular services shall be demanded, without just compensation.”
This provision applies only if both a “person’s particular services” are
rendered and they have been “demanded” by the State. Cheatham contends
that the effect of the statute is to demand her attorney’s “particular
services” without just compensation in violation of this provision. We
agree that the attorney’s services are “particular” as that term appears in
the Indiana Constitution. Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991),
provided us with the following test to determine whether there has been a
state demand of particular services: (1) particular services were
performed, (2) on the State’s demand, (3) without just compensation. Id.
at 411. There is no dispute that attorneys’ services may be “particular
services” within the meaning of this provision. Sholes v. Sholes, 760
N.E.2d 156, 162 (Ind. 2001); Webb v. Baird, 6 Ind. 13 (1854). To be
considered particular, services must be (1) historically compensated, and
(2) something required of a party as an individual, as opposed to something
required generally of all citizens. Bayh, 573 N.E.2d at 415-16. An
attorney’s services in a specific lawsuit meet that standard. Sholes, 760
N.E.2d at 162-63. But we find no demand in this arrangement. Cheatham
engaged her attorney and the attorney agreed to represent her, all with no
state intervention of any kind. In order for there to be a state demand on
a person’s particular services, there must be the threatened use of
physical force or legal process that leads that person to believe that they
have no choice but to submit to the will of the State. Bayh, 573 N.E.2d at
417. Here the attorney was free to accept or reject representing Cheatham
on whatever terms the two would agree.
There is no express or implied requirement in the statute that any
attorney represent any specific plaintiff. Nor does Cheatham have a right
to an attorney in any case where punitive damages may arise. Sholes, 760
N.E.2d at 165. And no attorney may be compelled to represent a plaintiff
to pursue punitive damages without compensation. Id. at 164. Nor is there
any requirement that attorneys represent clients without receiving a fee.
The statute limits the amount of the client’s recovery. If the parties
have a contingent fee contract that operates as a percentage of all amounts
recovered by the plaintiff, it may serve to reduce the amount on which the
attorney calculates the fee. But that presents no constitutional issue.
In the first place, any effect of the statute on the fee is attributable to
the fact that Cheatham and her attorney agreed to that arrangement.
Second, even if, as a practical matter, a fee based on a percentage of all
recovery is the only available arrangement, the statute places no demand on
the attorney’s services.
In Gorka v. Sullivan, 671 N.E.2d 122 (Ind. Ct. App. 1996), the Court
of Appeals held that there was no state demand on the services of
transportation carriers. In that case, the State requested the services of
transportation carriers and offered them a contract outlining the fees they
would receive for transporting Medicaid recipients. Id. at 131. The court
held that the offering of the contract did not constitute a demand of the
carriers’ services, but was instead a request that the carriers had the
option to accept or deny, so there was no unconstitutional demand. Id.
The same is true here. Indiana Code section 34-51-3-6 is merely a
limitation on the amount of recovery from a punitive damages award
permitted to a plaintiff. If the decision is made to pursue punitive
damages, attorneys and their clients do so with the statutory framework in
place to restrain the value to them of any recovery. The statute makes no
mention of attorneys or attorneys’ fees and there is no implication that
attorneys’ services to anyone have been demanded or requested by this
statute.
In sum, section 34-51-3-6 became effective in 1995. Cheatham and her
attorney had notice of this statute when the suit against Pohle was filed
in 1998. The attorney’s fees were subject to that obstacle just like all
other potential barriers to success in a contingent fee contract.

Conclusion

Section 34-51-3-6 does not exact a taking of private property or place
a demand on any attorney to undertake any representation. As a result, any
judgment for an amount awarded as punitive damages is subject to the
allocation required by section 34-51-3-6. The judgment of the trial court
is affirmed.

SHEPARD, C.J., and SULLIVAN, J., concur. DICKSON, J., dissents with
separate opinion, in which RUCKER, J., concurs.

DICKSON, J., dissenting.

The punitive damages scheme enacted in 1995 sought to modify
Indiana's common law regarding punitive damages by capping the maximum
amount of a punitive damage award at three times the amount of compensatory
damages or $50,000, whichever is greater, and by requiring seventy-five
percent of the final award to be allocated for use by the Violent Crime
Victims' Compensation Fund. Ind. Code §§ 34-51-3-5, -6. To facilitate
these objectives, this scheme requires that the statutory cap and
allocation be concealed from every jury considering a claim for punitive
damages. I.C. § 34-51-3-3. There is no statutory requirement that the
state pay any legal fees related to its share of the punitive damage award.

In declaring that the allocation required by Indiana Code § 34-51-3-6
does not constitute a taking of private property in violation of the
Takings Clauses of our federal and state constitutions, the majority relies
primarily upon its contention that punitive damage plaintiffs have no
property right in a judgment awarding punitive damages. I disagree. A
person's property interest in a judgment vests upon the entry of that
judgment by the trial court, not upon the eventual payment of the judgment
by the judgment debtor.
A judgment is a court's "final determination of the rights and
obligations of the parties in a case." Black's Law Dictionary 846 (7th ed.
1999). A judgment for money is property. Wilson v. Brookshire, 126 Ind.
497, 506, 25 N.E. 131, 134 (1890); Haynes v. Contat, 643 N.E.2d 941, 943
(Ind. Ct. App. 1994); Browning v. Walters, 616 N.E.2d 1040, 1047 (Ind. Ct.
App. 1993). I agree with the majority that a plaintiff's prejudgment claim
of punitive damages is not a property interest, but I contend that it
becomes a vested property interest upon the entry of a final judgment. The
constitutional limitations upon the power of the legislature to interfere
with rights established by a judgment have long been protected:
It is not within the power of a legislature to take away rights [that]
have been once vested by a judgment. Legislation may act on
subsequent proceedings, may abate actions pending, but when those
actions have passed into judgment the power of the legislature to
disturb the rights created thereby ceases.

McCullough v. Virginia, 172 U.S. 102, 123-24, 19 S.Ct. 134, 142, 43 L.Ed.
382, 390 (1898).
At the conclusion of the trial in this case, the jury here returned a
verdict in favor of Doris Cheatham awarding her $100,000 in compensatory
damages and $100,000 in punitive damages. The trial court thereafter
entered judgment "in favor of the Plaintiff Doris Cheatham and against the
Defendant Michael Pohle in the amount of Two Hundred Thousand ($200,000.00)
Dollars." Record at 88. Upon this entry by the trial court, the judgment
became the property of Doris Cheatham. I am convinced that Indiana's
statutory punitive damage scheme, which attempts thereafter to confiscate
this property at the point the judgment is paid, inescapably violates the
Takings Clauses in both the Fifth Amendment to the United States
Constitution ("nor shall private property be taken for public use, without
just compensation") and Article 1, Section 21, of the Indiana Constitution
("No person's property shall be taken by law").
Because I disagree with the majority's belief that Cheatham's
judgment is not property, I likewise reject its resulting conclusion that
the Indiana punitive damage statute does not violate the Uniform and Equal
Taxation Clause, Article 10, Section 1 of the Indiana Constitution. With
respect to the Cheatham's claim that the statutory scheme violates Article
1, Section 21, of the Indiana Constitution, which prohibits the State from
demanding the particular services of her attorney without just
compensation, I agree and would adopt the analysis and conclusions of
Judges Najam, Sharpnack, and Riley of our Court of Appeals. Cheatham v.
Pohle, 764 N.E.2d 272, 277-81 (Ind. Ct. App. 2002).
RUCKER, J., concurs.

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[1] In Nebraska punitive damages are constitutionally prohibited.
Distinctive Printing and Packaging Co. v. Cox, 443 N.W.2d 566, 574 (Neb.
1989). In Louisiana, Massachusetts, New Hampshire, and Washington,
punitive damages are permitted only if expressly authorized by statute.
La. Civ. Code Ann. art. 2315 (West 1997); Billiot v. BP Oil Co., 617 So.
2d. 28, 29-30 (La. Ct. App. 1993); Mass. Gen. Laws Ann. ch. 106, § 1-106
(West 1998); N.H. Rev. Stat. Ann. § 507:16 (1986); Wash. Rev. Code Ann. §
64.34.100(1) (West 1994).
[2] Taber v. Hutson, 5 Ind. 322, 324-25 (1854), originally took the view
that the jury may not consider the wealth of the defendant, but this is not
the case in recent times. State Farm Auto. Ins. Co. v. Campbell, No. 01-
1289, slip op. at 17 (Apr. 7, 2003).
[3] Consistent with the view that punitive damages are quasi-criminal in
nature, punitive damages in Indiana were long viewed as imposing
impermissible double jeopardy. Eddy v. McGinnis, 523 N.E.2d 737, 740 (Ind.
1988) (citing Taber, 5 Ind. at 325); Koerner v. Oberly, 56 Ind. 284, 286-87
(Ind. 1877)); Gosnell v. Indiana Soft Water Serv., Inc., 503 N.E.2d 879,
880 (Ind. 1987). This common law doctrine was changed by statute in 1984.
I. C. § 34-24-3-3 (1998).
[4] See Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (double jeopardy);
Brown v. State, 653 N.E.2d 77 (Ind. 1995) (search and seizure).