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Phoenix, Arizona

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Proposition 102 and the November General Election

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With the election coming up in just a few weeks, I wanted to share my opinion about Proposition 102. This proposition has not generated a great deal of attention in light of all of the infighting between candidates. I see fingerpointing television attack advertising several times a day from Jon Kyl directed at Jim Pederson. I see attack advertising from JD Hayworth directed at Harry Mitchell. I see similar opponent attack advertising in response directed at each of these two candidates. I see a few ads directed at some of the ballot proposition items. However, I have seen little or nothing about Proposition 102. Proposition 102 would amend the Arizona Constitution by adding an additional section stating the following:

A PERSON WHO IS PRESENT IN THIS STATE IN VIOLATION OF FEDERAL IMMIGRATION LAW RELATED TO IMPROPER ENTRY BY AN ALIEN SHALL NOT BE AWARDED PUNITIVE DAMAGES IN ANY ACTION IN ANY COURT IN THIS STATE.

According to the publicity pamphlet compiled by the Secretary of State’s Office describing the effect on punitive damage awards, Proposition 102 has the support of the Scottsdale and Arizona Chambers of Commerce as well as State Representative Russell Pearce, a Member of the Arizona House of Representatives. The ballot proposition would prevent a jury from considering an award of punitive damages if the plaintiff in civil litigation is present in Arizona illegally.

I have the upmost respect for the supporters of this measure. However, for several reasons, I believe the ballot proposition is bad for Arizona.

First of all, in contrast to an award of compensatory damages in civil litigation, the purpose for an award of punitive damages relates to punishment of the wrongdoer and not on the plaintiff. While courts compare the punitive damages award to the plaintiff’s losses to ensure a proper and proportionate award, the bulk of a jury’s obligation when considering whether to award punitive damages focuses on the defendant’s conduct. A judge will not allow the jury to consider an award of punitive damages unless a plaintiff can show clear and convincing evidence that the defendant acted with an evil mind either intentionally causing harm or consciously disregarding substantial and known risks of harm.

This means that a jury examines the conduct of a drunk driver to understand whether he or she understood the risks of death or serious injury yet consciously disregarded these substantial risks when deciding to drive a car drunk. This means that a jury examines the conduct of a corporation which understood risks of manipulating corporate balance sheet and income statements to maximize how public shareholders will perceive its financial position yet disregarded these risks in hopes of artificially inflating stock prices. This means that a jury examines the conduct of an insurer making conscious decisions to embark on a campaign of rescinding or terminating money-losing insurance policies in violation of its contractual obligations to minimize costs at the expense of its policy-holders.

Each of these situations involves an in-depth examination into the defendant’s conduct in order to punish or discourage bad behavior. The risk of punitive damage awards makes individuals think twice before driving drunk. The risk makes corporations think twice before embarking on campaigns to artificially inflate stock prices or wrongfully take away insurance policies. Can you imagine what would happen if these risks were not present? If the risks of punitive damage awards were not present, I do not even believe that we would have seat belts or airbags in cars. I think that cars would continue to have gas tanks located in the rear making the risk of combustion an almost certainty in a rear-end crash. In short, I think consumers would not be as safe as they are today.

The problems of illegal immigration have nothing to do with this ballot proposition. I fail to see how an illegal immigrant would make a conscious decision not to cross the border into Arizona if he or she knew that punitive damages would never be awarded in litigation. Because punitive damages protect society and not the individual plaintiff, this ballot proposition serves no useful purpose other than giving defendants the wrong incentives to prevent bad conduct.

By the way, I have nothing to do with either side of this ballot proposition. I just reviewed it and have opinions. I approve this message to express my opinions. Whether you believe these thoughts to be right or wrong, free and fair debate can only improve our democracy. So whatever position you have on this and other issues, please remember to vote on November 7.