An ancient wrong and the Constitution
on Oct 23, 2007 at 6:27 pm
The age-old wrong of stealing another man’s wife — “alienation of affection” — is still recognized in six states, while being wholly or mostly abolished in 31 others. It traces its origins back at least to the Teutonic tribes of early Germany in the 10th Century. Now, a well-to-do businessman from Mississippi, facing a verdict of $754,500 for “alienating the affections” of the wife of a plumber, is asking the Supreme Court to impose a constitutional ban on such verdicts at least when they are used to punish the forbidden conduct. Asking for a stay of a Mississippi Supreme Court ruling upholding the full verdict, Jerry Fitch, Sr., of Holly Springs, Miss., plans to file his formal appeal this week. Although he tried to undo the entire damages award in state court, his appeal to the Supreme Court challenges only the $112,500 portion of the verdict that a jury awarded as “punitive damages.”
Fitch’s application for a stay is docketed as 07A324, Fitch v. Valentine. It is pending before Justice Antonin Scalia, as the Circuit Justice for emergency matters arising in Mississippi and other states of the Fifth Circuit. This case, it asserts, “presents an important question of Constitutional law.” The stay application can be downloaded here.
The claim is that the Constitution’s guarantee of due process forbids “state sanctioned punishment of extramarital conduct part and parcel to a loving relationship.” The punishment part of the verdict against him, the document contends, is an “arbitrary deprivation of property” because it is “based on a presumption of malice arising out of otherwise lawful conduct.”
The application stresses that Fitch is not claiming there is “a Constitutional right to adultery,” and that he “is not urging a prohibition on all attempts by the state to foster traditional forms of marital relationships.” It contends that “short term sexual liaisons, lacking the hallmarks of a deep intimate interpersonal component may be subject to state interference justified by less compelling reasons than should be manifest here.” Fitch noted that he married the woman involved, Sandra Day (formerly Sandra Valentine, now Sandra Fitch). While their relationship was “adulterous at the start,” the application says, “there was never any proof adduced that Mr. Fitch had no real affection and love for Sandra during the relationship.”
Sandra Day and Johnny Valentine, a plumber, had what apparently was a rocky marriage, with repeated complaints by her about gambling and drinking. They were still married when she went to work for Jerry Fitch, who has interests in the oil and real estate businesses in Marshall County and, according to the state Supreme Court, has a net worth of about $22 million. After Sandra became pregnant, Johnny Valentine grew suspicious, and when a daughter was born, had a test done that showed he was not the father.
He filed for divorce, and it was granted, on grounds of adultery. He sued Fitch in state court in December 1999, arguing that the marriage was normal until Sandra began working for Fitch. Fitch initially denied having sexual relations with Sandra, being the child’s father, or giving money to support the child. In later court filings, he admitted the relationship and his parentage. The jury in the case ruled for Valentine, and awarded $642,000 in compensatory damages and $112,500 in punitive damages. That is the amount Fitch now owes, plus 8 percent annual interest, if the verdict is not overturned.
In upholding the verdict in full, the Mississippi Supreme Court spent little effort on the constitutional due process claim. Initially, it said Fitch had not properly raised the issue, but it went ahead and considered it on the merits, and rejected the challenge. The procedural flaw “notwithstanding,” the state court said, “this Court has consistently recognized punitive damages as a legitimate form of relief in alienation of affections cases.” (Along the way, the state Supreme Court rejected a plea by Fitch, which he does not renew in his Supreme Court challenge, to abolish the common law tort of alienation of affections as outdated.) The Mississippi Supreme Court ruling on the dispute, which it called “a classic ‘he said’/’she said’/’the paramour said’ case,”, can be found here.
In his stay application, Fitch contends that the Supreme Court left open the punitive issue he is now raising when the Justices, in 2003, decided the case of Lawrence v. Texas, barring criminal prosecution for homosexual conduct between consenting adults in private. But the Court’s precedents, he argues, have “long recognized the personal liberty interests in jeopardy when a state actively interferes in the consensual adult sexual activity of its citizens.”
