Bunch v. King County Dept. of Youth Serv.

• Court: Washington Supreme Court
• Writing for the Court: Sanders
• Citation: Bunch v. King County Dept. of Youth Serv., 116 P.3d 381, 155 Wn.2d 165 (Wash. 2005)
• Decision Date: 21 July 2005
• Docket Number: No. 75103-0.
• Parties: Ralph Dwight BUNCH, Respondent and Cross-Petitioner, Jeffrey Morphis and Dwight Preston, Plaintiffs, v. KING COUNTY DEPARTMENT OF YOUTH SERVICES, Petitioner and Cross-Respondent.

116 P.3d 381

155 Wn.2d 165

Ralph Dwight BUNCH, Respondent and Cross-Petitioner Jeffrey Morphis and Dwight Preston, Plaintiffs, v. KING COUNTY DEPARTMENT OF YOUTH SERVICES, Petitioner and Cross-Respondent.

No. 75103-0.

Supreme Court of Washington, En Banc.

Argued March 17, 2005.

Decided July 21, 2005.

Howard Mark Goodfriend, Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Regina Cahan, Susan Nathalie Slonecker, Seattle, for Petitioner.

Charles Kenneth Wiggins, Kenneth Wendell Masters, Bainbridge Island, Jerry Robert McNaul, McNaul Ebel Nawrot et al Mary Ruth Mann, Law Offices of Mary R. Mann & Associates, Seattle, for Respondent.

Stewart Andrew Estes, Keating Bucklin & McCormack, Michael Barr King, Linda Blohm Clapham, John Benjamin Kerr Schochet, Lane Powell PC, Seattle, for Amicus Curiae Washington Defense Trial Lawyers.

Patricia Sue Rose, Richard D. Reed, Seattle, for Amicus Curiae Washington Employment Lawyers Ass'n.

Debra Leigh Williams Stephen, Bryan Patrick Harnetiaux, Spokane, Amicus Curiae Washington State Trial Lawyers Ass'n.

SANDERS, J.

¶ 1 Ralph Bunch sued King County Department of Youth Services for racial employment discrimination, obtaining over $600,000 in a jury award. The Court of Appeals affirmed but reduced the noneconomic portion of the damages from $260,000 to $25,000, an award which Bunch could accept or opt for a new trial on the damages issue alone. The county petitioned this court for review of the limitation of a new trial to damages only, which we denied. However, Bunch cross-petitioned, challenging the Court of Appeals' remittitur. We granted review and now hold the Court of Appeals improperly granted the remittitur.

FACTS AND PROCEDURAL HISTORY

¶ 2 Ralph Bunch is an African-American, who served in the Navy before working as a prison guard at the Monroe reformatory from 1979-91. In 1991 he switched to the Department of Youth Services in juvenile detention. His supervisor, colleagues, and the director of the department all praised Bunch's performance with the inmates.

¶ 3 Despite good reviews, one fellow detention officer testified that management viewed Bunch as a problem: "Mr. Bunch was thought of as a problem because he spoke out against things that he felt were wrong." Report of Proceedings (RP) at 1396. In 1995 and again in 1998 Bunch testified against the county in employment discrimination trials and later noticed increased disciplinary action by the management.

¶ 4 Bunch was disciplined for a variety of minor offenses. In May 1995 he was suspended for five days for allegedly swearing at a youth during a heated exchange between several inmates. Another staff member heard the exchange and denied hearing Bunch swear. Bunch was also suspended for not reporting the sexual abuse of an inmate. Bunch believed the incident had already been reported. He was suspended for 10 days for driving away from the facility during his lunch break, an action that Bunch routinely observed others doing without punishment. Youth Services Director Bob Williams noted this punishment was the severest he had observed, and he was unaware of any white person being punished for leaving the facility. He reduced the total days of Bunch's suspensions based on the progress he saw in Bunch.

¶ 5 Bunch was later reprimanded for using a wrist lock on an inmate, a move he had used before and had never been told was forbidden. He was suspended for five days for giving a letter of recommendation directly to an inmate. Another staff member testified to writing and delivering similar letters without any reprimand. Bunch was reprimanded for violating the "level system,"¹ and for horseplay with an inmate, which was common. Bunch believes he was the only person to be disciplined for violating the level system, and other testimony confirms this suspicion. A number of other employees also testified of racial discrimination at the department, including disparate discipline for violations.

¶ 6 Bunch sued the department for employment discrimination in 1999 under Washington's Law Against Discrimination, chapter 49.60 RCW.² In April 2001 management decided to terminate Bunch's employment based on the testimony of several inmates that Bunch showed them an R-rated video on January 1, 2001. The inmates took polygraph tests with varying results. Bunch denied showing that or any other video.

¶ 7 Bunch now works elsewhere as a security guard, making less than he did at the county. He described the effect on his family as a "phenomenal . . . crushing blow financially." Report of Proceedings (RP) at 1182. He had to explain the termination to his wife and three children. Bunch also testified his time at the county was "pretty horrendous. Uh, pretty, uh — that type of harassment, it's, uh—it's bad. Overwhelming." RP at 1180. "It definitely had an effect on my personal life at home. It, uhm, . . . depression, you know, on my part. And, uh—but I'm a survivor." Id. He was concerned about getting another good job because of his record. RP at 1184. When asked if he was angry about the incident, he said: "Sure, I get angry, but, you know, you have to be in control of yourself. I try to be in control all the time of myself. Of course I'm angry." Id.

¶ 8 A jury found the county discriminated and retaliated against Bunch, and awarded him $3,500 in lost past wages and fringe benefits, $340,000 in lost future wages, and $260,000 in noneconomic damages. The county moved for a reduction in the noneconomic damages or a new trial. The trial court denied the motion. The court also awarded Bunch attorney fees of $166,754.50 and costs of $10,126. The county appealed.

¶ 9 The Court of Appeals affirmed in part and reversed in part. Bunch v. King County Dep't of Youth Servs., noted at 119 Wash. App. 1034, 2003 WL 22839943 (2003). The court reversed the trial court's denial of remittitur and reduced the noneconomic damages from $260,000 to $25,000. The court determined the evidence was insufficient to support the award, it was motivated by passion and prejudice, and it shocked the court's conscience. On Bunch's motion, the court amended its opinion to allow Bunch the option of choosing a new trial on damages alone.

¶ 10 The county petitioned this court for review of the Court of Appeals' limitation of a new trial to damages alone, but we denied that petition. Bunch cross-petitioned to challenge the Court of Appeal's remittitur. We granted that petition by order dated January 4, 2005. We deferred Bunch's request for attorney fees under RAP 18.1(j) pending the outcome of the case.³

ISSUES

I. What is the appropriate level of deference an appellate court should afford to the trial court when deciding remittitur issues?

II. Whether the Court of Appeals properly reduced the jury's award of noneconomic damages from $260,000 to $25,000 because it thought the award unsupported by evidence, the result of passion and prejudice, and shocking to its conscience?

ANALYSIS

¶ 11 Appellate courts unquestionably have the authority to reduce jury damages awards. Appellate remittitur was part of the common law in 1889 when the Washington Constitution was ratified. In 1889 the United States Supreme Court affirmed an appellate court's authority to grant remittiturs: "[The appellate court is] at liberty, in disposing of the motion for a new trial according to its view of the evidence, either to deny or to grant a new trial generally, or to order judgment for a less sum than the amount of the verdict, conditional upon a remittitur by the plaintiff." Kennon v. Gilmer, 131 U.S. 22, 30, 9 S.Ct. 696, 33 L.Ed. 110 (1889); see also Ark. Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 73-74, 9 S.Ct. 458, 32 L.Ed. 854 (1889). Since we interpret the right to a jury trial in our constitution "as it existed at the time of the Constitution's adoption in 1889," Nielson v. Spanaway General Medical Clinic, Inc., 135 Wash.2d 255, 266, 956 P.2d 312 (1998) (interpreting Const. art. I, § 21), it follows that an appellate court's common law authority to remit jury awards is consistent with the constitutional right to a jury trial. We have recently upheld this power. See Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 330, 858 P.2d 1054 (1993). Since appellate courts unquestionably have the authority to remit a jury award, the question then becomes what level of deference they should grant to the trial court, who first decides whether to grant or deny a motion for remittitur.⁴

I. Appellate Courts Review Trial Court Decisions to Deny Remittiturs for Abuse of Discretion

¶ 12 Bunch argues our remittitur jurisprudence has evolved through three stages. In the early pre-1933 stage, courts gave little deference to juries' awards. No statute granted courts the authority to grant a remittitur, but they exercised it as part of their inherent power. See Anderson v. Dalton, 40 Wash.2d 894, 898-99, 246 P.2d 853 (1952).⁵ Bunch cites Kohler v. Fairhaven & New Whatcom Railway Co., 8 Wash. 452, 36 P. 253 (1894), to support his contention that early appellate courts reviewed trial courts' decisions on remittiturs for abuse of discretion. Kohler states the decision to grant a new trial because a jury's damages award is excessive is within the discretion of the trial judge. 8 Wash. at 453, 36 P. 253. Appellate courts then apply an abuse of discretion standard. Id. Chief Justice Dunbar dissented:

I dissent. The plaintiff has a constitutional right to have the questions of fact involved in his case submitted to the discretion of a jury. The amount of damages which he sustained is as purely a question of fact as any question in the case. I do not deny the right of the court to set aside a verdict when it plainly appears that the verdict was the result of passion or prejudice; but I do most earnestly protest against the court substituting its judgment for the judgment of the jury; and basing its conclusion that the jury was controlled by passion or...