United States: Illinois Appellate Court Upholds $2 Million Punitive Award Against Chicago State University

The due process review of a punitive damages award for excessiveness has a number of interconnected parts. A series of relatively small errors can quickly add up and dramatically skew the outcome of a review process that is intended to impose predictability and consistency on the largely black-box process juries use when setting the amount of punitive damages.  The Illinois Appellate Court's decision in Crowley v. Watson illustrates the point.

Crowley involved a retaliatory-discharge claim by an administrator and Freedom of Information Act (FOIA) attorney at a public university.  The plaintiff claimed that he was terminated in retaliation for responding to a FOIA request that required disclosure of documents that were embarrassing to the incoming president of the university.  The jury agreed, awarding him $480,000 in back pay and $2,000,000 in punitive damages.  Under the state ethics act for public employees, the award of back pay was doubled and the plaintiff was awarded $60,000 in pre-judgment interest and $318,173 for attorneys' fees.  In addition, the trial court awarded front pay in an amount to be determined after the appellate proceedings conclude.

On appeal, the defendants argued, among other things, that the punitive award was excessive under the Supreme Court's due process guideposts. The appellate court rejected this argument, concluding that the conduct was highly reprehensible and that the ratio—which the court calculated to be either 1.5:1 or 2.4:1—was well within constitutional limits.  Proper application of the Supreme Court's reprehensibility and ratio guideposts, however, points to the conclusion that the punitive damages should have been quartered or eliminated entirely.


With respect to reprehensibility, the court focused almost exclusively on the implied finding that the plan to terminate the plaintiff was intentional and deceitful. In so doing, the court repeated a mistake that is all too common in punitive damages excessiveness review: equating the presence of facts sufficient to give rise to any punitive liability with the high degree of reprehensibility necessary to justify a multi-million dollar punitive award.  Although the intentional and deceitful nature of conduct is one factor that the Supreme Court has held to be indicative of increased reprehensibility, had the defendant in Crowley not acted intentionally and deceitfully there would presumably have been no basis to find it liable for punitive damages in the first place.  Consequently, the fact that it engaged in punishable conduct sets the stage for the inquiry but does not by itself push the reprehensibility needle to the high end of the scale.

Moreover, the presence of intentional and deceitful conduct is only one of the five reprehensibility factors that the Supreme Court has instructed lower courts to consider. In this case, those other factors do not point to high reprehensibility.

Physical Injury. Although the Crowley court indicated that the defendants' conduct caused both economic and psychological injury, there was no finding that the plaintiff suffered compensable emotional distress.  More important, the physical-injury reprehensibility factor is intended to single out conduct that causes bodily harm.  It is not satisfied by economic torts that, as a side effect, may cause the plaintiff emotional distress.

Disregard for Safety. The court simply ignored that the defendants' conduct did not demonstrate a disregard for anyone's health or safety.

Vulnerable Victim. The court implied that the plaintiff was economically vulnerable because the defendants' conduct was designed to harm the plaintiff economically.  But the economic-vulnerability factor is intended to identify conduct as more reprehensible when it targets and attempts to exploit those who are vulnerable due to their limited socio-economic status or lack of sophistication in money matters.  If it were satisfied anytime someone suffers economic injury, it would not serve that function but would simply cause the reprehensibility factors to produce enhanced reprehensibility automatically for both physical and economic injury.  In Crowley, the plaintiff's professional position at the university and the amount of back pay awarded strongly suggest that the plaintiff was not economically vulnerable, let alone targeted by the defendants because of such vulnerability.

Recidivism. Finally, the court stated that there was evidence that "other employee dissenters" were eventually demoted or fired, but did not point to evidence that those employment decisions were part of a pattern of retaliatory terminations at this school.  It appeared that the plaintiff's termination was an isolated incident in that respect.

In sum, the conduct at issue here involved at most one or two of the reprehensibility factors identified by the Supreme Court and should have been treated as falling relatively low on the spectrum of conduct that warrants an award of punitive damages.


When calculating the ratio of compensatory to punitive damages, the appellate court included in the compensatory damages not only the award of back pay but also the statutory award of attorneys' fees. It also included the statutory award of doubled back-pay, although it offered an alternative calculation that excluded this amount from the compensatory damages figure.  The court concluded that the ratio was either 1.5:1 or 2.4:1, both of which, it concluded, were constitutionally permissible ratios.

This analysis suffers from several flaws. As an initial matter, the modern trend, sparked by recurring language in recent Supreme Court decisions, is to limit punitive damages to the amount of compensatory damages when the compensatory damages are "substantial" and the conduct does not rise high on the spectrum of reprehensibility.  Courts have generally considered any award over about $50,000 to be substantial, strongly suggesting that the highest permissible ratio in Crowley should be 1:1.

Moreover, the appellate court committed a number of errors when calculating the ratio. Most significantly, the court should not merely have excluded the statutorily doubled award of back pay from the compensatory damages; it should have added those damages to the punitive side of the ledger.  The court speculated that doubled damages may serve a compensatory function by making the plaintiff whole for the "collateral consequences" of lost income.  Those, however, are items of damages that a wrongfully terminated employee can prove and recover.  The purpose of doubling the plaintiff's back pay is not to provide rough justice for unproved losses but to punish the defendant and deter future misconduct.  Indeed, the ethics act specifically mentions deterrence as a goal of damages under the act.  Because the doubled award of back pay already serves a punitive function, the pertinent question under State Farm v. Campbell is whether additional damages are necessary to accomplish the state's legitimate interest in punishment and deterrence.

The court also erred by including the award of attorneys' fees in the compensatory award. While the plaintiff's attorneys' fees do represent a cost imposed on the plaintiff by the defendant's punishable conduct, the fact that they are chargeable to the defendant in only a limited range of cases gives them a punitive aspect as well, making it arbitrary to include them in the denominator and thereby use them as a justification for higher punitive awards in those cases.

In sum, the doctrinally correct ratio of compensatory to punitive damages in Crowley was more than 4:1, not 1.5:1.  There is a strong argument that, due to the deterrent and punitive effect of the  double damages, front pay award, attorneys' fees, and prejudgment interest, any award of punitive damages is unnecessary and therefore unconstitutionally excessive.  Certainly, under State Farm v. Campbell, any additional punitive award should not have been allowed to exceed a 1:1 ratio with the actual compensatory damages.


The appellate court held that the punitive damages were not out of line with punitive awards in other retaliatory discharge cases, but it failed to note the most directly analogous penalty—the provision in the ethics act that authorized an award of double damages. That is a legislative endorsement of a punishment in the amount of the compensatory damages.  Even if the award of double damages isn't treated as preclusive of additional punitive damages, therefore, the third guidepost would suggest that a punitive award of more than the amount of the pre-doubling compensatory damages is excessive.


Finally, we should note that there is a strong argument that it is never proper to impose punitive damages against a public entity like Chicago State University.   The U.S. Supreme Court recognized in City of Newport News v. Fact Concerts, Inc. that such awards do not serve the traditional function of punitive damages because the money is paid by taxpayers, not the individuals who are guilty of wrongdoing.  The result of a punitive award against a public entity is "a windfall to a fully compensated plaintiff ... accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill."  While the appellate court specifically rejected that argument in Crowley, those concerns are yet another reason to allow only a modest punitive award in a case like this.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.