ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Thomas M. Fisher

Solicitor General of Indiana

Heather Hagan McVeigh

Ashley Tatman Harwel

Deputy Attorneys General

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE INSURANCE 

INSTITUTE OF INDIANA, INC., INDIANA 

MANUFACTURERS ASSOCIATION, AND INDIANA 

CHAMBER OF COMMERCE, INC.

John C. Trimble

Richard K. Shoultz

Lewis S. Wooton

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Patrick W. Noaker

St. Paul, Minnesota

Eric A. Koch

Bloomington, Indiana

ATTORNEY FOR AMICUS CURIAE INDIANA TRIAL 

LAWYERS ASSOCIATION

Thomas A. Manges

Fort Wayne, Indiana

In the

Indiana Supreme Court 

No. 49S00-1201-CT-14

STATE OF INDIANA,

Appellant (Intervenor below),

v.

JOHN DOE,

Appellee (Plaintiff below).

Appeal from the Marion Superior Court, No. 49D10-0402-CT-443

The Honorable David J. Dreyer, Judge

On Direct Appeal Pursuant to Indiana Appellate Rule 4(A)(1)(b)
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May 14, 2013

Massa, Justice.

The State here appeals from a judgment declaring Indiana Code §§ 34-51-3-4, -5, and -6

impermissibly inconsistent with Article 1, Section 20 and Article 3, Section 1 of our Indiana 

Constitution. We reverse.

Facts and Procedural History

A. Relevant Historical and Statutory Background

Punitive damages, sometimes known as “exemplary damages,” are “intended to punish 

and thereby deter blameworthy conduct.” Black’s Law Dictionary 448 (9th ed. 2009). They are 

an ancient remedy. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 491 (2008) (citing Code of 

Hammurabi § 8, p. 13 (R. Harper ed. 1904) (authorizing a tenfold penalty for stealing the goat of 

a freed man); Statute of Gloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66 (permitting treble 

damages for waste)). Their place in American jurisprudence dates to 1763, when the Court of 

Common Pleas noted the possibility of damages “for more than the injury received.” Id. (citing 

Wilkes v. Wood, Lofft 1, 18, 98 Eng. Rep. 489, 498 (1763) (Lord Chief Justice Pratt) (awarding 

£4,000 in exemplary damages to plaintiff John Wilkes after the Secretary of State caused his 

papers to be searched unlawfully)). By 1837, they had reached Indiana, and as we said then:

The assessment of damages is a matter which must be, 

unavoidably, in a great measure left to the discretion of the jury. It 

is proper for them to take into consideration all the circumstances 

under which a trespass may have been committed; and wherever 

malice, insult, or deliberate oppression, has been an ingredient in 

the wrongful act, to award, in addition to the actual loss sustained, 
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such exemplary damages as shall tend to prevent a repetition of the 

injury. 

Anthony v. Gilbert, 4 Blackf. 348, 349 (Ind. 1837).

But for nearly as long as we have had punitive damages in Indiana, we have recognized 

their controversial nature: “a principle that allows an individual to put the money assessed 

against another individual, as punishment or a warning example, into his private pocket when he 

is not entitled to it, whatever public advantages it may have, does not seem to be thoroughly 

sound.” Stewart v. Maddox, 63 Ind. 51, 57 (1878). Our Court of Appeals has imposed a 

requirement “that the amount of punitive damages awarded by a jury must bear some reasonable 

proportion to the amount of compensatory damages,” Bangert v. Hubbard, 127 Ind. App. 579, 

589, 126 N.E.2d 778, 783 (1955), and our federal brethren have suggested that a proportion of 

more than nine to one may offend due process. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 

U.S. 408, 425 (2003).

Legislatures in other states, perhaps in response to similar concerns, began in the late 

1980s to impose statutory caps on punitive damage awards. BMW of N. Am., Inc. v. Gore, 517 

U.S. 559, 615–16 (1996) (Ginsburg, J., dissenting) (citing statutes from Colorado, Connecticut,

Delaware, Florida, Georgia, Illinois, Kansas, Maryland, Minnesota, Nevada, New Jersey, North 

Dakota, Oklahoma, Texas, and Virginia). In 1995, our own General Assembly passed a law 

imposing certain restrictions on the recovery of punitive damages in civil cases. Ind. Code ch. 

34-51-3 (2008 & Supp. 2012); Act of April 26, 1995, P.L. 278-1995, §§ 10–13, 1995 Ind. Acts 

4058–59. In addition to modifying the burden of proof required to recover punitive damages, 

Ind. Code § 34-51-3-2 (2008), it provides that:

A punitive damage award may not be more than the greater of:

(1) three (3) times the amount of compensatory damages awarded 

in the action; or

(2) fifty thousand dollars ($50,000).
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Ind. Code § 34-51-3-4 (2008). This cap is accompanied by an allocation provision:

(a) Except as provided in IC 13-25-4-10, when a finder of fact 

announces a verdict that includes a punitive damage award in a 

civil action, the party against whom the judgment was entered 

shall notify the office of the attorney general of the punitive 

damage award. 

(b) When a punitive damage award is paid, 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.

(c) Upon receiving the payment described in subsection (b), 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 (2008). The statute specifies that juries may not be apprised of the cap or 

the allocation. Ind. Code § 34-51-3-3 (2008). If a jury awards punitive damages in excess of the 

cap, the statute requires the court to reduce the award to the statutory maximum. Ind. Code § 34-

51-3-5 (2008).

B. John Doe’s Lawsuit

In April 2008, a jury awarded John Doe $150,000 in punitive damages as part of a 

judgment in his lawsuit against Father Jonathan Lovill Stewart for childhood sexual abuse. 

Stewart moved to reduce the punitive damages pursuant to the statutory cap. Ind. Code §§ 34-

51-3-4 & -5. On February 27, 2009, the trial court denied that motion, holding those statutes 

violated two provisions of our state Constitution: Article 3, Section 1, which requires the 

separation of governmental powers, and Article 1, Section 20, which guarantees the right to trial 

by jury in civil cases. 
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In March 2009, the State intervened in the case to protect its interest in the punitive 

damages award. Doe filed various documents contending the allocation provision was 

unconstitutional as applied to him. His argument was initially based solely on the state and 

federal Takings Clauses, although he later raised separation of powers and jury trial arguments. 

On September 27, 2011, without holding a hearing on Doe’s constitutional claims or 

allowing the State to respond to his late-raised arguments, the trial court issued an order

declaring both cap and allocation violated the separation of powers and right to jury trial. The 

State moved to correct error, seeking an opportunity to demonstrate the statutes comport with 

those constitutional provisions, but the trial court denied that motion. 

The State now appeals. We have mandatory and exclusive jurisdiction over this and all 

appeals from judgments invalidating state statutes on constitutional grounds. Ind. Appellate Rule 

4(A)(1)(b).

Standard of Review 

The facial constitutionality of a state statute is a pure question of law, and we address it 

de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997). We will declare a statute 

facially invalid only when we are firmly convinced there are no circumstances under which the 

statute could constitutionally be applied. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999). 

We are mindful of the legislature’s constitutional authority to determine the public policy of our 

state, and we thus will restrict our analysis to the constitutionality of the statute and refrain from 

evaluating its wisdom or suitability. State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992); 

Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 381, 404 N.E.2d 585, 591 (1980). “[E]very 

statute stands before us clothed with the presumption of constitutionality, and such presumption 

continues until clearly overcome by a showing to the contrary.” Rendleman, 603 N.E.2d at 1334 

(quoting Sidle v. Majors, 264 Ind. 206, 209, 341 N.E.2d 763, 766 (1976)). The burden to make 

that showing rests squarely on the challenging party. Id.
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The Cap and Allocation Scheme Does Not Infringe Upon the Right to Jury Trial

In support of the constitutionality of the cap and allocation scheme, the State argues 

punitive damages are a legal remedy and thus beyond the scope of the jury’s fact-finding 

function. By way of rejoinder, Doe asserts the right to jury trial applies to all common law 

causes of action and damages, and plaintiffs have a common law right to recover punitive 

damages under appropriate circumstances. 

Although the particular issue raised in this appeal is novel, this is not the first time we 

have weighed the validity of a statutory cap on damages against a constitutional challenge based 

on the right to jury trial. Johnson, 273 Ind. at 400–01, 404 N.E.2d at 602. We upheld that cap, 

imposed on compensatory damages in medical malpractice cases, saying “there is no indication 

. . . that the right to have a jury assess the damages in a case properly tried by jury constitutes a 

limitation upon the authority of the Legislature to set limits upon damages.” Id. at 400–01, 404 

N.E.2d at 602. We noted further that the cap limited recoveries, but subject to that limit, “the 

right to have the jury assess the damages is available. No more is required by Art. I, § 20, of the 

Indiana Constitution in this context.” Id. at 400–01, 404 N.E.2d at 602.

Nor is this the first time we have had occasion generally to address the constitutionality 

of the allocation provision of the punitive damages statute. In 2003, we considered whether that 

provision violated the state and federal Takings Clauses. Cheatham v. Pohle, 789 N.E.2d 467, 

473 (Ind. 2003). Finding it did not, we said “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.” Id. at 475.
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Taken together, these two precedent cases require us to uphold both the cap and 

allocation provisions at issue here. Doe has offered no meaningful reason, and we can conceive 

none, why a punitive damages cap is so materially different from a compensatory damages cap 

as to render the former unconstitutional when the latter is not.1 Rather, we agree with the State 

that, as we have said before, the jury’s determination of the amount of punitive damages is not 

the sort of “finding of fact” that implicates the right to jury trial under our state constitution. 

Stroud v. Lints, 790 N.E.2d 440, 445 (Ind. 2003). We believe the allocation of punitive damages

is similarly not a “finding of fact” for constitutional purposes. Therefore, we find the cap and 

allocation provisions are fully consonant with the right to jury trial protected by Article 1, 

Section 20 of our state constitution.

The Cap Does Not Offend the Separation of Powers

The State maintains that, although the courts have the power to punish quasi-criminal 

conduct through the imposition of punitive damages, the legislature has the authority to delineate 

the boundaries of that judicial power. Doe contends the judiciary has the sole power to modify 

excessive verdicts through the procedural device of remittitur, and that any legislative foray into 

that arena is therefore unconstitutional. 

“The powers of the Government are divided into three separate departments; the 

Legislative, the Executive including the Administrative, and the Judicial: and no person, charged 

with official duties under one of these departments, shall exercise any of the functions of 

another, except as in this Constitution expressly provided.” Ind. Const. art. 3, § 1. This doctrine 

 

1 We note the trial court characterized our opinion in Johnson as a “narrow” “one-paragraph discussion” 

in which we “failed to conduct” the necessary historical analysis. App. at 15–16. To the extent that this

language was intended as an invitation to reconsider Johnson, we decline.
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of separation of powers “is the keystone of our form of government,” Book v. State Office Bldg. 

Comm’n, 238 Ind. 120, 159, 149 N.E.2d 273, 293 (1958), and it “recognizes that each branch of 

the government has specific duties and powers that may not be usurped or infringed upon by the 

other branches of government.” State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000). In the 

criminal context, for example, the legislative branch is charged with defining crimes and 

establishing penalties generally, while the judicial branch is charged with applying those general 

guidelines to the conviction and sentencing of particular offenders. Lemmon v. Harris, 949 

N.E.2d 803, 814 (Ind. 2011) (citing State v. Palmer, 270 Ind. 493, 497, 386 N.E.2d 946, 949 

(1979); Ind. Code § 35-50-1-1 (2008)).

We believe this same separation applies in the context of civil litigation. Just as the 

legislative branch has broad power to limit common law causes of action and remedies, 

including punitive damages, see Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003), the 

judicial branch has sole authority to apply those limitations to particular cases. The cap is a 

public policy judgment that punitive damages in civil cases should not exceed a certain amount. 

As such, it is no different from a public policy judgment that the penalty for Class C felony child 

molesting, for example, is imprisonment for between two and eight years. Ind. Code §§ 35-50-2-

6(a) (2008) (setting the advisory sentence for a Class C felony); 35-42-4-3(b) (2008) (defining 

Class C felony child molesting). If an offender is convicted of child molesting, the court has 

absolute discretion to set the offender’s punishment—so long as it exercises that discretion 

within the statutorily-mandated range of two to eight years. Just so here; the legislative branch 

imposed a cap on the amount of punitive damages that a jury may award, and it provided that 

75% of those damages would be allocated to the VCF. The trial court had absolute discretion to 

award damages as it saw fit—provided the award fit within those statutory parameters. Article 3, 

Section 1 of our Constitution demands nothing more.

Finally, we do not find persuasive Doe’s argument that the cap and allocation provision 

constitute a “legislative remittitur.” Remittitur is “[a]n order awarding a new trial, or a damages 

amount lower than that awarded by the jury, and requiring the plaintiff to choose between those 

alternatives.” Black’s Law Dictionary 1409 (9th ed. 2009). Indiana trial courts have the power 
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to order remittitur upon motion of a party to correct error. Ind. Trial Rule 59(J)(5). The cap is 

not a remittitur, as it does not require a plaintiff to choose between a reduced damages award and 

a new trial, nor does it depend upon the presence of some error in need of correction. Nor is the 

allocation provision a remittitur; it does not change the amount of the damage award at all. 

Rather, both cap and allocation delineate a boundary within which the court may exercise its 

discretion to award damages, order remittitur, or otherwise modify the judgment as appropriate 

in light of the evidence and circumstances of the particular case before it. That boundary is 

within the legislature’s power to set, and the exercise of that power does not offend Article 3, 

Section 1 of our Indiana Constitution.

Conclusion

We hold that Indiana Code §§ 34-51-3-4, -5, and -6 do not violate either Article 1, 

Section 20 or Article 3, Section 1 of our Indiana Constitution. We therefore reverse the trial 

court and remand this case with instructions to (1) grant Stewart’s motion to reduce the punitive 

damages to the statutory maximum and (2) order that 75% of the award be deposited into the 

Violent Crime Victim Compensation Fund.

Dickson, C.J., Rucker, David, and Rush, JJ., concur.