The Supreme Court of Illyria last night, by a 6-1 vote, struck down a $10 million damage award which a lower court had given to Malvolio, Twelfth Night’s officious Chief of Protocol, against his employer, Lady Olivia, for false imprisonment, intentional infliction of emotional distress, and Constitutional violations. The Court let stand a $10,000 award Malvolio had won against Olivia’s servants and agents, Maria, Feste, Fabian, Sir Andrew Aguecheek and Sir Toby Belch, all of whom, being drunk, foolish and/or impecunious, are also judgment-proof.
The High Court’s judgment corresponded with the overwhelming sentiment of the trial’s vast audience, which voted by a substantial margin to relieve Olivia of liability. The audience’s preference was gauged by an incredibly old-school method of polling. Audience members were asked to put red (anti-Olivia) or blue plastic chips into a basket, and Shakespeare Theatre Artistic Director Michael Kahn measured the two responses on the Scales of Justice, conveniently placed in the front of the impromptu Illyrian courtroom at the Shakespeare’s Harman Hall stage. The blue outweighed the red, much as it did in last year’s plebiscite.
Everyone who saw the Shakespeare’s production of Twelfth Night last December knows the facts of this case. Malvolio (Ted van Griethuysen), principal servant to Olivia (Veanne Cox), was the victim of a cruel hoax perpetrated by Olivia’s handmaiden Maria (Nancy Robinette), hard-drinking uncle Sir Toby Belch (Rick Foucheux), ridiculous suitor Andrew Aguecheek (Tom Story) and nasty Jester Feste (Floyd King). Maria, apparently a gifted forger, wrote a letter in Olivia’s hand suggesting that Olivia was in love with Malvolio and would love him even more if he would do some ridiculous things, such as wear yellow and cross-garter himself. Malvolio, who dreamed of becoming a count, bought the hoax, and when he appeared so attired before the horrified Olivia, she had Sir Toby clap him in irons as a madman. Thereafter, Feste completed Malvolio’s torment by posing as a Cleric and giving theological advice.
Last evening’s program described the sequel: Malvolio, freed after Olivia discovered the hoax, sued his employer and her minions for these insults to his dignity. The Illyrian trial court gave Malvolio $10,000 as compensation for his injuries – payable by any defendant, or all of them, chipping in – and $10,000,000 in punitive damages, payable by Olivia. An appellate court upheld the award without opinion, and Olivia appealed to the Supreme Court.
Olivia’s cause was greatly benefited by the exceptionally nimble defense raised by her adroit attorney, Roy T. Englert Jr. of the firm of Robbins, Russell, Englert, Orseck, Unterreiner & Saubler LLP. The lower court had found two bases for Olivia’s liability: that she negligently committed Malvolio to the care of Sir Toby, a known drunk and screw-up, and that as the employer of Maria and Feste, Olivia was under the doctrine of respondeat superior liable for everything they did in the course of their employment, whether she knew about it or not. Englert argued that his client was not liable under respondeat superior because Maria and Feste were clearly not discharging their jobs when they punk’d Malvolio, and that she was not liable for her own decisions since Toby only committed Malvolio to a dungeon briefly, which was, Englert argued, “the customary Illyrian treatment for midsummer madness.” Englert also argued that the punitive damage award was disproportionate to the injury.
Englert bobbed and weaved like Mohammed Ali in his prime against a withering crossfire of questions from Chief Justice Ruth Bader Ginsburg, Justice Samuel Alito, Justice Stephen G. Breyer and especially Judge Merrick B. Garland of the DC Court of Appeals, who compared Englert’s arguments about Malvolio’s imprisonment to arguments raised by the previous Administration about the treatment of suspected terrorists. Enlgert was not able to satisfy District Court Judge Rosemary M. Collyer, however, when he tried to argue that Olivia was compelled to turn Malvolio over to the bibulous Sir Toby under the Illyrians With Disabilities Act, which recognized Sir Toby’s drinking as a disability which had to be accommodated. When Collyer pointed out that Sir Toby was an active drinker who would not fall under the protection of the Disabilities Act, Englert tried to argue that the applicable law was the Illyrian Act, which was broader than its American counterpart. When Collyer observed that at the time of the incident, four hundred years ago, there was no Disabilities Act, Englert was obliged to retire from the argument.
Malvolio’s counsel, former U.S. Solicitor General Paul D. Clement (now of the firm of King & Spalding), offered a similarly vigorous defense of the award, focusing on Olivia’s decision to commit Malvolio to the custody of Sir Toby, a drunk “not of the first, not of the second, but of the third degree!” Clement also argued that the punitive damage award was appropriate, citing the (U.S.) Supreme Court’s decision in TXO Production Corp v. Allied Resource Corp, 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993), which permitted a $10 million punitive damage award notwithstanding that there were only $19,000 in actual damages.
As is frequently the case with appellate courts, the lawyer’s issues were sidetracked by questions which the judges thought up. When Clement thundered “Malvolio has been denied justice for four hundred years”, Justice Breyer inquired as to what the statute of limitations – the maximum time after an incident in which to bring a lawsuit – was in Illyria.
“Five hundred years,” Clement snapped back immediately.
“I’m disappointed,” Judge Douglas Ginsburg of the D.C. Court of Appeals confessed. “I had assumed the four hundred years was the result of the Judicial process.”
“Only the last hundred fifty years,” Clement assured him.
In the end, though, Englert and Olivia carried the argument. The sole dissenter, D.C. Court of Appeals Judge Brett Kavanaugh, would have found Olivia liable but would have reduced the punitive damages award from $10 million to $20,000. The Judges had a wide range of reasons for finding for Olivia. For example, Justice Breyer observed, “I just don’t like Malvolio.” And Judge Collyer considered Olivia to be as mad as Malvolio, pointing out that she spent much of the record in passionate pursuit of Viola, thinking she was a man, and ended up marrying someone she barely knew and thought was somebody else. “She needs help,” Collyer observed.
It fell to Breyer to pronounce why Malvolio fell victim to such a base prank and then left the Courtroom with scarcely any loot. “Malvolio,” the Justice observed, “suffers from what we do not. He doesn’t have a sense of humor.”