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July 18, 1995

TINA JOHNSON, et al., Plaintiffs,
WILLIAM SMITH, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR


 On June 15, 1995 this Court issued its memorandum opinion and order ("Opinion III") directing the entry of final judgment in favor of several members of the Johnson family (collectively "Johnsons") against the remaining defendants in this action. *fn1" On June 26 one of those defendants, William Smith ("Smith"), filed two timely post-judgment motions:


1. a Fed. R. Civ. P. ("Rule") 59(e) motion to alter or amend the judgment against Smith and


2. a Rule 59(a)(2) and 59(b) motion for a new trial on the issue of damages payable by Smith.

 This ruling on those motions has been delayed somewhat, not by any substantive difficulties that have been posed by Smith's contentions (none of which, on analysis, possesses any merit) but rather by the fact that this Court has been away for a brief vacation and has since then been occupied in catching up on other matters accumulated during its absence.

 As for the Rule 59(e) motion, it mischaracterizes both the holdings in Opinion III and the relevance to this case of the evidence presented during the damages hearing:


1. For example, Johnsons' background life in a public housing ghetto environment before they moved to the neighborhood occupied by Smith and his fellow culprits is highly relevant, not on any notion that the earlier life was caused" by Smith and his cohorts (Motion at 2)--of course it was not--but rather because of the contrast between that earlier environment and the relatively upscale neighborhood that Johnsons were living in when Smith and the others terrorized them by a cross-burning and by throwing a brick through Johnsons' window. That made all the more poignant the cruelty that Smith and his colleagues engaged in by destroying the security of that new environment.


2. As for the post-cross-burning conduct by persons other than Smith and his codefendants, Smith's counsel falsely ascribes notions of judicial emotion and of using that conduct in the assessment of Johnsons' damages, just because those matters were referred to in evidence. Those later episodes did help to keep the cross-burning by Smith and his cohorts fresh in Johnsons' minds, but in setting the compensatory and punitive damages in this case this Court considered only defendants' conduct.


3. As for the assessment of punitive damages against Smith, this Court rejects the restriction that is urged by Smith's counsel in reliance on Fopay v. Noveroske, 31 Ill. App. 3d 182, 199-201, 334 N.E.2d 79, 93-94 (5th Dist. 1975). Fopay, id. itself recognized that "other jurisdictions have not accepted this approach," and since then the Fifth District (which decided Fopay) has approved the consideration of earning capacity as well as net worth in setting punitive damages ( Central Bank-Granite City v. Ziaee, 188 Ill. App. 3d 936, 944-46, 544 N.E.2d 1121, 1127-28, 136 Ill. Dec. 346 (5th Dist. 1989)). And quite apart from the fact that just two Fifth District cases are scarcely a definitive statement even of Illinois law, what is surely most significant is that Illinois state law does not control in this Section 1983 action anyway ( Littlefield v. McGuffey, 954 F.2d 1337, 1349 (7th Cir. 1992))--and Johnson's counsel adduces nothing to suggest that the unusual Fopay decision reflects federal law. Indeed, such cases as Tolliver v. Amici, 800 F.2d 149, 151 (7th Cir. 1986) suggest the propriety of considering income as well as net worth for punitive damages purposes. This Court simply declines to apply a doctrine that would reward Smith for "having been a total idler and wastrel until now" (Opinion III, slip op. at 5 n.5).

 It is unnecessary to deal in any further detail with Smith's motion--suffice it to say that it is entirely without merit and is denied.

 As for Smith's Rule 59(a)(2) and 59(b) motion for a new trial, Smith's counsel attempts to support it by merely repeating what he has said in the other motion. Nothing that he offers suggests any predicate for retrying the case on damages. That motion too is denied.

 Milton I. Shadur

 Senior United States District Judge

 Date: July 18, 1995

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