Opposition Brief — VanDenBerg v. Regents of the University of California

&

No. 91-828

— ——————— $$$ ———_——“‘i A

In the Supreme Coutt au

DEC 18 1991

OF THE

‘“ OFFICE OF THE CLERK

United States

OCTOBER TERM, 1991

DAN VANDENBERG,

Petitioner,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

and Victor KIMURA,

Respondents.

On Petition for a Writ of Certiorari to the

Court of Appeal for the State of California

Sixth Appellate District

RESPONDENT VICTOR KIMURA’S BRIEF IN OPPOSITION

Jack W. LONDEN” MARGARET C. CROSBY

JUDITH M. SCHELLy EDWARD M. CHEN

GRANT L. Kim AMERICAN CIVIL LIBERTIES

JON S. TIGAR UNION FOUNDATION OF

MORRISON & FOERSTER NORTHERN CALIFORNIA, INC.

345 California Street 1663 Mission Street, Suite 460

San Francisco, CA 94104 San Francisco, CA 94103

Telephone: (415) 677-7000 Telephone: (415) 621-2493

*Counsel of Record

Attorneys for Respondent

VicTOR KIMURA

QUESTIONS PRESENTED

The California Court of Appeal for the Sixth District

issued a writ of mandate holding, under state law and under

federal constitutional law, that a letter written by defendant

Victor Kimura in the course of a heated university debate was

not actionable defamation. The court of appeal concluded, in

an unpublished decision, that no reasonable reader could take

the criticisms in the letter for factual accusations and that the

audience to which it was circulated could not reasonably

believe that it implied or was based on undisclosed factual

accusations. The federal questions presented are:

(1) Whether review is appropriate when the state

appellate court decision was based on independent and

adequate state grounds.

(2) Whether the court below applied the correct legal test

when, relying on Milkovich v. Lorain Journal Co.,___ U.S. __,

110 S. Ct. 879 (1990), it held that Victor Kimura’s December 12,

1988, letter was protected expression under the First

Amendment of the Constitution, based on the conclusion that

the letter implied no verifiable facts.

iii

TABLE OF CONTENTS

EE

I sh cirrcsccuncabboloracscicncestovesarenevaseos’s

REASONS WHY THE PETITION SHOULD BE

EE EES ELLE TD

I. The Court of Appeal Decided This Case

on Independent and Adequate State

EL SESS

Il. The Court of Appeal’s Decision

Correctly Applied Clear Precedent to

Undisputed Facts and Does Not Merit

I Neiaislidachiencchierinebteensteertocsetsesesocnsesecccsecce

Ill. Certiorari Should Be Denied Because the

Decision Is Unpublished and the

Holding Affects Only the Parties .............2.0000

iss rctrcieccciosinsnenepicibvceccsescvovesecsivose

10

15

16

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Baker v. Los Angeles Herald Examiner,

42 Cal. 3d 254, 721 P.2d 87, 228 Cal.

Rptr. 206 (1986), cert. denied, 479 U.S. 1032,

TD fils hertectenicinientpteithacbienninnmsiaieoinaatonetons 11,12

Buckley v. Littell,

539 F.2d 882 (2d Cir. 1976), cert. denied,

SEO UG, BERR, SF B. GE, FRB GIVTP ascccccesecvesorsescccnevovvcesees 13

California v. Freeman,

486 US. 1311, 109 S.Ct. $56 (1989) ..........cececsccssoccesesecere 8,9

Carto v. Buckley,

669 F. Supp. 502 G. DN.Y. 1986) .2.0020cesvceseosssssososeseeessoes 14

Greenbelt Coop. Publishing Ass’n v. Bresler,

SPD UID 6, FOG. G1. TET CEI) ccccnccececenevcococccccscvcnerscevere 13

Holy Spirit Ass'n for the Unification of World

Christianity v. Sequoia Elsevier Publishing Co.,

75 A.D.2d 523, 426 N.Y.S.2d 759 (1980) .......ccececeseereseees 14

Liberty Lobby, Inc. v. Anderson,

746 F.2d 1563, (D.C. Cir. 1984), vacated on

other grounds, 477 U.S. 242, 106 S. Ct. 2505

CPU auiisstadenboicasosesasassnconusdiadasasitotiphesctipheebticagbresioceseessonaeins 13-14

Liberty Lobby, Inc. v. Dow jones & Co.,

638 F. Supp. 1149 (D.D.C. 1986), aff'd,

838 F.2d 1287 (D.C. Cir.), cert. denied,

468 US. G25, 109 S. Ce. 75 CIGGBB) 2 ceeesccversscoccessessserseceeee

Liberty Lobby, Inc. v. National Review,

No. 79-3445, slip op.

EF a I steicccnesccescintersinrsnennssicsontsvinconevnaiariiae

Masson v. New Yorker Magazine, Inc.,

cee HR ina BOR BiG BOIP IIIA) ecccccrevernevesecrvsnsscenvenes

Milkovich v. Lorain Journal Co.,

eee ee eae

Moyer v. Amador Valley Joint Union High Sch. Dist.,

225 Cal. App. 3d 720, 275 Cal. Rptr. 494

I eee csciideanisalinsseiencaanienldikieeaititidDneteiteenaenvevesinatinomnion

New York Times Co. v. Sullivan,

ee ee Ee: Ge FE ND ccnensecccteccsonsssiisvesncecovese

Old Dominion Branch No. 496, Nat'l Ass’n of Letter

Carriers v. Austin,

SIS US: BOG, FES. CE. ZITO CIGIE) en ccccorcesnescecessccveceorosees

Philadelphia Newspapers, Inc. v. Hepps,

475 USS. 767, 106 S. Ct. 1558 (1986) ........ececccsssereeseeeeens

Raible v. Newsweek, Inc.,

SAT F. Sespp. 804 (W.D. Pa. 1972) ......n0ceceresscsosseresseessoreres

Rice v. Sioux City Memorial Park Cemetery,

SEP US. FO, TOT Ce. GUA CIID oaceccssssseerrescescrcensnstevensees

vi

Sall v. Barber,

762 P.2d 1216 (Colo. App. 1989) ............0-0.0sscscsssssssseesees 13

Scelfo v. Rutgers Univ.,

116 N.J. Super. 403, 282 A.2d 445 (1971) ......seseeseeeeeees 13

Slaughter v. Friedman,

32 Cal. 3d 149, 649 P.2d 886, 185 Cal Rptr.

I aid behivcsestcannsaiesssuiisbanaitesbaulsiphConbshanivinsicennastessasestonese 12

Stevens v. Tillman,

855 F.2d 394 (7th Cir. 1988), cert. denied,

489 U.S. 1065, 109 S. Ct. 1339 (1989) ou. eee I)

Uhler v. AFL-CIO,

ee ee RU WOU Te Gi Bh CID avcncicesesccnccscntarescevnesocsess u

White v. Davis,

13 Cal. 3d 757, 533 P.2d 222, 120 Cal.

PIO aistcasenssvnencsvnsissnintsernsetomnsapsicsnivosstensabscensesoent 12

Statutes and Rules

Restatement (Second) of Torts § 566 (1977) ........cceeeeeeeees 9

Rules of the Supreme Court

ETI snscusecin'ssealiieccesinccistsnsedbahiapissicaslannnndcipsveapensnikaakentosaniie 7

Cal. Rules of Court

cohen cecal tara sana 7,15

I i IE iitcisecshp in cihireenaninrnnsennoonianidcaaabiabiaabtneenaien 7

EES REN SMES Say EE ee eR Tee

I Es

Other Authorities

Joseph R. Grodin, The Depublication Practice of

the California Supreme Court,

Fa iy PUNE e EN RTI nesnieveosnsssnvsecensessrsvonesncensoncnscoeses

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-828

DON VANDENBERG,

Petitioner,

V.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

and VICTOR KIMURA,

Respondents.

On Petition for a Writ of Certiorari to the

Court of Appeal for the State of California

Sixth Appellate District

RESPONDENT VICTOR KIMURA’S

BRIEF IN OPPOSITION

OPINIONS BELOW

The decision of the California Supreme Court denying

review and ordering decertification and withdrawal from

publication of the court of appeal decision is dated August 22,

1991, and is not reported.

The opinion of the California Court of Appeal for the

Sixth District is dated May 30, 1991, and has been withdrawn

from publication.

The order of the Superior Court of the County of Santa

Cruz denying summary judgment, dated February 13, 1991, is

not reported.

The order of the Superior Court of the County of Santa

Cruz granting summary judgment, dated October 8, 1991, is

not reported.

The decision of the California Supreme Court, the

opinion of the California court of appeal, and the order of the

superior court denying summary judgment are reprinted in

Petitioner VanDenBerg’s appendix.

STATEMENT OF THE CASE

Victor Kimura participated in a debate within the

University of California, Santa Cruz (“UCSC” or the

“University”) community about an official decision by the

administration of one of UCSC’s colleges. Kimura was one of

many who believed that a well-publicized decision by Crown

College raised serious issues about racial insensitivity at

UCSC, and he challenged the decision in an emotional open

letter to Plaintiff VanDenBerg, the administrative head of the

College. VanDenBerg responded not by answering any of the

criticisms, but by suing one of his critics for libel.

I. Factual Background

The claims against Kimura in this action were based ona

single letter that he wrote to comment on a controversy on the

campus and in the University community.’ Plaintiff

VanDenBerg was the Bursar, or chief administrative officer, of

Crown College, the largest of the colleges that make up the

University. (Pet. App. A-4; Defendants’ Joint Separate

Statement of Issues as to Which There is No Substantial

Controversy, Associated Facts and Reference to Supporting

Evidence (“Undisp. Facts”) Nos. 53-56; Deposition of

Don VanDenBerg (“VDB Dep.”) 34:1-2; 12:6-8.)? Kimura was

employed at the University as Budget Director. (Pet. App. A-

4.) On December 7, 1988, Crown College refused to participate

in a “College Night” celebrating Filipino culture. (Pet. App. A-

4 to A-5.) Crown’s staff decided, with Plaintiff's approval, that

Crown would reject any kind of “Asian” theme or menu

because December 7 is the anniversary of the Japanese attack

on Pearl Harbor on December 7, 1941. (Undisp. Facts Nos. 12-

17.) Plaintiff, as bursar, was responsible for planning and

supervising all of Crown's public events, including “College

Nights,” regular cultural events held on the first Wednesday

of each month during the academic term. (Pet. App. A-5;

' Plaintiff blogg np poe ~ pare “Factual Background”

makes no citations to the record and contains statements that are

outside everything in the trial court record and contrary to the court

of appeal’s “state[ment of] the record in accordance with the

principles governing motions for summary judgment, which are that

the evidence is viewed in the light most favorable to the party

resisting the motion, with all inferences made and ambiguities

eed in his favor.” (See Petitioner's Appendix (hereinafter “Pet.

App.”) A-4 to A-6.) Plaintiff did not challenge the court of appeal’s

statement of the record in a — to the court of appeal or to the

California Supreme Court. Nor does plaintiff purport to ask this

Court to second-guess the court of appeal’s statement of the record.

2 All of the “Undisputed Facts” cited in this opposition to the

petition for certiorari were conceded by plaintiff VanDenBerg as

undisputed in Plaintiff's Response to Defendants’ Joint Statement of

Undisputed Facts.

Undisp. Facts Nos. 6, 60-61; Deposition of Morgan W. Snow

33:3-4.)

Following the refusal of Crown College to participate in

the Filipino event, a large number of students, staff, and

faculty expressed public concern about the racial implications

of Crown College’s decision to reject the Filipino theme

because of the Pearl Harbor anniversary. (Pet. App. A-5; VDB

Dep. Exhs. 10, 12, 29, 31, 35, 37, 52, 59.) Articles and posters

appeared condemning the decision as “bigoted” and

“insensitive.” (VDB Dep. Exhs. 3, 10, 12.) Meetings were held

in which Asian students expressed their belief that they were

being “punished” by Crown College, based on association of

Asian ethnic groups with the Japanese attack on Pearl Harbor.

(Deposition of Shawn Ogimachi at 21:2-8; 25:19-26:10;

Deposition of John W. Isbister at 84:18-85:1.)

UCSC Budget Director Victor Kimura, a Japanese

American who was born in an American internment camp

during World War II, was deeply offended by the actions of

administrators at Crown College, including Bursar

VanDenBerg. In the course of the heated University debate

about the College Night decision, Kimura drafted an open

letter to VanDenBerg criticizing Crown’s decision. In the letter,

dated December 12, 1988, Kimura expressed his belief that the

rejection of a Filipino theme by Crown wrongly implicated

Filipino and other Asian-American students in the Pearl

Harbor attack. Kimura attempted to “add [his] criticism” to

the ongoing debate, describing the Crown administrators who

cancelled the Filipino event as “perfect examples of what

enlightened people of all ethnic and cultural backgrounds

define as ‘racist’ and ‘bigoted.”” (Pet. App. A-23.)

On December 21, 1988, the Chancellor of UCSC issued a

statement criticizing Crown’s decision as an “error of

judgment.” (Pet App. A-5.) An official report of the decision

by Vice Chancellor Bruce Moore concluded that Crown’s

administrators showed “‘insensitivity’ and [were] oblivious to

the fact that many outside the University would view the

linkage between Asian Food and World War II as institutional

racism.” (Pet. App. A-5 to A-6.) VanDenBerg took a leave of

absence from the University and brought this action for money

damages against the University Regents, Chancellor Stevens,

and Kimura.

Il. Procedural History

Kimura and the Regents of the University of California

moved for summary judgment on November 27, 1990, on the

grounds that the December 12, 1988, letter is not actionable

defamation under state law, that it is protected expression

under Milkovich v. Lorain Journal Co. __. US. __, 110S. Ct.

2695 (1990), and that Bursar VanDenBerg is a public official or

public figure and cannot show by clear and convincing

evidence that Kimura acted with actual malice, under

New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710

(1964). The superior court granted summary adjudication on

the public official issue, holding that-Bursar VanDenBerg is a

public official, but denied summary judgment on all other

grounds. (Pet. App. A-20 to A-21.)

Kimura, joined by the Regents of the University of

California, petitioned for a stay and a writ of mandate on

March 4, 1991. The petition was granted on May 30, 1991. The

decision by the court of appeal began by expressly

distinguishing between the state law issue of whether a cause

of action had been stated for defamation and the federal

question of whether Kimura’s speech was protected by the

First Amendment. See infra Reasons Why The Petition Should

Be Denied, at I. The court then ruled in Defendents’ favor on

both grounds. First the court held, as a matter of state law, that

the letter did not allege or imply defamatory facts. (Pet. App.

A-6, A-18.) Second, and independently, the court held that the

letter was protected expression under this Court's decision in

Milkovich, stating that the governing test is “whether particular

statements can reasonably be interpreted as stating actual

defamatory facts about an individual.” (Pet. App. A-8, A-18.)

Specifically, the court found that the issues raised in the

December 12, 1988, letter were “clearly matter of public

concern.” (Pet. App. A-11.) The court held that the audience to

which the letter was addressed and circulated “would not

reasonably believe that it implied or was based on undisclosed

factual accusations.” (Pet. App. A-17.) The court also em-

phasized that the criticisms stated in the letter were “imprecise

and difficult if not impossible to verify” and “part of the

rhetoric generated on an explosive topic of public concern.”

(Pet. App. A-18.)3

The court then determined that no reasonable reader

would understand Kimura’s letter as a factual accusation and,

based on this determination, held that the letter was not

actionable under California law or federal constitutional law: .

“We conclude that it is not an actionable defamation and that

it is constitutionally protected expression.” (Pet. App. A-18.)

Accordingly, the court issued a writ of mandate directing the

superior court to grant summary judgment for Defendants on

the cause of action for defamation.

3 On the ground of mootness, the court of appeal did not reach

the issues raised in the petition for writ of mandate concerning

Bursar VanDenBerg’s public official status and whether he could, as

a matter of law, prove actual malice by clear and convincing

evidence. (Pet. App. A-3.) The court of appeal ordered the decision

that Bursar VanDenBerg is a public official vacated based on a

change in California procedural law subsequent to the hearing on the

motion, which precludes summary adjudication of issues that do not

completely dispose of an action or defense. (Pet. App. A-3.)

The California Supreme Court denied review of the

decision, and ordered that it be decertified, on August 22,

1991.4 On October 8, 1991, the superior court issued an order

granting summary judgment on the defamation claim.

REASONS WHY THE PETITION

SHOULD BE DENIED

Review by this Court is reserved for those few cases in

which it is necessary to secure uniformity of decision or to

settle an important question of federal or constitutional law.

Rules of the Supreme Court, Rule 17. This case does not

warrant review on either ground.

First, the California court of appeal decided this case on

independent and adequate state law grounds, as well as under

the First Amendment. Certiorari is therefore not warranted.

4 Cal. Rules of Court, Rule 976(c)(2) (1991) (providing that an

opinion certified for publication by a court of appeal shall not be

published on an order of the California Supreme Court to that effect).

The consequence of “depublication” is that the decision may not be

used as precedent in any other action, although it remains law of the

case. Rule 977(a) (“An opinion that is not ordered published shall not

be cited or relied on by a court or a party -in any other action or

proceeding .. .”) (emphasis added); Rule 977(b) os exception for

doctrines of law of the case, res judicata, or collateral estoppel). An

order by the California Supreme Court ordering depublication of an

opinion “shall not be deemed an expression of opinion of the

Supreme Court of the correctness of the result reached by the

decision or of any of the law set forth in the opinion.” Rule 979(e); see

also Joseph R. Grodin, The Depublication Practice of the California

Supreme Court, 72 Cal. L. Rev. 514 (1984).

California v. Freeman, 488 U.S. 1311, 109 S. Ct. 854 (1988).> Sec-

ond, the court of appeal properly decided this case under the

First Amendment, applying this Court’s recent decision in

Milkovich to the undisputed facts of the case. Plaintiff can point

to no conflict in decisional law and no unresolved questions of

constitutional law raised by this case. Consequently, certiorari

is inappropriate and should be denied. Third, the decision of

the court of appeal in this depublished case applies uniquely

and exclusively to these parties. The decision does not appear

in the official reporter, and may not be cited as precedent in

any other California action. For this reason, too, it does not

merit review by this Court.

I. The Court of Appeal Decided This Case on

Independent and Adequate State Law Grounds

The California Court of Appeal for the Sixth District

expressly states that its decision is based on separate and

independent state common law grounds, as well as on the

First Amendment. The court identifies two separate “analytic

tasks” that it must undertake in determining whether the

Kimura letter constitutes actionable defamation: (1) deciding

whether the statement is sufficiently factual to be actionable, a

state law determination; and (2) deciding whether it is worthy

of constitutional protection. The court proceeds to accomplish

both of these tasks, deciding first of all that the letter is not

actionable on state law grounds.

> Plaintiff's lead argument, that certiorari should be granted

because the court of appeal followed federal constitutional law

rather than “standing on [its] own ground,” i.e., following state law,

is therefore meritless on its face. As shown below, the court of appeal

held that the letter was not actionable defamation under state tort

law as well as under federal constitutional requirements. (Pet. App.

A-18); see discussion infra at I.

The opinion stresses at the outset that “the constitutional

question cannot arise until it is first determined that a

statement is an actionable defamation under state law.” (Pet.

App. A-6.) The court articulates state law as requiring that “no

communication gives rise to an action for defamation unless it

either alleges or implies defamatory facts.” (Pet. App. A-6.)

The court cites Stevens v. Tillman, 855 F.2d 394, 400 (7th Cir.

1988), cert. denied, 489 U.S. 1065, 109 S. Ct. 1339 (1989), which

held under Illinois common law that the action of calling an

elementary school principal “racist” was not defamatory. Id. at

402. The court also cites the Restatement (Second) of Torts,

Section 566 (1977), for the common law rule that a “statement

in the form of an opinion. . . is actionable only if it implies the

allegation of undisclosed defamatory facts as the basis for the

opinion.” (Pet. App. A-6. n.2.)

Although, as discussed below, the court also correctly

holds that the statements in Kimura’s letter are protected

expression under the First Amendment, the holding of the

court is equally premised on independent and adequate state

law grounds. The court makes this clear when it states of the

letter, “we conclude that it is not an actionable defamation and

that it is constitutionally protected expression.” (Pet. App. A-

18) (emphasis added). Where a state appellate court decision is

firmly grounded in state law, review is inappropriate. Thus, in

California v. Freeman, 488 U.S. 1311, 1313, 1095S. Ct. 854, 856

(1988) (O’Connor, J., in chambers) a stay was denied where it

appeared clear from the face of the California Supreme Court

opinion that its analysis “constitutes an adequate and

independent state ground of decision.” Similarly, the decision

in Uhler v. AFL-CIO, 468 U.S. 1310, 1311, 105 S. Ct. 5, 6 (1984)

(Rehnquist, J., in chambers), stresses that the rule against

reviewing state court decisions that rest on independent

alternative state grounds was adopted “largely for the reason

that decisions on the federal questions . .. would amount to no

more than advisory opinions.”

10

Because the court of appeal bases its holding in this case

on an independent and adequate state law ground, certiorari is

not appropriate.

II. The Court of Appeal’s Decision Correctly Applied

Clear Precedent to Undisputed Facts and Does Not

Merit Review

Recognizing that the leading precedent on the

constitutional question is Milkovich, the California Court of

Appeal for the Sixth District faithfully followed this Court's

analysis in that decision. Milkovich v. Lorain Journal Co.,

___ US. __, 1105S. Ct. 2695, 2797 (1990). Thus, there is no

unsettled legal issue raised by this petition. At most, Plaintiff

is dissatisfied with the court of appeal’s application of

Milkovich to the undisputed facts of the case. However, the

way in which an appellate court applies this Court’s

precedents to particular facts is not an appropriate subject for

review.

Applying Milkovich, the court of appeal properly held

that the “dispositive question” under the First Amendment in

a defamation action is “whether a reasonable fact finder could

conclude that the published statements imply a provably false

factual assertion.” (Pet. App. A-9) (citing Milkovich, 110 S. Ct.

at 2707). The court of appeal recognized that its task “requires

accommodating the protection of free expression of ideas

under the First Amendment with the common law protection

afforded to an individual's reputation.” (Pet. App. A-6.) The

court of appeal properly concluded that a balance of those

interests in this case required that Kimura’s letter be entitled to

full constitutional protection under Milkovich. (Pet. App. A-6.)

See Milkovich, 110 S. Ct. at 2706.

As the court of appeal emphasized, First Amendment

protection rests, under Milkovich, not on any artificial

1]

dichotomy between “opinion” and “fact,” but on a court’s

careful analysis, under the totality of the circumstances, of

“whether particular statements can reasonably be interpreted

as stating actual defamatory facts about an individual.” (Pet.

App. A-8.) In Milkovich, as an example of speech that would

not be actionable, the Court referred to a statement about

“abysmal ignorance [in] accepting the teachings of Marx and

Lenin.” Milkovich, 110S. Ct. at 2706. Like that statement,

Kimura’s references to “what enlightened people of all ethnic

and cultural backgrounds define as ‘racist’ and ‘bigoted’” and

to “truly effective affirmative action,” and his use of the word

“punish” in quotation marks, underscore the subjective,

rhetorical and nonverifiable nature of his criticisms.

California case@s cited by the court of appeal, which

plaintiff now questions, either applied Milkovich directly or

were characterized as consistent with this Court’s decision in

Milkovich. Thus, for example, Moyer v. Amador Valley Joint

Union High Sch. Dist., 225 Cal. App. 3d 720, 724-26,

275 Cal. Rptr. 494, 496-98 (1990), expressly applied Milkovich to

the facts in the case and concluded that a student’s accusation

that his teacher was a “babbler” was nonactionable. Similarly,

Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254, 260, 721

P.2d 87, 90, 228 Cal. Rptr. 206, 209 (1986), cert. denied, 479 U.S.

1032, 1075S. Ct. 880 (1987), applied a “totality of the

circumstances” test, consistent with Milkovich, for determining

what is defamatory and what is rhetorical hyperbole. Indeed,

the California Supreme Court's decision in Baker was recently

cited with approval by this Court in Masson v. New Yorker

Magazine, Inc.,__ U.S. ___, 111 S. Ct. 2419, 2430 (1991).

The court of appeal stressed the undisputed fact that

Kimura’s letter was written in the context of a heated

University-wide debate over the moral and political

implications of the refusal by plaintiff, the highest staff official

at Crown College, to permit a planned celebration of Filipino

12

culture on December 7, 1988, because of the Pearl Harbor

anniversary. (Pet. App. A-4 to A-6.) The court of appeal

correctly held that discussion of important public issues, like

the one presented by plaintiff's decision, “implicates

constitutional values.” (Pet. App. A-12.) This is particularly

true, as the court below noted, in a university setting, “in

which the need for free discussion and airing of matters of

concern is great.” (Pet. App. A-11.) Thus, the court of appeal

cited the California Supreme Court’s decision in White v.

Davis, 13 Cal. 3d 757, 770, 533 P.2d 222, 231, 120 Cal. Rptr. 94,

103 (1975), which refers to the university campus as “the

sacred ground of free discussion.” (Pet. App. A-11.)

As the court of appeal also held, Kimura’s letter was

nonactionable because “the audience to which it was

addressed and circulated would not reasonably believe that it

implied or was based on undisclosed factual accusations.”®

(Pet. App. A-17.) The court of appeal based its conclusion on

the impossibility of verifying the “imprecise and exaggerated”

opinions expressed about plaintiff, as well as “the emotional

© The court of appeal! also rejected Plaintiff's attempt to

analogize his case to Slaughter v. Friedman, 32 Cal.3d 149,

185 Cal. Rptr. 244, 649 P.2d 886 (1982), cited in his petition to this

Court at 13 and 14n8. As the court of appeal stressed, Plaintiff's

reliance on that case was misplaced: “[Slaughter] resolved as a matter

of law whether the allegedly libelous statements could be

understood by the average reader in either sense (as fact or opinion)

and found a jury trial appropriate when the court had decided that

the statement was indeed susceptible of either of those reasonable

interpretations.” (Pet. App. A-10 to A-11.) There is no such

ambiguity in the present case, where the alleged libel “cannot

reasonably be understood as implying any facts.” (Pet. App. A-18.)

Moreover, unlike the official-sounding letter in Slaughter, which

“eschewed literary flair and rhetorical device” (Baker, 42 Cal. 3d at

267), Kimura’s letter was highly rhetorical, relied not on official

criteria but on personal anecdotes, and was written as an open letter

in the course of an ongoing public debate.

13

and angry tone of the letter.” (Pet. App. A-17.) The decision of

the court of appeal is fully consistent with this Court’s holding

in Old Dominion Branch No. 496, Nat’! Ass'n of Letter Carriers v.

Austin, 418 U.S. 264, 284-86, 94S. Ct. 2770, 2781-82 (1974), that

the use of the word “traitor” was not actionable because it was

“merely rhetorical hyperbole.” Likewise, the decision complies

with Greenbelt Coop. Publishing Ass’n v. Bresler, 398 U.S. 6, 14,

90 S. Ct. 1537, 1542 (1970), holding that an accusation of

“blackmail” was not defamatory because it was “no more than

rhetorical hyperbole.” The decision is also consistent with

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct.

1558 (1986), because the December 12, 1988, letter involves a

statement about an issue of public concern and is not

susceptible to proof as either true or false.” Kimura’s letter also

7? The court of appeal cited numerous cases in support of its

conclusion that terms like “racist,” “bigoted,” “affirmative action,”

and “punish” as used in Kimura’s letter were too imprecise and

variable in meaning to constitute actionable speech under Milkovich.

(See Pet. App. A-12 to A-17, citing, inter alia, Stevens v. Tillman,

855 F.2d 394, 402 (7th Cir. 1988), cert. denied, 489 U.S. 1065, 109 S. Ct.

1339 (1989) (“Accusations of ‘racism’ no longer are“obviously and

naturally harmful.’ The word has been watered down by overuse,

becoming common coin in political discourse”); Sall v. Barber,

782 P.2d 1216, 1218-19 (Colo. App. 1989) (the charge “bigot,” in

context, was mere rhetoric); Scelfo v. Rutgers Untv., 116 N.J. Super.

403, 282 A.2d 445, 449 (1971) (stressing that the epithet “Racist Pig

Bastards” would not suggest to the average reader in the university

community that the police were remiss in their duty, but that the

author was angry, upset and resentful toward the police); Buckley v.

Littell, 539 F.2d 882 (2d Cir. 1976) (the accusations “fascist” and

“fellow traveler” were too imprecise in meaning to be defamatory),

cert. denied, 429 U.S. 1062, 97 S. Ct. 785 (1977).) Moreover, every case

that has considered terms like “racist,” “bigoted,” and “fascist”

under the “verifiability” test required under Milkovich has held such

accusations to be nonactionable as a matter of law, because “there

Footnote Continues ..

14

merits constitutional protection as part of our

profound national commitment to the principle

that debate on public issues should be uninhibited,

robust, and wide open, and that it may well include

vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.

New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84S. Ct. 710,

721 (1964).

Based on a full and careful analysis, the court of appeal

concluded that Kimura’s letter constituted speech protected

under the First Amendment. The court of appeal decision

expressly followed and correctly applied this Court’s decision

in Milkovich to the undisputed facts about the content and

context of Kimura’s letter. Consequently, the petition should

be denied.

are no objective criteria by which the truth or falsity of these

statements can be evaluated.” Liberty Lobby, Inc. v. Anderson, 746 F.2d

1563, 1572 (D.C. Cir. 1984), vacated on other grounds, 477 U.S. 242,

106 S. Ct. 2505 (1986); Carto v. Buckley, 649 F. ve 4 502, 507-10

(S.D.N.Y. 1986) (holding the accusation of “racial and religious

bigotry” nonactionable); Liberty Lobby, Inc. v. National Review, No. 79-

3445, slip op. at 10 (D.D.C. April 20, 1983) (holding the char * 4

“anti-Semitism” nonactionable); Liberty Lobby, Inc. v. Dow jones

638 F. Supp. 1149, 1152 (D.D.C. 1986) (noting that the term hen

Semitic” is “probably constitutionally protected opinion”), aff'd, 838

F.2d 1287 (D.C. Cir.), cert. denied, 488 U.S. 825, 109 S. Ct. 75 (1988);

Holy Spirit Ass'n for the Unification of World Christianity v. Sequoia

Elsevier Publishing Co., 75 A.D.2d 523, 524, 426 N.Y.S.2d 759, 760

(1980) (holding the phrase “Nazi-style anti-semitism”

nonactionable); Raible v. Newsweek, Inc., 341 F. Supp. 804, 807 (W.D.

Pa. 1972) (stressing that to call a person a bigot or other name

descriptive of his racial, political, religious, economic, or sociological

philosophies does not give rise to a libel action).

15

Ill. Certiorari Should Be Denied Because the Decision Is

Unpublished and the Holding Affects Only the Parties

Finally, the California Court of Appeals for the Sixth

District’s opinion is not a published decision, will not appear

in the official reporter, and cannot be cited or relied on as

precedent in any future California case. Cal. Rules of Court,

Rule 976(c)(2), discussed supra at n.4. The decision will

therefore affect only the parties to this action. For this reason

alone, this case does not merit a grant of certiorari. As the

Court stressed in Rice v. Sioux City Memorial Park Cemetery,

349 US. 70, 79, 75S. Ct. 614, 619 (1954), on dismissing a writ of

certiorari as improvidently granted,

[I]t is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public as distinguished from that

of the parties.

(quoting Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 393, 43 S. Ct. 422, 423 (1923)). For this reason as

well, the petition should be denied.

16

CONCLUSION

Because the California Court of Appeals for the Sixth

District’s unpublished decision does not raise an important

legal question and does not depart from existing uniformity in

state law on the subject, there is no basis for review. Indeed,

review would be improper because the decision was based on

independent and adequate state grounds. For these reasons,

the petition for writ of certiorari should be denied.

Dated: December 18, 1991

Respectfully submitted,

JACK W. LONDEN

JUDITH M. SCHELLY

GRANT L. KIM

JON S. TIGAR

MORRISON & FOERSTER

345 California Street

San Francisco, California 94104

(415) 677-7000

MARGARET C. CROSBY

EDWARD M. CHEN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

NORTHERN CALIFORNIA,

INC.

1663 Mission Street, Suite 460

San Francisco, California 94103

(415) 621-2493

Attorneys for Respondent

VICTOR KIMURA