Opposition Brief — Craft v. Metromedia, Inc.

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« FILED

1 WAN 1% 1988

JOSEPH F. SPANIOL,

No. 85-1053 _ if ———

} | 3 BUPICiIse VUUIL, Ves

‘

In the Supreme Court of the United States

OCTOBER TERM, 1985

CHRISTINE A. CRAFT,

Petitioner,

vs.

METROMEDIA, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

DonaLp W. GIFFIN

(Counsel of Record)

Curtis E. Woops

Mark P. JOHNSON

SPENCER, FANE, Britt & BROWNE

1000 Power & Light Building

106 West 14th Street

Kansas City, Missouri 64105

(816) 474-8100

Attorneys for Respondent

E. L. Menpenwatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

Api

QUESTIONS PRESENTED

1. Did the Court of Appeals err in holding that on

a challenge to the legal sufficiency of the evidence sup-

porting Petitioner’s state law fraud claim, and from its

examination of all the evidence, Petitioner had failed to in-

troduce sufficient evidence of an essential element of her

fraud claim, requiring judgment for Respondent notwith-

standing the verdict?

2. Did the Court of Appeals err in affirming the

District Court’s non-jury ruling for Respondent on sex

discrimination and not adopting the jury’s verdict on

Petitioner’s fraud claim, where the sex discrimination and

fraud claims involved different legal and factual issues,

different legal standards, and different evidence, and the

jury found for Respondent on Petitioner’s claim under

the Equal Pay Act?

TABLE OF CONTENTS

QUESTIONS PIRRGSEIV TED ccccccxvcsecnsecsccesccscsssipustmtoveems

TABLE OF AUT HROUIE SI iciscctctnccencinstctcrmniesvcpiens suite

STATEMENT OF THEE CAB ann nnncnccnncccccceccsccccceeceseeeeeee

REASONS FOR DENYING THE WRIT—

II.

IN THE DECISION BELOW THE COURT OF

APPEALS DETERMINED THE APPRO-

PRIATE STANDARD OF REVIEW AND AP-

PLIED THAT STANDARD PROPERLY IN

HOLDING THAT THE EVIDENCE WAS

LEGALLY INSUFFICIENT TO SUPPORT

THE DISTRICT COURT’S SUBMISSION OF

PETITIONER’S COMMON LAW FRAUD

CLAIM TO ‘TEAR DUIS psccicenictscctceapatonnnece

THE COURT OF APPEALS DETERMINED

AND PROPERLY APPLIED THE APPRO-

PRIATE STANDARD OF REVIEW OF THE

DISTRICT COURT’S RULINGS ON PETI-

TIONER’S TITLE VII CLAIM, AND PROP-

ERLY FOUND THAT THE DISTRICT

COURT’S FINDINGS OF FACT AND CON-

CLUSIONS OF LAW WERE NOT CLEARLY

RRO nso Sreecirpeeceeeneentoneennieaianl POCO Ale

CONCLITSION nicsccncnsessesenssninnianemevonensshpaaete ee aassiaichinneeananness

TABLE OF AUTHORITIES

Cases

Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d

RE ) aCe ea 10

Bauer v. Adams, 550 S.W.2d 850 (Mo. App. 1977) ........ 6, 10

Bellissimo v. Westinghouse Electric Corp., 764 F.2d

175 (3d Cir. 1985), petition for cert. filed, 54 U.S.L.W.

3346 (U.S. November 5, 1985) (No. 85-786) ........ 11

Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)

(on banc)... Speaatusp iat boilabasialgicaceniabiialpaatigs 6

Brandon v. Holt, ........ i Sn , 105 S.Ct. 873 (1985) 9

Caputo v. U.S. Lines Co., 311 Pod 413 (2d Cir. 1963) 11

Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911

FS ERS a A 6

Holter v. Moore & Co., 702 F.2d 854 (10th Cir. 1983),

cert. denied, ........ 8 ee , 104 S.Ct. 347 (1984) ...... 5-6

Jones v. Garney Plumbing Co., 409 S.W.2d 637 (Mo.

1966) ... Iepathaihcede Nabiac taaladaabas oslee ecthiwuchasghiconnesdinenentiienitecie 6

Kawin v. Chrysler Corp., 636 S.W.2d 40 (Mo. 1982)

i lcci wsanoncov 7

Klecker v. Sutton, 523 S.W.2d 558 (Mo. App. 1975) ........ 6

Lincoln v. Board of Regents of Univ. System, 697 F.2d

I AD snenccsacnccemnbetndepaicmnenensenicoregphanciacceenetete 11

Macon-Atlanta State Bank v. Gall, 666 S.W.2d 934

i nacsd dies bhieniddseteniciaep iatpatrioniciensonbnention 7-8

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 10

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........ 10

Rowe v. Farmers Insurance Co., Inc., 699 S.W.2d 423

STII RMU II oo cas csscisenscsonevnomsominnnecsatesancemnnnin 6

Texas Department of Community Affairs v. Burdine,

ee ee ED ee cncieceneeeeieerheehe 10

Toenjes v. L. J. McNeary Construction Co., 406 S. 2d

ee IY IID Ndi iaceeicecdestnipieneensenssntccolninaningetmamonscnes 7

U.S. v. Bucon Construction Co., 430 F.2d 420 (5th Cir.

1970) pdiaph gies stiaieetaeanbicbaamedateuaiesletaebiaseieiietinals 6

Statutes and Rules

SP ORs RE ED Sectpscenistnsoecgecanrnceceninchycondepicichamiesiansonibian 1

Ct. ee eee 11

ek tee REE | |} Bpemermnreniennnernenaennner a 1

Oe a SIR sida icrrescsoesssharniscinccaeisicaniatnneumnenmtmanats 10

RC SS, Oe ee en 9

Constitutional Provisions

ik Ge ) BRRn anny apr a Ene OE CUT Te 5, 8

Secondary Materials

9 C. Wright & A. Miller, Federal Practice and Proce-

I, Ti We We CUD ecards 6

No. 85-1053

In the Supreme Court of the United States

OCTOBER TERM, 1985

CHRISTINE A. CRAFT,

Petitioner,

VS.

METROMEDIA, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

STATEMENT OF THE CASE

Petitioner Christine Craft was a television newscaster

at KMBC-TV in Kansas City from January to August,

1981, when KMBC was owned by Respondent. Petitioner

filed a three-count complaint against Respondent in Jan-

uary, 1983, alleging claims under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e et seq. (1981), the

Equal Pay Act of 1963, 29 U.S.C. §206(d) (1978), and

Missouri common law fraud.

After trial the jury rendered verdicts in Respondent’s

favor on the Equal Pay Act claim and in Petitioner’s favor

on the fraud claim. On October 31, 1983, the District

Court found for Respondent on the Title VII claim and

ordered a new trial on the fraud claim due to instructional ©

errors and excessiveness of the damages awarded Peti-

tioner by the jury. The District Court’s opinion is re-

ported at 572 F.Supp. 868 (W.D. Mo. 1983).

At the new trial the District Court submitted Peti-

tioner’s fraud claim to the jury, which found for Petitioner.

On appeal, the Eighth Circuit Court of Appeals held that

the District Court erred in submitting the claim. to the

jury, as Petitioner had failed to introduce substantial evi-

dence that Respondent had committed a fraudulent act.

The Court of Appeals affirmed the District Court’s rul-

ing that Respondent had not discriminated against Peti-

tioner and the first jury’s verdict for Respondent on

the Equal Pay Act claim. The opinion of the Court of

Appeals is reported at 766 F.2d 1205 (8th Cir. 1985).

Petitioner now seeks review of the Court of Appeals’

ruling on her fraud claim under Missouri common law.

She claims that her employer (Respondent) defrauded

her when it criticized and attempted to improve her on-

camera television appearance, allegedly contrary to its

prior representations that it intended “no makeover or

substantial changes” in her appearance.

Although Petitioner’s claim was for affirmative mis-

representation, not for failure to disclose, the Petition

before this Court demonstrates that Petitioner now mod-

ifies her claim by referring to Respondent’s supposed

failure to tell her about some aspects of its operation.

(Petition, 4-5). Petitioner never asked the District Court

to submit a failure to disclose claim and she did not

raise that issue in the Court of Appeals.

The Court of Appeals, relying on Missouri case law,

held that Petitioner defined what was meant by the “no

makeover or substantial change” representations in pre-

employment negotiations. 766 F.2d at 1220. (Appendix

to Petition, 29-30). Petitioner admitted that her concern

about appearance makeovers arose from her employment

two years earlier at CBS Sports (Tr. II 91), which she

testified she described to Respondent as CBS forcing her

to cut her hair severely and dye it from light brown to

platinum blonde, shaving her eyebrows and dying them

black (Tr. I 64-65), having plastic surgery performed to

correct a drooping eyelid (Tr. II 118-119), and each time

before Petitioner appeared on-camera, a CBS technician

applying “heavy” makeup to her face. (Tr. I 66-68). Robert

Hamilton, an attorney who represented Petitioner in pre-

employment negotiations with Respondent, told Respon-

dent’s news director, Ridge Shannon, “[y]ou know what

CBS did to Christine. They tried to make her into

something she was not. They tried to change her.. .”

(Tr. III 45). In Petitioner’s presence, Hamilton told

Shannon that when Petitioner was at CBS, “. . . they

really made an effort to fundamentally change her ap-

pearance, and she doesn’t want to go through that.” (Tr.

III 11).

In her Statement of the Case, Petitioner opines that

when she worked for Respondent, management evinced

a “ ‘relentless’ obsession” with her appearance. However,

the Court of Appeals properly held that Respondent’s acts

during her employment did not substantiate her claim

that the representation was false when made. 766 F.2d at

1219-21 & n. 17. (Appendix, 27-32). On only one out of

more than 200 on-camera appearances did anyone but

Petitioner apply her makeup. (Tr. II 117-18). Respon-

dent never criticized Petitioner about her hair. Petitioner

admitted that news director Shannon’s comments about

the asymmetry of her eyes and face paralleled an evalua-

tion made by her plastic surgeon two years before. (Tr.

II 118-19). She met with Respondent’s consultant no

more than three to five times during her eight months

of employment, and those meetings for the most part dealt

with the mechanics and technical aspects of newscasts,

not appearance. Not until two weeks before her resigna-

tion was she told to wear specific items of clothing—which

Petitioner admits were provided to her at no cost and

to which she did not object. (Tr. II 38, V 145; Pl. Ex. 163).

Thus, as the Court of Appeals held, Petitioner’s own evi-

dence fails to support her claim that her appearance was

fundamentally changed.’

In addition, Petitioner’s Statement of the Case com-

pletely ignores the adverse results of audience research

which was conducted several months into her tenure with

Respondent.’ It is uncontradicted that the audience re-

sponse to Petitioner’s performance and appearance was

overwhelmingly negative. Because of the May, 1981 re-

search results all offhand references to Petitioner’s Cali-

forria background ceased and she received a clothing cal-

endar to improve her on-camera appearance. (Tr. II 26,

127).

In August, 1981 Respondent received the final results

of a telephone survey conducted in June and July of 1981.

Again, Petitioner was viewed poorly by the audience in

almost all aspects of her performance. On August 14, 1981

Respondent’s news director informed Petitioner of the

results and of the station’s decision to reassign her from

the co-anchor position (at no loss in pay) because of the

1. The Court of Appeals held:

The ultimate measure of the representation’s truth or falsity

is what Craft could reasonably have understood KMBC to

have promised. She testified that a “makeover” was

“changing someone’s appearance” and that she had believed

KMBC didn’t want to change anything about her. This po-

sition, however, is not totally consistent with the “substantial

changes” language submitted in the jury instruction. It

seems plain, thus, that a jury could not have reasonably

measured the falsity of KMBC’s representation against

Craft’s subjective view of a “makeover” as any change ai.

all.

766 F.2d at 1220 (Appendix, 29).

2. Ignoring the audience research evidence was the most

glaring example of Petitioner’s selective view of the evidence,

as portrayed in her Statement of the Case.

research. Petitioner chose to quit, return to her previous

employer, a television station in Santa Barbara, California,

and file suit.

REASONS FOR DENYING THE WRIT

I. IN THE DECISION BELOW THE COURT OF

APPEALS DETERMINED THE APPROPRIATE

STANDARD OF REVIEW AND APPLIED THAT

STANDARD PROPERLY IN HOLDING THAT

THE EVIDENCE WAS LEGALLY INSUFFI-

CIENT TO SUPPORT THE DISTRICT COURT’S

SUBMISSION OF PETITIONER’S COMMON

LAW FRAUD CLAIM TO THE JURY.

Under the guise of the Seventh Amendment, Peti-

tioner attacks the Eighth Circuit for comprehensively re-

viewing the evidence to determine its legal sufficiency.

A review of the Eighth Circuit opinion manifests the

Court’s understanding of and allegience to the appropriate

standard to be utilized by an appellate court in reviewing a

claim based on Missouri law. The writ should be denied,

for Petitioner has raised no constitutional or substantial!

federal question warranting review by the Supreme Court,

nor has she demonstrated a conflict among the Circuits

on a significant issue.

Petitioner ignores settled law requiring comprehensive

review of the evidence when an appellate court is con-

fronted with a challenge to the legal sufficiency of the evi-

dence. This was not a case of appellate fact-finding, as

Petitioner asserts, but a case involving a thorough con-

sideration of all the evidence for legal sufficiency. The

Courts of Appeals unanimously agree that assessment of the

legal sufficiency of the evidence is for the court, not a

jury. See, e.g., Holter v. Moore & Co., 702 F.2d 854, 855

(10th Cir.), cert. denied, ........ US. ........, 104 S.Ct. 347

isi

(1983); U.S. v. Bucon Construction Co., 430 F.2d 420,

423 (5th Cir. 1970). See also, 9 C. Wright & A. Miller,

Federal Practice and Procedure, {2524, at 541 (1971).

Under both Missouri and federal law, a plaintiff must

introduce substantial evidence to support the submission of

a claim to the jury. Boeing Co. v. Shipman, 411 F.2d 365,

373-77 (5th Cir. 1969) (en banc); Rowe v. Farmers In-

surance Co., Inc., 699 S.W.2d 423, 429 (Mo. 1985) (en banc)

(Blackmar, J., concurring) (“Missouri . . . disclaims the

scintilla rule and holds that every element of a case must

be established by substantial evidence.”); Jones v. Garney

Plumbing Co., 409 S.W.2d 637, 645 (Mo. 1966). The Court

of Appeals thus applied the proper standard in holding

that absent substantial evidence of an element of her

claim, Petitioner’s claim must fail. 766 F.2d at 1218 (Ap-

pendix, 25); Bauer v. Adams, 550 S.W.2d 850, 853 (Mo.

App. 1977). The Court of Appeals’ obligation was to

examine the entire record, consisting of over twenty vol-

umes of transcript and dozens of exhibits, to determine

whether, under controlling Missouri law, Petitioner intro-

duced substantial evidence of each element of her fraud

claim. As the Court of Appeals did in this case, the Mis-

souri courts have engaged in precisely such an analysis of

the evidence in fraud cases and often have granted judg-

ment for defendants notwithstanding the verdict. Grosser

v. Kandel-Iken Builders, Inc., 647 S.W.2d 911 (Mo. App.

1983); Bauer v. Adams; Klecker v. Sutton, 523 S.W.2d

558 (Mo. App. 1975).

The verdict-directing instruction requested by Peti-

tioner and submitted to the jury contained the representa-

tion by Respondent that it intended “no makeover or sub-

stantial changes in [Petitioner’s] appearance.” As the

Court of Appeals properly held, Missouri law required Pe-

titioner to prove that Respondent did not intend to perform

consistently with those words at the time they were ut-

tered. 766 F.2d at 1219. (Appendix, 27). In examining

the evidence to determine whether Petitioner introduced

substantial evidence of intent, the Court followed Missouri

law in holding that Petitioner defined the representation

by her detailed discussion of CBS:

[t]he language of an alleged misrepresentation must

be considered in light of the background in which the

statements were made and the context in which the

words were used. [Toenjes v. L. J. McNeary Con:

struction Co., 406 S.W.2d 101, 106 (Mo. App. 1966) ]}.

KMEC’s statements to Craft were made in response

to her expressions of concern about her experience

with CBS, where the network had required that her

hair be cropped and dyed blond, her eyebrows shaved

and dyed black, and heavy makeup applied.

766 F.2d at 1220. (Appendix, 30). Having defined the rep-

resentations, Petitioner could not ascribe an even broader

meaning to them at the time of trial, cf. Kawin v. Chrysler

Corp., 636 S.W.2d 40, 43 (Mo. 1982) (en banc), nor can

she do so before this Court.

According to Petitioner, any claim should go to the

jury, regardless of how strained the necessary inferences.

Without citation to the record, and no basis in the evidence,

she asserts that Respondent had a “. . . conceded intent

to change Craft’s appearance .. .” (Petition, 18). The

Court of Appeals correctly rejected that conclusion, as

Respondent never conceded such intent, and the infer-

ences Petitioner asserted did not reasonably point toward

fraudulent intent. 766 F.2d at 1220-21. (Appendix, 30-32).

The Court of Appeals properly followed Missouri law

that evidence in a fraud case which is susceptible of

conflicting inferences must be viewed as supporting hon-

esty and good faith, not perversity or bad faith. Macon-

Atlanta State Bank v. Gall, 666 S.W.2d 934, 941 (Mo. App.

1984). Petitioner’s strained analysis of the inferences

could not by itself raise a jury question, as the Court of

Appeals held in determining and applying the appropriate

standard of review.

Finally, Petitioner accuses all of the Circuits of rou-

tinely applying improper standards of appellate review.

She bases that accusation solely upon the Eighth Circuit’s

decision in her case and an inherently suspect “statistical

analysis” of each Circuit’s reversal rate over only one

year. From her solely quantitative analysis, Petitioner

concludes that the appellate courts have usurped every

litigant’s right to a jury trial every time a reversal was

grounded on a failure to make a submissible case.

One cannot respond to an “analysis” so totally lacking

in scientific basis, as it is dependent on an unexplained

methodology grounded on subjective opinion as to the

grounds for reversal, and excludes the large number of

unreported decisions or summary dispositions—which are

almost always affirmances—and decisions which do not

reach the issue of sufficiency of the evidence. Despite

these glaring defects in her “statistics,” Petitioner con-

cludes that a certain rate of reversal proves a constitutional

violation. This “study” lends no support to Petitioner’s

claim that the Circuits only pay “lip service” to the Seventh

Amendment and violate its mandate flagrantly.* (Petition,

3. In addition to accusing it of usurping her right to jury

trial, Petitioner claims the Eighth Circuit was motivated by

prejudice against her. She accuses the Eighth Circuit of ‘‘dupli-

city” (Petition, 22 n. 16), “single-minded bias” (Petition, 18 n.

14), conducting “‘blatantly false” fact-finding (Petition, 20), and

evincing an anti-female attitude. (Petition, 21). In like fashion,

on appeal to the Eighth Circuit, Petitioner accused the District

Court of “preconceived bias” against her. (Brief of Appellee/

Cross-Appeilant, at 27 n. 9). Petitioner’s statistics with respect

to other Circuits’ usurpation of litigants’ jury tria! rights are not

ascribed any motive, sex discrimination or otherwise, nor does

Petitioner refer to any scholarly research supporting her con-

clusions about these ‘statistics.’

15). With respect to the cause before this Court, however,

there is an opinion and a record which disproves Petition-

er’s claim.

Petitioner thus presents no constitutional issue, no

substantial federal question, nor any conflict among the

decisions of the various Courts of Appeals. The Petition

should be denied.

II. THE COURT OF APPEALS DETERMINED AND

PROPERLY APPLIED THE APPROPRIATE

STANDARD OF REVIEW OF THE DISTRICT

COURT’S RULINGS ON PETITIONER’S TITLE

VII CLAIM, AND PROPERLY FOUND THAT

THE DISTRICT COURT’S FINDINGS OF FACT

AND CONCLUSIONS OF LAW WERE NOT

CLEARLY ERRONEOUS.

After the August, 1983 trial in Kansas City, the Dis-

trict Court found against Petitioner on her claim of sex

discrimination under Title VII. The Court of Appeals

correctly held that it could reverse that ruling only if

clearly erroneous under Rule 52(a), Fed. R. Civ. P. After

examining the evidence, the Court of Appeals properly

found that the District Court’s findings were not clearly

erroneous,

Petitioner now claims that in rendering its decision

on the Title VII count, the District Court should have fol-

lowed the jury’s findings arising out of the fraud count.

(Petition, 21-24). The Court of Appeals did not address

this point and therefore the point is not in a posture for

consideration by this Court on a writ of certiorari. Bran-

don v. Holt, ........ USS. ......... 105 S.Ct. 873, 879 n. 25 (1985).

Even if the point is properly before this Court, Peti-

tioner overlooks the fact that the jury found for Respon-

dent on the Equal Pay Act count, conclusively undermin-

ing her assertion that the jury found all of the factual

issues in her favor. Further, the sex discrimination and

fraud issues presented to the District Court and the jury,

respectively, did not “overlap,” Petitioner’s assertion to

the contrary notwithstanding. The “critical factual is-

sues” were not “largely the same,” as Petitioner asserts.

(Petition, 22). The jury ruled on fraud while the Dis-

trict Court faced the issue of discrimination. As this Court

recently held, in a Title VII case, discrimination vel non

is a factual issue to be decided solely by the trial judge.

Pullman-Standard v. Swint, 456 U.S. 273, 285-90 (1982).

The respective burdens of proof were different, the

Title VII claim being controlled by the federal shifting

burden of proof analysis outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Texas Depart-

ment of Community Affairs v. Burdine, 440 U.S. 248

(1981), while the burden of proof on the fraud claim was

governed by Missouri law, outlined, for example, in Bauer

v. Adams, 550 S.W.2d at 852-53. In addition, the damages

recoverable were different, so the evidence relevant to

damages under Title VII and the common law fraud claim

also differed. Section 706(g) of Title VII allows for both

legal and equitable relief, but not for compensatory or

punitive damages, 42 U.S.C. §2000e-5(g), while on a Mis-

souri fraud claim, actual and punitive damages may be

recovered. Ackmann v. Keeney-Toelle Real Estate Co..,

401 S.W.2d 483 (Mo. 1966) (en banc).

In the instant case, the evidence before the factfinders

was also different. The District Court heard and consid-

ered evidence which the jury did not hear, and heard

lengthy offers of proof which were never presented to

the jury. The District Court’s decision was based on

evidence demonstrating the absence of discriminatory dis-

tinctions between males and females at Respondent’s sta-

tion while Petitioner was employed. On the other hand,

the jury’s resolution of the fraud claim was based on

specific conversations between Petitioner and Respondent’s

station manager and news director before Petitioner was

hired.

The two cases cited by Petitioner are inapposite, as

in those cases the judge and jury decided identical claims

based on identical evidence. Lincoln v. Board of Regents

of Univ. System, 697 F.2d 928 (11th Cir. 1983) (race dis-

crimination under Title VII and 42 U.S.C. §1981); Caputo

v. U.S. Lines Co., 311 F.2d 413 (2d Cir. 1963) (liability

for personal injury).

Finally, Petitioner asserts that her claim as to the

binding effect of the jury verdict is also before the Court

in Bellissimo v. Westinghouse Electric Corporation, 764

F.2d 175 (3d Cir. 1985), petition for cert. filed, 54 U.S.L.W.

3346 (U.S. November 5, 1985) (No. 85-786). Petitioner is

incorrect, for in Bellissimo the legal and factual issues

tried by the judge and jury were identical, i.e., whether

Ms. Bellissimo was discriminated against because of her

sex in terms of the salary she was paid (the District Court

considered the claim under Title VII, and the jury con-

sidered the claim under the Equal Pay Act). (Petition

for Writ of Certiorari, No. 85-786, at 26-36). In Petitioner’s

case, as demonstrated above, the judge and jury issues

were in no way identical.

Petitioner therefore presents no substantial federal

question, no constitutional issue, nor a dispute among

the decisions of the Courts of Appeals. The Petition should

be denied.

CONCLUSION

For the above reasons Respondent respectfully sub-

mits that the Petition for a Writ of Certiorarr to the

Eighth Circuit should be denied.

Respectfully submitted,

DoNALD W. GIFFIN