Opposition Brief — Smith v. McDonald

No. 89-1818

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

DAVID I. SMITH,

Petitioner,

Ve

ROBERT MCDONALD,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

WIL™IAM WOODWARD WEBB

BROUGHTON, WILKINS

& WEBB, P.A.

P.O. Box 2387

Raleigh, NC 27602

(919) 833-2752

Counsel for Respondent

aiatcae

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

= Aw mhints Brite AAR

QUESTIONS PRESENTED

I. Whether the decision of the Fourth Circuit Court of

Appeals is entitled to review under Rule 10 of the Rules

of the Supreme Court?

II. Whether the Fourth Circuit Court of Appeals erred

in reversing the judgment of the District Court by con-

cluding that the respondent’s written communications

to the president-elect (and later president) concerning a

potential candidate for the position of United States

Attorney were absolutely privileged under the common

law of North Carolina?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .................--.-20-00-c<-ceeceeceessevee

ps hg

ES re

JURISDICTION ................. Ae Ee SE RSC

STATEMENT OF THE CASE .......00000002.20.22eeeeee

SUMMARY OF ARGUMENT .........00.00022222.22eeceeee eee

REASONS FOR DENYING THE WRIT ......................

I. THE DECISION OF THE FOURTH CIRCUIT

II.

COURT OF APPEALS IS NOT ENTITLED TO

REVIEW UNDER RULE 10 OF THE RULES

OF THE SUPREME COURT ..........000020.2....-..-

THE FOURTH CIRCUIT COURT OF AP-

PEALS DID NOT ERR IN REVERSING THE

JUDGMENT OF THE DISTRICT COURT BY

CONCLUDING THAT THE RESPONDENT'S

WRITTEN COMMUNICATIONS TO THE

PRESIDENT-ELECT (AND LATER PRESI-

DENT) CONCERNING A POTENTIAL CAN-

DIDATE FOR THE POSITION OF UNITED

STATES ATTORNEY WERE ABSOLUTELY

PRIVILEGED UNDER THE COMMON LAW

gE

ae sla cid ctisaenccentnapncksicacrusonerncovwencntvers

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Angel v. Ward, 43 N.C.App. 288, 258 S.E.2d 788

(1979) 5, 8-14

Cooper v. California, 8386 U.S. 58 (1967) ............... . 13

Diaz v. Indian Head, Inc., 686 F.2d 558 (7th Cir.

RS ee ties eer ar Iey ACEH La NW ae A 13

Holmes v. Eddy, 341 F.2d 477 (4th Cir. 1965),

cert. denied, 382 U.S. 892 (1965), reh. denied,

383 U.S. 922 (1966) . We ee oO 5, 12-14

Jones v. City of Greensboro, 51 N.C.App. 571, 277

Se Gee CIOS) ni a 5

McDonald v. Smith, 472 U.S. 479 (1985) _............. 3, 14

PruneYard Shopping Center v. Robins, 447 U.S.

a RERE ER 5,13

Smith v. McDonald, 562 F.Supp. 829 (M.D.N.C.

1983) . 3

Smith v. McDonld, 737 F.2d 427 (4th Cir. 1984)... 8

Smith v. McDonald, 895 F.2d 147 (4th Cir. 1990). 2,4

Smith v. McDonald, No. 89-1401 (4th Cir., Feb. 28,

WOUND ees hs rk a i te 2

CONSTITUTIONAL PROVISIONS:

Us. Gonmk, Ammonis 8 poo ei 3-7

STATUTES AND COURT RULES:

28 U.S.C. Section 541(a) (1982) eae 12

kg ARRESTS SURLY Se 87 9 EO es 2, 4,6

Sup. Ct. R. 49.2 14

OTHER AUTHORITY:

18 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure, Section 4478 (1981) ............. 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1818

DAVID I. SMITH,

Petitioner,

V.

ROBERT MCDONALD,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit ag

BRIEF IN OPPOSITION

TO THE HONORABLE WILLIAM H. REHNQUIST,

CHIEF JUSTICE OF THE SUPREME COURT OF

THE UNITED STATES.

Respondent, ROBERT McDONALD (hereinafter “Re-

spondent” or “McDonald”), respectfully prays that the

Petition for Writ of Certiorari filed by Petitioner,

DAVID I. SMITH (hereinafter “Petitioner” or

“Smith”), be denied. In support of his position Respond-

ent respectfully shows that:

2

OPINION BELOW

A copy of the decision of the Fourth Circuit Court of

Appeals in this case, David I. Smith v. Robert McDonald,

895 F.2d 147 (4th Cir. 1990), is attached as Exhibit A

to the Petition. A copy of the Fourth Circuit’s panel

decision denying rehearing, David I, Smith v. Robert

McDonald, No. 89-1401 (4th Cir. Feb. 28, 1990), is at-

tached as Exhibit H to the Petition.

JURISDICTION

The Petition for Writ of Certiorari should be denied

because (1) the decision rendered by the Fourth Circuit

in this matter does rot conflict with the’ decision of

another federal court of appeals on the same matter; (2)

the Fourth Circuit’s decision does not conflict with that

rendered by a state court of last resort; and (3) the

Fourth Circuit’s decision does not represent a departure

from the accepted and usual course of judicial proceed-

ings. Moreover, there is no special or important reason

for granting the Petition. See Sup. Ct. R. 10.

STATEMENT OF THE CASE

On July 24, 1981, the Petitioner, David I. Smith, an

unsuccessful candidate for the office of United States

Attorney for the Middle District of North Carolina, com-

menced a common law libel action against the Respon-

dent, Rebert McDonald, seeking one million dollars in

compensatory and punitive damages because of allegedly

defamatory statements, made during Smith’s campaign,

regarding his qualifications for that position. The state-

ments were contained in two private letters (dated De-

cember 1, 1980 and February 13, 1981) from McDonald

to President Reagan with copies to only three other high

public officials.

1 Notwithstanding the Petitioner’s repeated unsupported asser-

tions to the contrary, these letters were sent by the Respondent

3

This action was originally filed in the Superior Court

of Alamance County, North Carolina, but subsequently,

on August 25, 1981, was removed to the United States

District Court for the Middle District of North Carolina.

In an Order and Memorandum Opinion dated March 19,

1982, the District Court denied McDonald’s motion to

dismiss and Smith’s motion to remand the case to state

court.

Thereafter, the District Court, on April 28, 1983, de-

nied McDonald’s motion for judgment on the pleadings,

ruling that the alleged libelous communications were not

entitled to an absolute privilege under the “Petition

Clause” of the First Amendment to the United States

Constitution. Smith v. McDonald, 562 F.Supp. 829

(M.D.M.C. 1983). McDonald appealed to the Fourth

Circuit which affirmed the District Court. Smith v.

McDonald, 737 F.2d 427 (4th Cir. 1984). The United

States Supreme Court, on June 19, 1985, affirmed the

decision of the Fourth Circuit, and the case was re-

manded to the District Court. McDonald v. Smith, 472

U.S. 479 (1985) .?

On March 5, 1987, the District Court denied Mc-

Donald’s motion for summary judgment, and the case

proceeded to trial by jury on May 16-20, 1988. On May

20, 1988, the jury returned a verdict for Smith in the

amount of two hundred thousand dollars ($200,000.00),

of which one hundred (fifty thousand dollars

($150,000.00) were punitive damages. On August 25,

1988, the Court denied McDonald’s post-trial motions.*

only to Mr. Reagan, Edwin Meese, Senator Jesse Helms and FBI

Director William Webster.

2 Both the Fourth Circuit and this Court focused the inquiry

solely on the constitutional question presented; i.e., whether the

Petition Clause of the First Amendment provides absolute im-

munity to a defendant charged with libel of a political figure.

8 Strikingly, the Petitioner has failed to mention in his discussion

of the jury verdict that by virtue of the rulings on the Respondent’s

4

The subsequent appeal of the Fourth Circuit, ied on

September 20, 1988, addressed, inter alia, whether the

Respondent was entitled to an absolute privilege under

the common law of North Carolina. On February 2,

1990, the Fourth Circuit reversed the judgment of the

District Court, holding that the Respondent’s communica-

tions were absolutely privileged under North Carolina

common law. Smith v. McDonald, 895 F.2d 147 (4th

Cir. 1990).

The Petitioner’s petition for rehearing and petition

for rehearing en banc were both denied on February 28,

1990 (Petition Appendix H). From these decisions the

Petitioner seeks the review of this Court.

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari presents no spe-

cial or important reason for this Court to review the

decision of the Fourth Circuit. Moreover, it is not in

conflict with the decision of another United States ap-

pellate court on the same matter; it has not focused on,

much less decided, a federal question in a manner con-

flicting with a state court of last resort; and it certainly

does not constitute a departure from the accepted and

usual course of judicial proceedings. See Sup. Ct. R. 10.

In the prior decisions in this litigation both the Fourth

Circuit and this Court considered and rejected the Re-

spondent’s sole broad public policy argument that his

letters to President-Elect Reagan and later President

Reagan were enveloped with absolute privilege under the

Petition Clause of the First Amendment. Neither Court

addressed nor even cited any authority concerning what

common law privilege might be available to the Re-

spondent absent a constitutional basis.

post-trial motions only three statements covering two topics (out

of the six pages, 29 paragraphs and 17 topics comprising the two

letters) were actually held libelous by the District Court.

5

Upon remand to the District Court for further dis-

position, the focus of the action was narrowed to whether

an absolute privilege was available to the Respondent

under the common law of North Carolina as interpreted

by the cases of Angel v. Ward, 43 N.C. App. 288, 258

S.E.2d 788 (1979), Jones v. City of Greensboro, 51 N.C.

App. 571, 277 S.E.2d 562 (1981) and Holmes v. Eddy,

341 F.2d 477 (4th Cir. 1965), cert. denied, 382 U.S. 892

(1965), reh. denied, 883 U.S. 922 (1966). In its care-

fully considered decision, for which review is now sought,

the Fourth Circuit correctly held that under North Caro-

lina common law the Respondent’s letters were absolutely

privileged because they were written in connection with

a quasi-judicial proceeding. The controlling decisions in

Angel, Junes and Holmes, supra, render the decisions

of the Fourth Circuit in the case sub judice inescapable

and indisputable.

Moreover, there are no federal law or constitutional

questions involved at this juncture, those having been

disposed of by the Fourth Circuit and this Court in 1984

and 1985.

In final response to the argument that the Fourth Cir-

cuit has somehow run afoul of or sinisterly contravened

the prior decision of this Court, the Respondent asserts

that it is established that a State may accord its citizens

more expansive liberties than those conferred by the

Federal Constitution. PruneYard Shopping Center v.

Robins, 447 U.S. 74 (1980). Hence, while the Petition

Clause of the First Amendment may not have provided

the Respondent with all the protection he sought or

needed, certainly the State of North Carolina by her

common law has done so.

6

REASONS FOR DENYING THE WRIT

I. THE DECISION OF THE FOURTH CIRCUIT COURT

OF APPEALS IS NOT ENTITLED TO REVIEW

UNDER RULE 10 OF THE RULES OF THE SU-

PREME COURT. ’

Rule 10 of the Rules of the Supreme Court of the

United States provides in pertinent part:

“A petition for a writ of certiorari will be granted

only when there are special and important reasons

therefor.” Sup. Ct. R. 10.

There are no special or important reasons for this

Court to review the decision of the Fourth Circuit. It

does not conflict with another federal appellate court de-

cision; it does not determine (or even address) a federal

question in any way at odds with a state court of last

resort; and it does not constitute a departure from the

accepted and usual course of judicial proceedings. See

Sup. Ct. R. 10.1(a)-(¢).

Recognizing that he cannot offer a reason of the char-

acter identified by Supreme Court Rule 10.1 (a) through

(ec), aS appropriate for review, the Petitioner appears

to suggest some sinister plot on the part of the Fourth

Circuit to ignore or thwart the prior decision of this

Court in this case. However, it is crystal clear that this

Court’s prior decision focused exclusively on the issue of

whether the Respondent was entitled to an absolute priv-

ilege under the Petition Clause of the First Amendment.

What other privilege might be available to the Respond-

ent was never discussed or decided. The only reference

to the common law in this Court’s prior decision was in

the context of approving the State law respecting the

constitutional prerequisite to a recovery of damages and

holding that the Petition Clause does not require North

Carolina to expand that precondition any further. Suc-

cinctly, this Court declared that the Petition Clause does

7

not per se provide carte blanche protection for otherwise

defamatory statements about public officials.

This same issue was likewise the only one before the

Fourth Circuit in 1984 when it also confiningly concluded

that the Petition Clause was of no assistance to the Re-

spondent. It is interesting that two of the same Fourth

Circuit judges who decided the initial appeal in 1984

rendered the decision now under attack by the Peti-

tioner.*

The only prior reference to common law privilege out-

side the context of the Petition Clause is found in dicta

of the District Court’s Memorandum Opinion of April

28, 1988. See Petition Exhibit G. Thereafter, until the

case was remanded by this Court to the District Court,

the single issue considered and decided was the Respond-

ent’s privilege, if any, under the Petition Clause. It is

misleading in the extreme then to state that the “common-

law privilege question [was] properly included” in this

Court’s first examination of the case. See PETITION,

page 7. It is equally misleading, at best, to state that

“(t]his Court in 1985 settled the question of the... .

common law privilege applicable to [the Respondent]”’.

See PETITION, page 9.

In 1985 this Court addressed the only issue before it

which involved solely the scope of the Petition Clause

protection to the Respondent. The present Fourth Cir-

cuit decision in no way detracts from, undermines, cir-

cumvents or ignores that Opinion. Rather, it simply

focused on and decided a different question.

Finally, it is absurd to suggest that since the Court in

1985 resolved the constitutional question presented to it,

it also resolved a non-constitutional issue that was not

presented to it. There is absolutely no justification for

the argument that this Court must have determined that

4 Quite clearly, Judges Widener and Russell must have perceived

no inconsistency between the decisions.

8

the Respondent had no dispositive state law defense be-

cause otherwise it would not have passed on the Petition

Clause issue. The Petitioner, in a desperate last grasp

for reiief, has read volumes more into this Court’s prior

decision than actually exists. :

The Petitioner has failed to present any special or

important reasons for granting the writ and, therefore,

it should be denied.

II. THE FOURTH CIRCUIT COURT OF APPEALS DID

NOT ERR IN REVERSING THE JUDGMENT OF

THE DISTRICT COURT B¥ CONCLUDING THAT

THE RESPONDENTS WRITTEN COMMUNICA-

TIONS TO THE PRESIDENT-ELECT (AND LATER

PRESIDENT) CONCERNING A POTENTIAL CAN-

DIDATE FOR THE POSITION OF UNITED STATES

ATTORNEY WERE ABSOLUTELY PRIVILEGED

UNDER THE COMMON LAW OF NORTH CARO-

LINA.

The essence of the Fourth Circuit decision in this case

is that the selection and appointment of a United States

Attorney by a President (and his support staff) consti-

tute an administrative proceeding during the course of

which the President performs a quasi-judicial function,

and, therefore, communications made in connection there-

with are entitled to an absulute privilege under North

Carolina common law. In suggesting that the Fourth Cir-

cuit misread and misapplied the governing case of Angel

v. Ward, supra, the Petitioner disputes that the Presi-

dent is exercising quasi-judicial functions or that there is

a “proceeding” involved in the process of choosing a

United States Attorney. Hence, a careful analysis of

Angel is warranted.*

5In its 1983 opinion in this case, the District Court construed

Angel v. Ward as supporting only a qualified privilege with respect

to “. . . communications to public officials regarding the fitness of

subordinates for public office .. .” 562 F. Supp. at 834. The District

Court also acknowledged, however, that Angel v. Ward stands for

9

In Angel, the plaintiff, a former Internal Revenue

Service agent, brought an action for damages against a

certified public accounting firm and its partner (Ward)

alleging libel and malicious interference with her em-

ployment contract. The facts of the case indicated that

the defendant Ward had telephone Mr. William T. Allen,

the plaintiff’s immediate supervisor, to complain about

the manner in which the plaintiff treated his firm’s

clients and her competence to conduct examinations of

tax returns. Allen requested Ward to place his com-

plaints in writing and Ward did so. The plaintiff’s job

was subsequently terminated and she filed suit, Angel,

43 N.C. App. at 289, 258 S.E.2d at 789-90. In his let-

ter, Defendant Ward alleged:

Mr. Bill Allen

Internal Revenue Service

sreensboro, NC

Dear Bill:

It is not my usual manner to make a formal pres-

entation of the inadequacies of a person’s work... .

Ms. Angel has examined the tax returns of several

of our clients in Greensboro and in Reidsville. Our

Reidsville Manager complained of the manner in

which she conducted her examination. He expressed

concern for the harassment of the client whose tax

return was under review. Another partner in our

Greensboro office expressed similar concern with re-

spect to his client’s treatment at the hands of Ms.

Angel. She may not have intended to harass the

client, but the vindictive way the questions were ex-

the proposition that “The [absolute] privilege attending communi-

cations made in the course of judicial proceedings has been extended

to communications in an administrative proceeding where the admin-

istrative officer or agency is acting in a judicial or quasi-judicial

function.” Id. The District Court did not, however, determine

whether the Respondent’s letters to the President were sent in con-

nection with a judicial proceeding.

10

pressed certainly caused adverse reactions on the

part of these respective clients and the partners in

charge. The Greensboro partner pointed out Ms.

Angel’s inability to grasp certain fundamental ac-

counting practices. 7

.... Throughout the examination she exhibited an

inability to draw an issue to any conclusion that

gave any weight to the merits of the client’s argu-

ments. This trait, coupled with accusative com-

ments, suggests a type of fear that she would be

tricked and that any comments on my part were

made only to defer her attention from the questions

she had raised. Frequently, I found myself trying

to explain to Ms. Angel routine accounting entries

and the related tax treatment of certain transactions

which revealed at least a level of expertise below

what one should expect of an Internal Revenue

Agent....

The professionalism exhibited by the great major-

ity of Internal Revenue Agents suggests that an ex-

ception to the rule should be called to your attention.

Very truly yours,

STRAND, SKEES, JONES COMPANY

/s/ Robert L. Ward

C.P.A., Partner

Angel, 48 N.C. App. at 290-91, 258 S.E.2d at 791 (em-

phasis in original).

The Superior Court of Forsyth County entered sum-

mary judgment in favor of the defendants, who filed an

answer asserting as affirmative defenses truth, absolute

privilege and qualified privilege. On appeal, the North

Carolina Court of Appeals held that the defendants were

entitled to an absolute privilege with respect to state-

ments contained in Mr. Ward’s letter and affirmed the

11

trial court’s entry of summary judgment for the defend-

ants.

Writing for the court, Judge Erwin (now a United

States District Judge) addressed the defendant’s entitle-

ment to absolute privilege:

Had defendants merely mailed the letter to plain-

tiff’s superiors, the communication would have been

entitled to a qualified privilege. However, in the in-

stant case, defendants admittedly submitted their let-

ter upon the request of plaintiff’s immediate super-

visor, who was putting together an evidentiary file

to support his superior’s decision to terminate plain-

tiff’s employment with the Internal Revenue Service.

Defendants contend that this circumstance raises

their privilege to the status of an absolute privilege.

We agree.

A defamatory statement made in the due course

of a judicial proceeding is absolutely privileged. The

privilege attending communications made in the

course of judicial proceedings has been extended to

protect communications in an administrative pro-

ceeding only where the administrative officer or

agency in the proceeding in question is exercising a

judicial or quasi-judicial function.

Angel, 43 N.C. App. at 298, 258 S.E.2d at 791-92 (cita-

tions omitted). Judge Erwin continued:

In Black’s Law Dictionary (4th ed. rev. 1968),

quasi-judicial is defined as “[a] term applied to the

action, discretion, etc., of public administrative of-

ficers, who are required to investigate facts, or as-

certain the existence of facts, and draw conclusions

from them, as a basis for their official action, and

to exercise discretion of a judicial nature.” Id. at

1411. Mr. Allen in his solicitation of defendant’s

letter was acting for and on behalf of the Internal

Revenue Service in a government matter. He was

in the process of evaluating plaintiff in connection

with her employment. The agency had decided to

Be

12

terminate plaintiff’s employment, and Mr. Allen was

preparing an evidentiary file to support the termi-

nation decision. The proceedings was quasi-judicial

in nature, and defendant’s communications were ab-

solutely privileged.

Angel, 43 N.C. App. at 293-94, 258 S.E.2d at 792. The

Court of Appeals concluded that “[a]lthough the Inter-

nal Revenue Service administrative procedure for termi-

nation or promotion of an employee is quasi-judicial, the

quantum of the privilege is the same—an absolute one.”

Angel, 43 N.C. App. at 294, 258 S.E.2d at 792.

The functions being performed by President-Elect Rea-

gan (later President Reagan) and his transition team

after the general election of 1980 were identical or at

least analogous to the functions determined by the North

Carolina Court of Appeals in Angel v. Ward to consti-

tute “quasi-judicial functions”. Under federal statute,

President Reagan was required to appoint (by and with

the advice and consent of the Senate) a United States

Attorney for each judicial district. See 28 U.S.C. Sec-

tion 541 (a) (1982). Both the President and his transi-

tion team were “required to investigate facts, or ascer-

tain the existence of facts, and draw conclusions from

them, as basis for their official action, and to exercise

discretion of a judicial nature,” Angel v. Ward, 43 N.C.

App. 293, 258 S.E.2d at 792.

Moreover, there is the unchallenged testimony of Mc-

Donald that the impetus for his communication was the

televised speech of the President-Elect soliciting infor-

mation and cooperation from American citizens. Misin-

terpreted or not, McDonald construed Mr. Reagan’s re-

marks as a call for or solicitation to enable it to better

serve the public (which included the appointment of

competent, qualified federal prosecutors). See Angel v.

Ward and Holmes v. Eddy, supra. Accordingly, the Re-

13

spondent was participating in what was, in essence, the

initial stage of a quasi-judicial proceeding.

In attempting to distinguish the controlling cases of

Angel v. Ward and Holmes v. Eddy, supra, Smith as-

serts that appointing United States Attorneys is not

quasi-judicial. As the Fourth Circuit pointed out, such

an assertion is hardly persuasive in light of the fact that

a nominee for United States Attorney is subjected to a

comprehensive FBI and IRS background investigation

and, as part of the statutory scheme, is expected to offer

sworn testimony before the Senate Judiciary Committee

(as well as to respond to specific questions from Com-

mittee members) regarding his qualifications, his prose-

cutorial philosophy, his personal life and conduct and the

like. If Angel v. Ward and Holmes v. Eddy involved

quasi-judicial proceedings, as the North Carolina Court

of Appeals and the Fourth Circuit both concluded, then

surely McDonald was also participating in a quasi-

judicial matter when he communicated with President

Reagan concerning Smith’s lack of qualifications to be

United States Attorney.°®

In conclusion, this Court has long recognized that a

State may indeed provide more expansive civil liberties

than those found in or conferred by the Federal Consti-

tution. PruneYard Shopping Center v. Robins, supra,

citing Cooper v. California, 386 U.S. 58 (1967). Thus,

* Smith argues that the law of the case prohibits further judicial

examination of the question as to whether McDonald’s communica-

tions were enveloped with absolute privilege. McDonald concedes that

his argument on this question had been previously made and rejected

by the District Court but respectfully submits that the previous

ruling should have been and was reconsidered because the trial court

did not have, at that preliminary stage of the proceedings in 1982,

the benefit of his testimony regarding the impetus for his communi-

cations (i.e., President Reagan’s televised speech). Hence, the doc-

trine of law of the case was and is no bar to reconsideration. Diaz

v. Indian Head, Inc., 686 F.2d 558, 562-63 (7th Cir. 1982): 18

C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure

Section 478 (1981).

14

although the Petition Clause furnished no protection to

the Respondent, there is no constitutional bar to the

North Carolina common law according him absolute priv-

ilege of communication in the context of the case at bar.

In addition, the possibility that this Court might have

arrived at a different conclusion in Angel v. Ward and

Holmes.v. Eddy than did the North Carolina Court of

Appeals and the Fourth Circuit is insufficient reason to

grant discretionary review.

CONCLUSION

For the reasons stated above, a writ of certiorari

should be denied. Respondent respectfully requests an

award of his attorney’s fees and costs expended herein

under the provisions of Sup. Ct. R. 49.2 on the ground

that the Petition for Writ of Certiorari is frivolous.

Under the authority of footnote 3 of this Court’s decision

in 1985, 472 U.S. 482 (1985) Respondent also respect-

fully requests an Order directing reimbursement of all

costs and attorney’s fees expended by him in the defense

of this action.

Respectfully submitted,

WILLIAM WOODWARD WEBB

BROUGHTON, WILKINS

& WEBB, P.A.

P.O. Box 2387

Raleigh, NC 27602

(919) 838-2752

Counsel for Respondent