Opposition Brief — Metzger v. Berhanu

| BOpreme Court, We

e FILED

% |

r} APR 28 1994

No. 93-1470 OFFICE OF THE CLERK |

IN THE

Suprene Court of the United States

OCTOBER TERM, 1993

TomM METZGER, JOHN METZGER, AND

WHITE ARYAN RESISTANCE,

. Petitioners,

ENGEDAW BERHANU, PERSONAL REPRESENTATIVE

OF THE ESTATE OF MULUGETA SERAW,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of the State of Oregon

BRIEF IN OPPOSITION

Of Counsel

ELDEN M. ROSENTHAL

ROSENTHAL & GREENE, P.C.

1907 Security Pacific Plaza

1001 S.W. Fifth Avenue

Portland, OR 97204

(503) 228-3015

JEFFREY SINENSKY

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, NY 10017

(212) 490-2525

Morris S. DEEs, JR.

J. RICHARD COHEN *

SOUTHERN POVERTY

LAW CENTER

P.O. Box 2087

Montgomery, AL 36102

(205) 264-0286

THOMAS F. URBAN II

725 12th Street, N.W.

Washington, D.C. 20005

(202) 434-5000

Attorneys for Respondent

* Counsel of Record

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASnINGTON OC 20001

QUESTION PRESENTED

Whether the decision of the Court of Appeals of |

Oregon was based upon independent and adequate state

grounds when it determined that petitioners had waived

certain First Amendment objections in a wrongful death

case?

(i)

eT

TABLE OF CONTENTS

Page

QUESTION PRESENTED 0000.0. ccecccccccccccccecseeseeeees i

ABER OF AUITHORITING qq... .-.n.ccccecescccceoceeceecseseeeeess. iv

STATEMENT OF THE CASE 000i... cccccoceececeseceee 1

TT

B. Procedural Background... 4

REASONS FOR DENYING THE WRIT ............... 9

I. THIS COURT HAS NO JURISDICTION TO

REVIEW THE DECISION OF THE COURT

OF APPEALS OF OREGON WHICH WAS

BASED ON INDEPENDENT AND ADE-

QUATE STATE GROUNDS ...00000 eee 10

Il. NOTWITHSTANDING THIS LACK OF JU-

RISDICTION, THE CONSIDERATIONS THAT

USUALLY SUPPORT CERTIORARI ARE

CE 12

A. The Oregon Court of Appeals Decision Does

Not Conflict With Any Decision of This

SNES Se ee 12

B. The Oregon Court of Appeals Decision Does

Not Raise Any Question of Federal Law

That Is Unsettled by This Court ............ 13

EE a 15

I EEE EE ee eae la

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Federal Cases

Barr v. City of Columbia, 378 U.S. 146 (1964)...... 11

Brandenburg v. Ohio, 395 U.S. 444 (1969) 0.0.0.0... 6,14

Colorado v. Spring, 479 U.S. 564 (1987) ......0000---.0... 12

Curtis Publishing Co. v. Butts, 388 U.S. 130

CITED -vcsiatiseteeinchideebitaitenstiddsscndecndemndiia mattis iced sic eis 12, 13

Edelman v. California, 344 U.S. 357 (1953) —......... 11

Ford v. Georgia, 498 U.S. 411 (1991) 0000 .. 10, 11

Fox Film Corp. v. Muller, 296 U.S. 207 (1935)...... 10

Herb v. Pitcairn, 324 U.S. 117 (1945) .......000000000. 10

Michigan v. Long, 463 U.S. 1032 (1983) ......0000000.. 10

Michigan v. Tyler, 436 U.S. 499 (1978) ......0000-0000... 11

Miranda v. Arizona, 384 U.S. 436 (1966) _....0000000.. 12

N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S.

I IE -saccesidsetecninitetdecientlidddandatbbtaciprudiisicssedtledaiatlen 11

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.

I i 7, 8,14

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

a a 13

Noto v. United States, 367 U.S. 290 (1961) ............ 7,14

Webb v. Webb, 451 U.S. 493 (1981) -....000 10, 11

Wood v. Chesborough, 228 U.S. 672 (1913) ............ 10

State Cases

Berhanu v. Metzger, 850 P.2d 373 (Or. App. 1993).. 8,9

Byers v. Santiam Ford, Inc., 574 P.2d 1122 (Or.

RNY Av Set A TR PAOD ALE Pah yak Pa 5 Ik SS 9

State v. Brown, 800 P.2d 259 (Or. 1990) _.......... 10

State v. Hitz, 766 P.2d 373 (Or. 1988) _.......... 10

Utility Equipment, Inc. v. Morbark Industries, Inc.,

763 P.2d 164 (Or. App. 1988), aff’d, 779 P.2d

ER RE OW EAE ts SSN CRA ES CaO 8

MISCELLANEOUS

Oregon Revised Statutes § 30.020... 4

Oregon Rule of Appellate Procedure 5.45 0.0... 10, 11

Oregon Rule of Civil Procedure 59(H) .............00... x

Rules of the Supreme Court of the United States

I aa a 12

Rules of the Supreme Court of the United States

= RT A CIO Si, RI Ne OR. See Ce 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1470

TOM METZGER, JOHN METZGER, AND

WHITE ARYAN RESISTANCE,

“ Petitioners,

ENGEDAW BERHANU, PERSONAL REPRESENTATIVE

OF THE ESTATE OF MULUGETA SERAW,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of the State of Oregon

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This wrongful death action stemmed from the brutal

murder of Mulugeta Seraw in Portland, Oregon on No-

vember 13, 1988. Five defendants were originally named

in this lawsuit—two from Oregon and three from Cali-

fornia.

The two Oregon defendants—Kenneth Mieske and Kyle

Brewster—were alleged to have carried out the actual

killing. The California defendants (petitioners here)—

Tom Metzger, John Metzger, and the White Aryan Re-

sistance (WAR)—were alleged to be vicariously liable

for the slaying under three theories. First, plaintiff

claimed that the California defendants—through the vice

president of their WAR youth organization—had sub-

stantially assisted in and encouraged the conduct of the

2

Oregon defendants that caused Seraw’s death. Second,

plaintiff claimed that the California defendants and the

Oregon defendants had engaged in a conspiracy to com-

mit acts of racial violence and that Seraw had been killed

pursuant to the conspiracy. Third, plaintiff claimed that

Seraw’s death was caused by the California defendants’

recklessness in selecting an agent to send to Portland to

organize the Oregon defendants’ skinhead gang.’

A. Factual Background 2

White Aryan Resistance (“WAR”) is a white racist

organization that advocates racial violence against Afri-

can-Americans, Hispanic-Americans, and Jews. Exs. 68,

75. Petitioner Tom Metzger is the director of WAR.

His son, petitioner John Metzger, heads WAR Youth, the

“youth section” of WAR. Ex. 8. Prior to Seraw’s mur-

der, the Metzgers, through the youth wing of WAR,

sought to encourage violent racist attacks by skinheads.

Ex. 53 at 1. In an effort to expand the WAR organiza-

tion, the Metzgers dispatched their best organizer, David

Mazzella, the vice-president of WAR Youth, Ex. 53 at 3;

Tr. 155, 434, to Portland, Oregon to establish a working

relationship with one of the Portland skinhead groups,

East Side White Pride (ESWP). Tr. 422, 578-79; Ex. 1

(J. Metzger letter to ESWP introducing Mazzella).

From the time he arrived in Portland in the beginning

of October 1988 until Seraw’s murder five weeks later,

Mazzella spent most of his time “getting [ESWP mem-

bers] together and teaching them violence” by “taking

them out” to commit violent acts against minorities and

by “preaching.” Tr. 488. Through his efforts, Mazzella

1 Hereinafter, the first theory for liability will be referred to as

the “substantial assistance” claim, the second as the “conspiracy”

claim, and the third as the “reckless selection of an agent” claim.

2 Respondent is obliged to submit this factual background due

to the numerous inaccuracies and omissions contained in petitioners’

statement. Sup. Ct. R. 15.1.

a i

3

transformed ESWP from a “sloppily organized group”

into one that had “something to focus on.” Tr. 488-89.

On several occasions, Mazzella led the members of ESWP

on “hunting parties” to seek out minorities and provoke

fights. Tr. 429-35, 654-56. As Mazzella explained, “the

best way to really talk [to skinheads] about violence is to

show them the violence.” Tr. 435. In one letter, Mazzella

bragged that “ESWP [had] . . . beaten up 80 people in

4 days.” Ex. 145.

With the Metzgers’ approval, Mazzella had used vio-

lence before to organize skinheads for WAR. Tr. 431-

35. While he was repeating the pattern in Portland,

Mazzella kept in close contact with the Metzgers. Tr.

488-89. Tom Metzger clearly approved of Mazzella’s

Portland activities on behalf of WAR Youth. In a re-

corded message broadcast shortly before Seraw’s murder,

Metzger boasted that “the fights and attacks against the

race-mixers and some of the race traitors and the racial

scum [in Portland], has been picking up because of the

new warriors moving into the area.” Ex. 86 at 1.

Mazzella spent much of the day of Seraw’s murder

with the members of ESWP, including the Oregon de-

fendants. In the morning, Mazzella held a meeting, dur-

ing which they discussed sporadic, random acts of vio-

lence against minorities. Tr. 445-46. As Mazzella later

testified, “every time the group would go to a low, when

there wasn’t really much publicity, we would commit acts

of violence.” Id. (emphasis added). That evening, after

distributing WAR material in downtown Portland, Maz-

zella and several ESWP mmbers met to discuss “the

movement.” Tr. 611. During the discussion, one ESWP

member drew a picture in Mazzella’s WAR notebook of

a black man with a bullet being shot through his head.

Tr. 610-11, 760-61; Ex. 138.

As the Oregon defendants were leaving the meeting,

they spotted Mulugeta Seraw* and two of his Ethiopian

3 Seraw was a twenty-eight year old Ethiopian national. Born to

a farming family, he had come to Portland to go to college. Tr.

4

friends. Tr. 373. Just as Mazzella had trained them to

provoke minorities on numerous occasions, the ESWP

members tried to irritate Seraw and his companions. Tr.

249-50. They attacked the three Ethiopian men, and with

repeated blows to the head with a baseball bat, Mieske

crushed Seraw’s skull. Tr. 359-60, 378; Ex. 163.

Within hours, Mieske and other ESWP members told

Mazzella about the killing. Tr. 453-54. The next day,

Mazzella reported the incident to Tom Metzger. Tr. 455-

56. Metzger told Mazzella to keep his “mouth shut,” ad-

vice that Mazzella shared with ESWP. Tr. 456-57. When

Mieske was arrested, he immediately called Tom Metzger

in San Diego. Tr. 181, 1007. In acordance with his

standard operating procedure, Metzger advised Mieske

to take the Fifth. Tr. 181, 269.

In an interview conducted just three weeks after the

murder, John Metzger boasted that Mazzella, whom he

identified as his vice-president, had successfully organized

Portland skinheads for the Metzgers’ WAR organization.

Metzger emphasized that “skinheads these days are dead-

lier than the skinheads of just two years ago,” and offered

to “send Mazzella or another organizer to Seattle to try

to repeat the success in Portland.” Ex. 139, 139A.

B. Procedural Background

On November 27, 1989, the personal representative of

Mulugeta Seraw’s estate filed a wrongful death action in

the Mulnomah County (Oregon) Circuit Court, pursuant

to Oregon Revised Statutes § 30.020, against Mieske,

Brewster, and the petitioners herein—Tom Metzger, John

Metzger, and WAR.

Although petitioners retained counsel on appeal, they

represented themselves in the trial court. Petitioners

1235, 1239. He was a small man, standing only five feet seven

inches and weighing about 135 pounds. Tr. 1181. He was known

as a quiet and friendly person. Tr. 1214, 1243.

5

claim that they were forced to proceed without counsel

because respondents had frozen their real property in a

California state court action.‘ Petition at 8. But peti-

tioners fail to disclose that the California case was not

filed until six months after this case began. At no time

during the intervening months did petitioner choose to

hire a lawyer despite their substantial financial resources °

and the obvious risks posed by this litigation. Further-

more, at no time after the filing of the California action—

an action prompted by Tom Metzger’s attempt to fraud-

ulently convey his property—did Metzger ask the Cali-

fornia court for permission to use the real property to

hire a lawyer.

In any event, petitioners were given abundant assist-

ance in litigating their case. The trial judge instructed

petitioners every step of the way regarding procedural

* Shortly after the commencement of this suit, petitioner Tom

Metzger transferred real property in California worth over $90,000

to his wife by quitclaim deed for no consideration. Respondent

filed an action on May 11, 1990 in San Diego County Superior

Court seeking to set aside this transfer, asserting that the transfer

had been made to shelter Metzger’s assets from a potential judg-

ment in the Oregon action and any other creditors. Appendix at

2a-4a. The San Diego County complaint also sought to have Metzger

restrained from transferring or disposing of this property until

the Oregon trial. Jd. at 4a-5a. After a temporary restraining order

was issued against them, 6a-7a, Metzger and his wife entered into a

stipulation agreeing not to transfer this property until sixty days

after the Oregon trial ended. Appendix at 8a-13a.

* During the trial, financial records pertaining to petitioners Tom

Metzger and WAR were introduced into evidence. Metzger had

two bank accounts, one for WAR and the other for his business,

Fallbrook TV. Tr. 1093-94. These records established that, during

1989, deposits into WAR’s bank account alone averaged approxi-

mately $3000.00 per month. Pls. Ex. 105 at 2. Although John

Metzger testified at trial that approximately seventy percent of

WAR’s income was received in cash, Tr. 918, the cash deposits into

the WAR account amounted to only fourteen percent of the total

deposits. Pls. Ex. 105 at 3.

6

issues. For example, prior to charging the jury, the court

explained to petitioners the necessity of objecting to any

instructions with which they disagreed. As the court told

petitioners,

what you should do is go through the requested in-

structions and determine whether there are any in-

structions you object to? [sic] If you have objections

to their [plaintiff's] proposed instructions, you must

be able to state your objections for the record so that

I can determine whether or not to sustain or over-

rule your objections to the proposed instruction.

The court later told petitioners that they would have to

take an exception to the court’s rulings on jury instruc-

tions in order to preserve an issue for appeal.

In addition, the trial judge allowed the Oregon chapter

of the American Civil Liberties Union (ACLU) to brief

the First Amendment issues raised by the case as a friend

of the court. At the oral argument of these issues, the

ACLU informed the court that it had no First Amend-

ment concerns about either of the intentional misconduct

counts—substantial assistance and conspiracy. Tr. 1281.

The ACLU directed all of its concerns to the “reckless

selection of an agent” claim. /d.

Petitioners joined this objection to the “reckless selec-

tion” claim, citing Brandenburg v. Ohio, 395 U.S. 444

(1969). Tr. 1296-99. In denying this objection, the

trial court clearly stated that it was interpreting petition-

ers’ objection as being solely on this claim. Tr. 1299-

1300. Petitioners did not make any attempt to correct

the trial court’s understanding of their objection. /d. at

1300. After the trial court denied petitioners’ motion to

dismiss the “reckless selection” claim, petitioner Tom

Metzger stated that

I would just like to make a motion to dismiss the en-

tire case. They haven’t proved it. They haven't

7

proved their case. They certainly haven’t proved

intent.

Id. at 1302. The trial court similarly denied this motion.

Id. at 1303.

The trial court included several jury charges to ensure

that petitioners would not be held liable for speech or

action that was protected under the First Amendment.

Before the Oregon jury adjourned to consider the evi-

dence, the trial court instructed the jury that

[t]he right of free speech protects a person’s right to

express political or social ideas. It even protects a

person’s right to advocate the abstract need for vio-

lence sometime in the indefinite future.

But the right of free speech is not absolute. /t does

not allow a person to prepare a group for violent ac-

tion and spur it on to such action in the immediate

or near future.

I instruct you that if you find by a preponderance

of the evidence that John Metzger, Tom Metzger or

WAR, through an agent, prepared Kenneth Mieske

or Kyle Brewster for violent action and spurred them

on to such action in the immediate or near future,

the free speech defense fails.

Jury Charge Number 31 (emphasis added). This instruc-

tion was patterned after the standard set forth in Noto v.

United States, 367 U.S. 290, 297-98 (1961), which was

reaffirmed as recently as 1982. N.A.A.C.P. v. Claiborne

Hardware Co., 458 U.S. 886, 928 (1982). Petitioners

failed to object to this instruction, even though they were

given opportunities to do so both when the instruction

was discussed and later at the end of the discussion re-

garding all instructions. When the trial court asked

whether petitioners had “[{a]ny problems with Plaintiff's

8

Number 31,” petitioner Tom Metzger explicitly stated

that they did not.”

The court further charged the jury that they

must be careful not to base your decision about the

responsibility of Tom Metzger, John Metzger, or

WAR in any way on the fact that they may have

expressed views that are unpopular. The First

Amendment guarantees every person the right to ex-

press his views freely, even if those views may be

morally repugnant to the rest of the commuuaity. But,

the First Amendment does not prevent you from

looking at the words of the Metzgers and WAR as

evidence of what they may have done or what they

may have instructed other people to do.

Jury Charge Number 39 (emphasis added.) This instruc-

tion was based directly on language in Claiborne Hard-

ware, 458 U.S. at 927. Petitioners’ objection to this in-

struction was overruled.

The jury found petitioners liable for the wrongful death

of Seraw on three separate theories: |) that petitioners,

through their agents, substantially assisted in, or encour-

aged, the conduct which caused the death of Seraw; 2

that petitioners were involved in a conspiracy that led to

Seraw’s death; and 3) that petitioners caused the death

of Seraw by recklessly selecting or retaining agents to

organize the racist skinhead organization. The jury

awarded respondent one set of damages based on the

three verdicts, and the trial court entered judgment in

accordance with the jury’s verdict, with slight modifica-

tions.

* Petitioners’ failure to object to this instruction waived any

assertion of error based on the instruction under Oregon procedure.

Oregon Rule of Civil Procedure 59(H) (“no instruction given to a

jury shall be subject to review on appeal unless its error, if any,

was pointed out to the judge who gave it and unless a notation of

an exception is made immediately after the court instructs the

jury”); see Berhanu v. Metzger, 850 P.2d 373, 374 (Or. App.

1993); Utility Equipment, Inc. v. Morbark Industries, Inc., 763

P.2d 164, 169 n.5 (Or. App. 1988), aff'd, 779 P.2d 139 (Or. 1989).

9

The Court of Appeals of the State of Oregon affirmed

the judgment against petitioners. Berhanu v. Metzger,

119 Or. App. 175, 850 P.2d 373 (1993). In response

to their First Amendment assignment of error, the court

determined that petitioners had failed to preserve any

First Amendment objection to the substantial assistance

and conspiracy claims. The court based this determina-

tion on its review of the record and the fact that the trial

court, without objection, specifically ruled only on peti-

tioners’ First Amendment objection to the reckless selec-

tion of an agent claim. 850 P.2d at 375. Pursuant to

Oregon law, the court held that it could not provide peti-

tioners any relief because “even if [the court] were to

agree with [petitioners] that the recklessness claim is

barred by constitutional considerations, the trial court's

judgment would nonetheless stand because of the verdict

on the two other theories of liability.” /d. at 375-76."

The Oregon Supreme Court denied petitioners’ request

to review the decision of the Court of Appeals. 865 P.2d

1296 (Or. 1993).

REASONS FOR DENYING THE WRIT

Petitioners concede that they failed to raise specific

First Amendment objections to either theory of intentional

misconduct. Petition at 9. Nonetheless, petitioners seek

to have this Court review the state procedural grounds

for the decision of the Oregon Court of Appeals and re-

mand this case to that court to consider their waived First

Amendment defenses. Petition at 15.

Respondents respectfully submit that this Court should

not grant certiorari to review the decision of the Court

of Appeals of Oregon because: (1) the decision was

based upon independent and adequate state grounds; and

7 The Oregon Court of Appeals, in applying this rule, was follow-

ing established Oregon precedent that when a special verdict form

is used, as here, the submission of an erroneous theory of liability

does not warrant reversal if the verdict also is supported by a

second theory not similarly flawed. See Byers v. Santiam Ford,

Inc., 574 P.2d 1122, 1124 (Or. 1978).

10

(2) even if this Court did have jurisdiction to review this

decision, the issues raised by petitioner are not be suit-

able for granting certiorari because the decision does not

conflict with any decision of this Court or raise any

question of federal law that is unsettled by this Court.

I. THIS COURT HAS NO JURISDICTION TO REVIEW

THE DECISION OF THE COURT OF APPEALS OF

OREGON WHICH WAS BASED ON INDEPENDENT

AND ADEQUATE STATE GROUNDS

The Oregon Court of Appeals based its decision on its

interpretation and application of Oregon Rule of Appel-

late Procedure 5.45." This Court has long recognized that

it is without jurisdiction to review the decision of a state

court when the state court's decision is based on an ade-

quate state ground that is independent of any federal

basis. Michigan v. Long, 463 U.S. 1032, 1038 n.4

(1983); Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945);

Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935);

Wood v. Chesborough, 228 U.S. 672, 677 (1913). “Re-

spect for the independence of state courts, as well as avoid-

ance of rendering advisory opinions, have been the cor-

nerstones of this Court’s refusal to decide cases where

there is an adequate and independent state ground.”

Michigan v. Long, 463 U.S. at 1040.

Noncompliance with a state procedural rule, such as

the failure to object in a timely manner or raise an issue

in the trial court, provides such an adequate state ground.

Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Webb

8 This rule provides that

[n]o matter assigned as error will be considered on appeal

unless it was preserved in the lower court...

O.R.A.P. 5.45(2). The only exception to this rule recognized under

Oregon procedure exists for “errors of law apparent on the face

of the record.” Jd. The rationale for this requirement that a claim

be presented to the trial court is “to allow the adversary to present

his position and to permit the court to understand and correct any

error.” State v. Brown, 800 P.2d 259, 265 (Or. 1990); State v.

Hitz, 766 P.2d 373 (Or. 1988).

SSS eT

11

v. Webb, 451 U.S. 493, 496-97 (1981) (“the jurisdiction

of this Court to re-cxamine the final judgment of a state

court can arise only if the record as a whole shows...

that the federal claim was adequately presented in the

state system”); Edelman v. California, 344 U.S. 357,

358-59 (1953). To provide a federal ground for deci-

sion, even Federal constitutional rights must be presented

to state courts in accordance with the requirements of

general state procedure. As this Court stated in Ford v.

Georgia, “a ‘firmly established and regularly followed state

practice’ may be interposed to prevent subsequent review

by this Court of a federal constitutional claim.” 498

U.S. at 424 (citation omitted).” So long as the state

court applies its procedure in a consistent manner,” “pow-

erful policy considerations . . . strongly indicate that [this

Court] should apply this principle with sufficient rigor to

make reasonable certainty that [the Court] entertainfs]

cases from state courts only where the record clearly shows

that the federal issue has been properly raised below.”

Webb, 451 U.S. at 499.

The decision of the Court of Appeals of Oregon affirm-

ing the trial court and rejecting petitioners’ First Amend-

ment contentions was based on its application and inter-

pretation of an Oregon procedural rule. Because this de-

termination was based upon an independent and adequate

state procedural ground, this Court does not have juris-

* See Michigan v. Tyler, 436 U.S. 499, 512 n.7 (1978) (“[flailure

to present a federal question in conformance with state procedures

constitutes an adequate and independent ground of decision barring

review in this Court, so long as the State has a legitimate interest

in enforcing its procedural rule”); Edelman, 344 U.S. at 358-59

(“this Court is without power to decide whether constitutional

rights have been violated when the federal questions are not sea-

sonably raised in accordance with the requirements of state law.”).

1 Petitioners have raised no issue that O.R.A.P. 5.45 has not

been consistently applied to all litigants by the courts of Oregon.

See Barr v. City of Columbia, 378 U.S. 146, 149-150 (1964);

N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288, 293-302

(1964). Nor would any such argument have merit.

12

diction to review the decision of the Court of Appeals

of Oregon.

II. NOTWITHSTANDING THIS LACK OF JURISDIC-

TION, THE CONSIDERATIONS THAT USUALLY

SUPPORT CERTIORARI ARE ABSENT HERE

Even if this Court were to determine that the decision

of the Court of Appeals of Oregon did not rest on inde-

pendent and adequate state grounds and therefore this

Court had jurisdiction to consider petitioners’ contentions,

the petition would not be suitable for certiorari. Review

on writ of certiorari is not a matter of right, but of judi-

cial discretion. Rules of the Supreme Court of the United

States 10. This Court will exercise the discretion to grant

the writ in a case such as this only when the matter in-

volves 1) a decision that conflicts with a decision of this

Court, or 2) an important question of federal law, un-

settled by this Court. /d. at 10.1(c). In the present

action, no such issue exists.

A. The Oregon Court of Appeals Decision Does Not

Conflict With Any Decision of This Court

Petitioners contend that a First Amendment right may

only be relinquished by a civil defendant by means of a

“knowingly, intelligently and voluntarily” waiver of those

rights. Petition at 17. The “knowing, intelligent and

voluntary” standard asserted by petitioners, however, has

been applied by this Court only to the waiver of constitu-

tional protections by criminal defendants. See, e.g.,

Colorado v. Spring, 479 U.S. 564 (1987); Miranda v.

Arizona, 384 U.S. 436 (1966). Petitioners assert that

the decision of the Oregon Court of Appeals conflicts

with this Court’s decision in Curtis Publishing Co. v.

Butts, 388 U.S. 130 (1967). Petition at i (Question

Presented), 17. However, as this Court noted in Curtis

Publishing, a “known right or privilege”, even involving

federal constitutional grounds, may be _ procedurally

waived during a civil trial by not properly raising it. /d.

at 143.

———————aa nn.

13

In Curtis Publishing, this Court invoked an exception

to the general rule regarding procedural waiver for situa-

tions in which a party failed to “interpose [a constitutional ]

defense prior to the announcement of a decision which

might support it.” Jd. at 143. The petitioner in Curtis

Publishing had been found responsible by a jury for the

libel of a public figure just prior to this Court's decision

in New York Times Co. v. Sullivan, 376 U.S. 254

(1964). Although petitioner had not asserted a Times

defense during trial, petitioner filed a motion for new trial

in the trial court immediately after the Times decision

was rendered. While this Court acknowledged that “even

constitutional objections may be waived by a failure to

raise them at a proper time,” it held that petitioner had

not waived his Times defense because the defense was not

a “known right or privilege” at the time that petitioner

was tried. 388 U.S. at 143. In the present action, all

rights or privileges now asserted by petitioners were

known and firmly established, as there were no new de-

cisions at issue.

B. The Oregon Court of Appeals Decision Does Not

Raise Any Question of Federal Law That Is Un-

settled by This Court

Petitioners do not seek an adjudication of their federal

First Amendment rights, but merely request this Court

to remand this case to the Court of Appeals of Oregon

to consider their First Amendment objections to the in-

tentional misconduct claims. Petition at 15. To do

so, this Court must hold that even if a party does not

comply with State procedural rules, a party cannot in-

advertently waive a First Amendivent objection. Even if

the Court were willing to consider such a rule, this case

would be an inappropriate one in which to do so because

petitioners’ failure to assert a First Amendment defense to

the two intentional misconduct claims was knowing and

intelligent.

heal

14

During the proceedings before the trial court, petition-

ers were aware of all of the rights that are now the basis

of their petition and each of these asserted rights was

well-established at the time it properly would have been

asserted. The First Amendment defense now relied upon

by petitioner to challenge all three bases of liability before

this Court was argued before the trial court to challenge

only the “reckless selection” count. It is clear that peti-

tioners only presented a First Amendment objection to

the reckless selection claim because their objection was

based upon the amicus argument of the ACLU. See supra

at 6. The ACLU indicated that it had no First Amend-

ment conceras regarding the intentional misconduct

claims. Petitioner, being fully aware of this argument at

the time of trial, had a duty under Oregon procedure to

explicitly object to the substantial assistance and conspiracy

counts on First Amendment grounds at the appropriate

time.”

To the extent that any First Amendment rights were impli-

cated, they were properly addressed and protected by the trial! court.

The First Amendment protects “the mere abstract teaching .. .

of the moral propriety or even moral necessity for a resort to

force and violence.” Brandenburg, 395 U.S. at 448 (quoting Noto,

367 U.S. at 297-98); see Claiborne Hardware, 458 U.S. at 928. But

it does not protect speech or actions of an individual “preparing a

group for violent action or steeling it to such action.” Noto, 367

U.S. at 298; cited with approval in Claiborne Hardware, 458

U.S. at 928; Brandenburg, 395 U.S. at 448.

This Court has recognized that a “State legitimately may impose

damages for the consequences of violent conduct.” Claiborne Hard-

ware, 458 U.S. at 918. Furthermore, an organization “may be held

responsible for the acts of its agents throughout the country that are

undertaken within the scope of their actual or apparent authority.”

Id. at 930. The trial court gave an instruction patterned after

Noto, and the evidence established that petitioners had in fact

“prepar(ed] a group for violent action” and “steel[ed] it to such

action.”

15

CONCLUSION

For the foregoing reasons the writ should be denied.

Of Counsel

ELDEN M. ROSENTHAL

ROSENTHAL & GREENE, P.C.

1907 Security Pacific Plaza

1001 S.W. Fifth Avenue

Portland, OR 97204

(503) 228-3015

JEFFREY SINENSKY

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, NY 10017

(212) 490-2525

Dated: April 28, 1994

Respectfully submitted,

Morris S. DEEs, JR.

J. RICHARD COHEN *

SOUTHERN POVERTY

LAW CENTER

P.O. Box 2087

Montgomery, AL 36102

(205) 264-0286

THOMAS F. URBAN II

725 12th Street, N.W.

Washington, D.C. 20005

(202) 434-5000

Attorneys for Respondent

* Counsel of Record

APPENDIX

la

APPENDIX

[Filed May 11, 1990]

SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE

COUNTY OF SAN DIEGO

Case No. 624088

ENGEDAW BERHANU, Personal Representative of the

Estate of MULEGETA SERAW, Deceased,

‘ Plaintiff,

Tom MEtTzGerR, KATHLEEN METZGER,

and Dogs I through X, Inclusive,

she Defendants.

oe COMPLAINT TO SET ASIDE FRAUDULENT

Sf TRANSFER AND FOR DAMAGES

[CC § 3439.01, et seq.]

Plaintiff alleges:

FIRST CAUSE OF ACTION

(TO SET ASIDE FRAUDULENT TRANSFER)

1. Defendants are, and at all times herein mentioned

were, residents of San Diego County, California and have

been husband and wife, cohabitating at 308 Sunbeam

lane, Fallbrook, California for over twenty years.

i 2. Plaintiff is ignorant of the true names and Capacities

9 of defendants sued herein as DOES I through X, inclu-

‘i sive, and therefore sues these defendants by such fictitious

# names. Plaintiff will amend this complaint to allege their

ei true names and capacities when ascertained. Plaintiff is

2a

informed and believes and thereon alleges that each of

the fictitiously named defendants claims an interest in the

property hereinafter described and which is the subject of

this action.

3. From and after November 13, 1988 the Estate of

Mulgeta Seraw has been the holder of a certain claim

against Defendant TOM METZGER. This claim con-

sists of a tort cause of action for wrongful death and

punitive damages.

4. On November 27, 1989, an action was commenced

by Plaintiff against Defendant TOM METZGER based

on the aforementioned claim. No judgment in that action

has yet been rendered. This matter is set for trial on

October 8, 1990 in Multnomah County, Oregon.

5. At all times herein mentioned, Defendants TOM

METZGER and KATHLEEN METZGER as joint

tenants, were the owners and in possession and control

of that real property situated in San Diego County, known

as 308 Sunbeam Lane, Fallbrook, California and more

particularly described as follows:

The North 77.50 feet of the South 495 feet of the

East 128 feet of the West 328 feet of the Northeast

Quarter of Section 25, Township 9 South Range 4

West, San Bernardino Base and Meridian, in the

County of San Diego, State of California.

6. Plaintiff is informed and believes and thereon al-

leges that on or about January 2, 1990, Defendant TOM

METZGER transferred by quitclaim deed the above-

described property to Defendant KATHLEEN METZ-

GER. On February 8, 1990, transfer of said real prop-

erty was recorded as Document No. 90 072119, Image

No. 51, Official Records in the Office of the County

Recorder of San Diego County, California.

7. Plaintiff is informed and believes and thereon al-

leges that the transfer was made with en actual intent to

3a

hinder, delay, or defraud Defendant TOM METZGER’s

creditors, including Plaintiff in the collection of his claims.

8. In exchange for the aforementioned transfer, De-

fendant TOM METZGER received nothing. At the time

the transfer was made, the value of equity in the real prop-

erty transferred was not less than $90,000.00. Thus, the

Defendant TOM METZGER did not receive reasonably

equivalent value in exchange for the real property.

9. Plaintiff is informed and believes and thereon al-

leges that the above-described property was received by

Defendant KATHLEEN METZGER with knowledge that

Defendant TOM METZGER intended to hinder, delay,

or defraud the collection of Plaintiff's aforementioned

claim. Defendant KATHLEEN METZGER had such

knowledge by virtue of her confidential relationship with

Co-Defendant TOM METZGER, her husband.

SECOND CAUSE OF ACTION

(CONSPIRACY )

10. Plaintiff refers to and incorporates herein Para-

graphs | through 9, inclusive, of the First Cause of Ac-

tion.

11. As alleged above, in or about January, 1990,

Defendants TOM METZGER and KATHLEEN METZ-

GER agreed and knowingly and willfully conspired be-

tween themselves to hinder, delay and defraud Plaintiff in

the collection of his claim against Defendant TOM

METZGER.

12. Under this conspiracy, the above-named Defend-

ants agreed to transfer their property held in joint tenancy

as husband and wife, to wife alone so that any judgment

against Defendant husband could not be collected. This

asset is the only substantial asset of Defendant TOM

METZGER, leaving him insolvent in the face of Plain-

tiff's judgment. Defendant transferred his only substantial

4a

assets within three weeks of being served with Plaintiff's

complaint in the wrongful death action.

13. Defendants TOM METZGER and KATHLEEN

METZGER did the acts and things herein alleged pur-

suant to, and in furtherance of, the conspiracy and agree-

ment alleged above.

14. As a proximate result of the wrongful acts herein

alleged, Plaintiff has suffered general damages and puni-

tive damages should be awarded in an amount in excess

of the jurisdictional minimum of this court.

15. At all times mentioned herein, Defendants KATH-

LEEN METZGER and TOM METZGER knew of Plain-

tiffs claim against TOM METZGER and knew that

Plaintiff's claim could only be satisfied out of the real

property transferred by TOM METZGER. Notwithstand-

ing this knowledge, Defendants KATHLEEN METZGER

and TOM METZGER intentionally, willfully, fraud-

ulently, and maliciously did the things herein alleged to

defraud and oppress Plaintiff. Plaintiff is therefore en-

titled to exemplary or punitive damages in an amount to

be determined at trial.

WHEREFORE, Plaintiff prays judgment as follows:

ON THE FIRST CAUSE OF ACTION:

1. That the conveyance from Defendant TOM METZ-

GER to Defendant KATHLEEN METZGER be set aside

and declared void as to the Plaintiff herein to the extent

necessary to satisfy Plaintiff's claim;

2. That Defendants KATHLEEN and TOM METZ-

GER be restrained from disposing of the property con-

veyed until trial of this matter.

3. That a temporary restraining order be granted

Plaintiff enjoining and restraining Defendants KATH-

LEEN and TOM METZGER and their representatives,

attorneys, and agents from selling, transferring, convey-

ing, encumbering or otherwise disposing of any of the

weenie nla By

: aie OS TE POE EAM rp te

EB EE AB ENR SRE TREN Da aR = im hr nl A nn oe »

5a

property transferred to KATHLEEN METZGER by

TOM METZGER;

ON THE SECOND CAUSE OF ACTION AGAINST

DEFENDANTS, AND EACH OF THEM, AS FOL-

LOWS:

4. For general damages in the sum in excess of the

jurisdiction limit of this court;

5. For special damages in an amount to be proven

at trial;

6. For exemplary or punitive damages in an amount

to be determined at trial.

ON ALL CAUSES OF ACTION:

7. For costs of suit herein incurred: and

8. For such other and further relief as the court may

deem proper.

DATED: 5-11-90

Law OFFICES oF

JAMES E. McELroy

By: /s/ James E. McElroy

JAMES E. McELrRoy

Attorneys for Plaintiff

[ Verification Omitted in Printing]

6a

[Filed May 16, 1990]

SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE

COUNTY OF SAN DIEGO

Case No. 624088

ENGEDAW BERHANU, Personal Representative of the

Estate of MULEGETA SERAW, Deceased,

w. Plaintiff,

Tom METZGER, KATHLEEN METZGER,

and Does I through X, Inclusive,

Defendants.

ORDER TO SHOW CAUSE RE PRELIMINARY

INJUNCTION AND TEMPORARY RESTRAINING

ORDER

[C.C.P. § 527]

On reading the Ex Parte Application of Plaintiff on

file in the above-entitled action, the Declaration of James

E. McElroy, and the Memorandum of Points and Au-

thorities submitted therewith, and it appearing to the sat-

isfaction of the court that this is a proper case for grant-

ing an order to show cause and a temporary restraining

order, and that unless the temporary restraining order

prayed for in the complaint be granted, great or irrepar-

able injury will result to Plaintiff before the matter can

be heard on notice.

IT IS HEREBY ORDERED that the above-named

Defendants, and each of them, appear in Department 35

of this court, located at 220 W. Broadway, San Diego, on

June 14, 1990 at 9:00 a.m., or as soon thereafter as the

matter may be heard, then and there to show cause, if any

they have, why they, and each of them, and their agents,

ee ere

ia a

Wa bm ie AR ae A Pn

Te TRL Pa vere ell netcen wiles

eed

3 atte AT eet ARE se

Ta

servants, employees, and representative should not be

enjoined and restrained during the pendency of this ac-

tion from engaging in, committing, or performing, di-

rectly or indirectly, any and all of the following acts:

selling, transferring, conveying, encumbering or otherwise

disposing of the subject property as described in the

Application.

IT IS FURTHER ORDERED that pending the hearing

and. determination of the Order To Show Cause, the

above-named Defendants, and each of them, and their

officers, agents, employees, representatives, and all per-

sons acting in concert or participating with them, shall

be and they are hereby restrained and enjoined from en-

gaging in or performing, directly or indirectly, any and all

of the following acts: selling, transferring, conveying,

encumbering, or otherwise disposing of the subject prop-

erty as described in the Application.

IT IS FURTHER ORDERED that copies of the Com-

plaint and this Order To Show Cause And Temporary

Restraining Order be served on Defendants, and each of

them, not later than May 16, 1990. Oppo Served &

Filed by 10:00 a.m. 6-6-90 (Fax permissible )-Reply Due

6-11-90.

Let the above Order issue on Plaintiff’s filing a bond

in the sum of $7,500.

/s/ Philip D. Sharp

Puitip D. SHARP

Judge of the Superior Court

8a

[Filed Jun. 14, 1990]

SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE

COUNTY-OF SAN DIEGO

Case No. 624088

ENGEDAW BERHANU, Personal Representative of the

Estate of MULEGETA SERAW, Deceased,

Plaintiff,

v.

TOM METZGER, KATHLEEN METZGER,

and Does I through X, Inclusive,

Defendants.

STIPULATION AND ORDER

RE: INJUNCTION AND RESTRAINING ORDER

IT IS HEREBY STIPULATED by and between the

parties, and ordered by this Court, that Defendants TOM

METZGER and KATHLEEN METZGER, and each of

them, their officers, agents, employees, representatives,

and all persons acting in concert or participating with

them, shall be and they are hereby restrained and en-

joined from engaging in or performing, directly or in-

directly, any and all of the following acts: selling, trans-

ferring, conveying, encumbering or otherwise disposing

of the subject property commonly known as 308 Sun-

beam Lane, Fallbrook, California and more particularly

described as follows:

The North 77.50 feet of the South 495 feet of the

East 128 feet of the West 328 feet of the Northeast

Quarter of Section 25, Township 9 South Range 4

West, San Bernardino Base and Meridian, in the

County of San Diego, State of California.

ata Gi AR it ot Pantene Te

9a

This Order shall remain in effect until sixty days after

final judgment is entered in the Oregon case of Berhanu

v. Metzger, et al, No. A 8911-07007 (Cir.Ct., Mult-

nomah County, Oregon).

Bond of $7,500.00 to continue in favor of TOM

METZGER and KATHLEEN METZGER.

TOM METZGER and KATHLEEN METZGER have

read this Stipulation and Order, understand the terms,

agree to abide by said terms and acknowledge receipt of

two copies of the Stipulation and Order. This Stipulation

was voluntarily entered into and negotiated between the

parties.

TOM METZGER and KATHLEEN METZGER un-

derstand that violation of this Order may constitute con-

tempt of court and result in punishment or penalties

imposed against them by this Court.

Dated: June 8th, 1990 /s/ Tom Metzger

TOM METZGER

Dated: June 8th, 1990 /s/ Kathleen Metzger

KATHLEEN METZGER

Dated: June 11,1990 = /s/ James E. McElroy

JAMES E. McCELRoy

Attorney for Plaintiff,

ENGEDAW BERHANU

IT ISSO ORDERED

Dated: June 14,1990 = /s/ Thomas S. Leroy

Tuomas S. LERoy

Judge of the Superior Court

{Notary Omitted in Printing]

10a

[Filed Oct. 15, 1990]

SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE

COUNTY OF SAN DIEGO

Case No. 624088

ENGEDAW BERHANU, Personal Representative of the

Estate of MULEGETA SERAW, Deceased,

Plaintiff,

Vv.

TomM METZGER, KATHLEEN METZGER,

and Does I through X, Inclusive,

Defendants.

STIPULA” JN FOR ENTRY OF JUDGMENT

IT IS HEREBY STIPULATED by and between Plain-

tiff ENGEDAW BERHANU and Defendants TOM

METZGER and KATHLEEN METZGER, by and

through themselves and their respective counsel, that

judgment in the above entitled case be entered in favor

of Plaintiff and against Defendants as follows:

1. That Defendant KATHLEEN METZGER convey

by way of quitclaim deed to THOMAS L. METZGER

and KATHLEEN E. METZGER as joint tenants, the sub-

ject property commonly known as 308 Sunbeam Lane,

Fallbrook, California, and more particularly described as

follows:

The North 77.50 feet of the South 495 feet of the

East 128 feet of the West 328 feet: of the Northeast

Quarter of Section 25, Township 9 South Range 4

West, San Bernardino Basin Meridian in the County

of San Diego, State of California.

lla

2. That Defendants THOMAS L. METZGER and

KATHLEEN E. METZGER, and each of them, their

officers, agents, employees, representatives, and all per-

sons acting in concert or participating with them, shall

be and are hereby restrained and enjoined from engaging

in or performing, directly or indirectly, any and all of

the following acts: selling, transferring, conveying, en-

cumbering, or otherwise disposing of the subject property

commonly known as 308 Sunbeam Lane, Fallbrook, Cali-

fornia and more particularly described as in Section 1

above.

3. That said restrictions imposed on Defendants

THOMAS L. METZGER and KATHLEEN E. METZ-

GER regarding this subject property located at 308 Sun-

beam Lane, Fallbrook, California shall remain in effect

only until 60 days after final judgment is entered in the

Oregon case of Berhanu v. Metzger, et al., #A8911-

07007 (Cir.Ct., Multnomah County, Oregon).

4. That each party shall bear his/her own costs, dis-

bursements and attorneys’ fees.

Dated: 10-6-90 s ‘iom Metzger

Tom METZGER

Defendant

Dated: 10-6-90 s Kathleen Metzger

KATHLEEN METZGER

Defendant

Dated: 10-15-90 s/ James E. McElroy

JAMES E. McELroy

Attorney for Plaintiff,

ENGEDAW BERHANU

12a

[Filed Oct. 29, 1990]

SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE

COUNTY OF SAN DIEGO

Case No. 624088

ENGEDAW BERHANU, Personal Representative of the

Estate of MULEGETA SERAW, Deceased,

Plaintiff,

v.

TOM METZGER, KATHLEEN METZGER,

and Does I through X, Inclusive,

Defendants.

JUDGMENT ON STIPULATION FOR

ENTRY OF JUDGMENT

[Entered Oct. 30, 1990]

In the above entitled case, Plaintiff ENGEDAW

BERHANU and Defendants TOM METZGER and

KATHLEEN METZGER, have stipulated by and through

themselves and their respective counsel, that judgment be

entered in favor of Plaintiff and against Defendants as

follows:

1. That Defendant KATHLEEN METZGER convey

by way of quitclaim deed to THOMAS L. METZGER

and KATHLEEN E. METZGER as joint tenants, the

subject property commonly known as 308 Sunbeam Lane,

Fallbrook, California, and more particularly described as

follows:

The North 77.50 feet of the South 495 feet of the

East 128 feet of the West 328 feet of the Northeast

Quarter of Section 25, Township 9 South Range 4

l3a

West, San Bernardino Basin Meridian in the County

of San Diego, State of California.

2. That Defendants THOMAS L. METZGER and

KATHLEEN E. METZGER, and each of them, their

officers, agents, employees, representatives, and all per-

sons acting in concert or participating with them, shall

be and are hereby restrained and enjoined from engaging

in or performing, directly or indirectly, any and all of

the following acts: selling, transferring, conveying, en-

cumbering, or otherwise disposing of the subject property

commonly known as 308 Sunbeam Lane, Fallbrook, Cali-

fornia and more particularly described as in Section |

above.

3. That said restrictions imposed on Defendants

THOMAS L. METZGER and KATHLEEN E. METZ-

GER regarding the subject property located at 308 Sun-

beam Lane, Fallbrook, California shall remain in effect

only until 60 days after final judgment is entered in the

Oregon case of Berhanu v. Metzger, et al., #A8911-

07007 (Cir.Ct., Multnomah County, Oregon).

4. That each party shall bear his/her own costs, dis-

bursements and attorneys’ fees.

IT IS HEREBY ADJUDGED, ORDERED, AND

DECREED that Plaintiff ENGEDAW BERHANU have

judgment entered against Defendants TOM METZGER

and KATHLEEN METZGER pursuant to the terms as

set forth above and that each party shall bear his her own

costs, disbursements and attorneys’ fees.

DATE Oct. 29.1990 s' Judith McConnell

JupitH McConneLL

Judge of the Superior Court