Appendices — National Republican Senatorial Committee v. Pritt

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APPENDIX A

IN THE SUPREME COURT OF APPEALS OF

WEST VIRGINIA

September 2001 Term

No. 29326

CHARLOTTE PRITT,

Plaintiff Below, Appellant,

V.

THE REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Defendants Below, Appellees.

Appeal from the Circuit Court of Fayette County

Honorable Charles M. Vickers, Judge

Civil Action No. 97-C-380(V)

REVERSED AND REMANDED

Submitted: October 3, 2001

Filed: December 12, 2001

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE MAYNARD, deeming himself disqualified, did

not participate in the decision of this case.

JUDGE MADDEN, sitting by temporary assignment.

2a

JUSTICE ALBRIGHT concurs and reserves the right to file a

concurring opinion.

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is

reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192

W. Va. 189, 451 S.E.2d 755 (1994).

y “When a party filing a motion for reconsideration

does not indicate under which West Virginia Rule of Civil

Procedure it is filing the motion, the motion will be

considered to be either a Rule 59(e) motion to alter or amend

a judgment or a Rule 60(b) motion for relief from a judgment

order. If the motion is filed within ten days of the circuit

court’s entry of judgment, the motion is treated as a motion

to alter or amend under Rule 59(e). If the motion is filed

outside the ten-day limit, it can only be addressed under Rule

60(b).” Syllabus point 2, Powderidge Unit Owners

Association v. Highland Properties, Ltd., 196 W. Va. 692,

474 S.E.2d 872 (1996).

a “The standard of review applicable to an appeal from

a motion to alter or amend a judgment, made pursuant to W.

Va. R. Civ. P. 59(e), is the same standard that would apply to

the underlying judgment upon which the motion is based and

from which the appeal to this Court is filed.” Syllabus point

1, Wickland v. American Travellers Life Insurance Co., 204

W. Va. 430, 513 S.E.2d 657 (1998).

4. “A motion for summary judgment should be granted

only when it is clear that there is no genuine issue of fact to

be tried and inquiry concerning the facts is not desirable to

clarify the application of the law.” Syllabus Point 3, Aetna

Casualty & Surety Co. v. Federal Insurance Co. of New

York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Syllabus

Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706,

421 S.E.2d 247 (1992).” Syllabus point 1, Williams v.

Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

3a

>. “Roughly stated, a “genuine issue” for purposes of

West Virginia Rule of Civil Procedure 56(c) is simply one

half of a trialworthy issue, and a genuine issue does not arise

unless there is sufficient evidence favoring the non-moving

party for a reasonable jury to return a verdict for that party.

The opposing half of a trialworthy issue is present where the

non-moving party can point to one or more disputed

“material” facts. A material fact is one that has the capacity |

to sway the outcome of the litigation under the applicable

law. Syl. Pt. 5, Jividen v. Law, 194 W. Va. 705, 461 S.E.2d

451 (1995).” Syllabus point 2, Tolliver v. Kroger Co., 201

W. Va. 509, 498 S.E.2d 702 (1997).

6. “A candidate for political office is governed by the

same rules with regard to recovery for libel as a public

official and can sustain an action for libel only if he can

prove that: (1) the alleged libelous statements were false or

misleading; (2) the statements tended to defame the plaintiff

and reflect shame, contumely, and disgrace upon him; (3) the

statements were published with knowledge at the time of

publication that they were false or misleading or were

published with a reckless and willful disregard of truth; and,

(4) the publisher intended to injure the plaintiff through the

knowing or reckless publication of the alleged libelous

_ material.” Syllabus point 1, Sprouse v. Clay Communication,

Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975).

Ws “In order for a public official or a candidate for public

office to recover in a libel action, the plaintiff must prove

that: (1) there was the publication of a defamatory statement

of fact or a statement in the form of an opinion that implied

the allegation of undisclosed defamatory facts as the basis for

the opinion; (2) the stated or implied facts were false; and,

(3) the person who uttered the defamatory statement either

knew the statement was false or knew that he was publishing

the statement in reckless disregard of whether the statement

was false.” Syllabus point 1, Hinerman v. Daily Gazette Co.,

Inc., 188 W. Va. 157, 423 S.E.2d 560 (1992).

4a

8. “A court must decide initially whether as a matter of

law the challenged statements in a defamation action are

capable of a defamatory meaning.” Syllabus point 6, Long v.

Egnor, 176 W. Va. 628, 346 S.E.2d 778 (1986).

9. “A statement of opinion which does not contain a

provably false assertion of fact is entitled to full

constitutional protection.” Syllabus point 4, Maynard v.

Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293 (1994).

10. “[W]Jhether a statement is one of fact or opinion is an

issue that must be decided initially by a court.” Syllabus

point 7, in part, Long v. Egnor, 176 W. Va. 628, 346 S.E.2d

778 (1986).

11. “Plaintiffs who are public officials or public figures

must prove by clear and convincing evidence that the

defendants made their defamatory statement with knowledge

that it was false or with reckless disregard of whether it was

false or not.” Syllabus point 2, in part, State ex rel. Suriano

v. Gaughan, 198 W. Va. 339, 480 S.E.2d 548 (1996).

12. _—_‘ In order for a public official or a candidate for public

office to recover in a libel action, he/she must prove by clear

and convincing evidence that the stated or implied facts were

false.

DAVIS, Justice.

The appellant herein and plaintiff below, Charlotte

Pritt [hereinafter referred to as “Ms. Pritt”], appeals from

orders entered May 15, 2000, and June 13, 2000, by the

Circuit Court of Fayette County. In the first order, the circuit

court granted summary judgment for the appellees herein and

defendants below, the Republican National Committee, et al.

Sa

[hereinafter collectively referred to as “RNC”],' concluding 3

that statements made in advertisements sponsored by RNC 5

during the 1996 West Virginia Gubernatorial race were not

false or published with actual malice as alleged by Ms. Pritt.

The circuit court’s second order denied Ms. Pritt’s “motion

for reconsideration.” On appeal to this Court, Ms. Pritt

assigns numerous errors, including (1) summary judgment

was not proper because there existed a genuine issue of

material fact; (2) the circuit court failed to determine whether

the statements in issue were defamatory; (3) deposition

testimony was erroneously excluded; and (4) in rendering its

decision, the circuit court neglected to address the remaining

counts asserted in her amended complaint. Upon a review of

the parties’ arguments, the record submitted for appellate

review, and the pertinent authorities, we agree with Ms. Pritt

that genuine issues of material fact do preclude the

disposition of this matter by summary judgment.

Accordingly, we reverse the circuit court’s ruling to the

contrary, and remand this case for further proceedings

consistent with this Opinion.

ep Pe Si TAN Se EE Ne PR

; In her complaint, Ms. Pritt named multiple defendants: the

National Republican Senatorial Committee, the West Virginia State

Victory Committee, John Doe, Jane Doe, and the appellee named herein,

the National Republican Committee, a.k.a. the National Republican

Party. For ease of reference, and to maintain consistency with the circuit

court’s order underlying the instant appeal, we will collectively refer to

these defendants below, who are also appellees herein, as the Republican

National Committee, or “RNC,” except where designation of specific

parties is warranted.

6a

I.

FACTUAL AND PROCEDURAL HISTORY

In 1996, Ms. Pritt, a former West Virginia

schoolteacher and state legislator, was the Democratic party’s

candidate for the office of Governor of the State of West

Virginia. During the month immediately preceding the

general election, the National Republican Senatorial

Committee [hereinafter referred to as “NRSC”] formally

organized the West Virginia State Victory Committee

[hereinafter referred to as “Victory Committee”] pursuant to

the election laws of this State. See generally W. Va. Code

§ 3-8-1, et seg. Among other activities, the Victory

Committee sponsored and published numerous radio and

television advertisements, during the final weeks of the

campaign, which called into question Ms. Pritt’s character

and campaign platform. One of these radio spots specifically

charged:

Behind Charlotte Pritt’s campaign smile is a liberal

voting record she can’t hide from.

In the State Senate, Charlotte Pritt proposed

teaching first graders about condoms.

Surprised? You shouldn’t be.

Senator Pritt also voted to permit the sale of

pornographic Videos to children.

She even voted to allow convicted drug abusers to

work in our public schools.

If parents can’t trust Charlotte Pritt to protect our

children, think also of our veterans.

Charlotte Pritt voted against honoring the men and

women of West Virginia who fought in the Gulf

War.

Ta

Senator Pritt voted to allow the burning of the

American Flag that all veterans fought so hard to

defend.

She even opposed requiring students to begin their

day with the Pledge of Allegiance.

Look behind the Smile.

Charlotte Pritt — wrong on the issues.

Wrong for West Virginia[.]

Paid for by West Virginia State Victory Committee

Mary M. Dotter, Treasurer

Not authorized by Underwood for Governor

Television advertisements backed by the Victory Committee

made similar claims.

Given the temporal restraints of the campaign’s

culmination, Ms. Pritt was unable to respond to many of

these allegations.” Ultimately, she lost the general election to

the Republican nominee for Governor, Cecil Underwood.

Shortly after Governor Underwood assumed office, the

Victory Committee was dissolved.

Subsequently, on October 31, 1997, Ms. Pritt filed a

civil action in the Circuit Court of Fayette County against

RNC, NRSC, the Victory Committee, John Doe, and Jane

Doe. In her lawsuit, Ms. Pritt alleged that the defendants

’ Once the damaging advertisements were disseminated, the

Republican gubernatorial candidate, Cecil Underwood, denounced the

ads, disassociated himself therefrom, and requested the Victory

Committee to cease their further publication. The Victory Committee,

however, refused these requests and continued to endorse the

advertisements through Election Day 1996.

; Ms. Pritt filed an amended complaint on October 26, 1998.

8a

had defamed her,* exposed her to “false light” publicity, and

violated W. Va. Code § 3-8-11(c) (1995) (Repl. Vol. 1999).°

Following discovery, the defendants collectively moved for

summary judgment.° By order entered May 15, 2000, the

Circuit court granted the defendants’ motion, ruling, in part,

that

. Specifically, the circuit court denominated Ms. Pritt’s defama-

tion claims as defamation per quod (Count I) and defamation per se

(Count Il). See Black’s Law Dictionary 427 (7th ed. 1999) (defining

“defamation per quod “ as “[d]Jefamation that either (1) is not apparent

but is proved by extrinsic evidence showing its injurious meaning or (2)

is apparent but is not a statement that is actionable per se” and construing

“defamation per se “ to mean “[a] statement that is defamatory in and of

itself and is not capable of an innocent meaning”).

, W. Va. Code § 3-8-11 (1995) (Repl. Vol. 1999) criminalizes

various improper election practices. Pertinent to the instant proceeding is

subsection (c) thereof, which provides that

[aJny person who shall, knowingly, make or publish, or cause to

be made or published, any false statement in regard to any

candidate, which statement is intended or tends to affect any

voting at any election whatever...

[i]s guilty of a misdemeanor, and, on conviction thereof, shall be

fined not more than ten thousand dollars, or confined in jail for

not more than one year, or, in the discretion of the court, shall be

subject to both such fine and imprisonment.

W. Va. Code § 3-8-11(c).

. A motion for summary judgment is permitted by Rule 56(c) of

the West Virginia Rules of Civil Procedure when “there is no genuine

issue as to any material fact and ... the moving party is entitled to a

judgment as a matter of law.”

9a

As a former state legislator and candidate for the

office[ ] of Governor, plaintiff [Ms. Pritt] is a

“public figure” for purposes of this lawsuit. ..,

As a public figure, plaintiff must prove by “clear

and convincing evidence” that the statements at

issue were both false and published with “actual

malice” — that defendants had “knowledge at the

time of publication that they were false” or

published them with “reckless and willful disregard

for the truth.” ...

Summary judgment on all four Counts is warranted

because the statements at issue are not false.

Defendants analyzed the legislative record and

explained at length why all but one of the statements

at issue are true, and why the last one is a protected

expression of opinion.... In particular, defendants

set forth plaintiff’s legislative votes that supported

each statement and countered the interpretations

giving rise to plaintiff’s claims. . . .

Summary judgment on all four Counts is also

warranted because there is no record evidence that

any defendant acted with “actual malice.”

(Citations omitted). In response to this ruling, Ms. Pritt filed,

on May 25, 2000, a “motion for reconsideration,” which the

circuit court denied by order entered June 13, 2000. It is

from these orders of the circuit court that Ms. Pritt now

appeals to this Court.

Il.

STANDARD OF REVIEW

The instant appeal comes to this Court from decisions

of the circuit court granting summary judgment in favor of

RNC and denying Ms. Pritt’s post-judgment motion. We

Oe Bee Oe tt ee

10a

typically apply a plenary review to an order of a circuit court

deciding a summary judgment motion. “A circuit court’s

entry of summary judgment is reviewed de novo.” Syl. pt. 1,

Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

Also involved in this proceeding are numerous legal

questions, the resolution of which is integral to the summary

judgment ruling. In this regard, we likewise review anew a

lower tribunal’s determination of questions of law. “Where

the issue on an appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we

apply a de novo standard of review.” Syl. pt. 1, Chrystal

R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415

(1995).

Finally, we must ascertain the appropriate standard of

review to apply to the circuit court’s order of June 13, 2000,

whereby it denied Ms. Pritt’s “motion for reconsideration.”

Generally speaking, “a ‘motion to reconsider’ is not a

properly titled pleading in West Virginia.” Richardson v.

Kennedy, 197 W. Va. 326, 329, 475 S.E.2d 418, 421 (1996)

(citations omitted). Nevertheless, we routinely re-

characterize such motions as those made pursuant to Rules

59(e) or 60(b) of the West Virginia Rules of Civil Procedure

depending upon when they were filed in the circuit court.

When a party filing a motion for reconsideration

does not indicate under which West Virginia Rule of

Civil Procedure it is filing the motion, the motion

will be considered to be either a Rule 59e)’ motion

to alter or amend a judgment or a Rule 60(b)*

: Rule 59(e) of the West Virginia Rules of Civil Procedure

permits a party to file a “motion to alter or amend the judgment... not

later than 10 days after entry of the judgment.”

, W. Va. R. Civ. P. 60(b) permits, in pertinent part,

(continued...)

lla

motion for relief from a judgment order. If the

motion is filed within ten days of the circuit court’s

entry of judgment, the motion is treated as a motion

to alter or amend under Rule 59(e): If the motion is

filed outside the ten-day limit, it can only be

addressed under Rule 60(b).

Syl. pt. 2, Powderidge Unit Owners Ass’n v. Highland

Props., Ltd., 196 W. Va. 692, 474 S.E.2d 872 (1996)

(footnotes added). Accord Syl. pt. 1, Richardson v.

Kennedy, 197 W. Va. 326, 475 S.E.2d 418 (“‘A motion to

amend or alter judgment, even though it is incorrectly

denominated as a motion to “reconsider”, “vacate”, “set

aside”, or “reargue” is a Rule 59(e) motion if filed and served

within ten days of entry of judgment.’ Syllabus Point 1,

Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600

(1992).”’).

In the case sub judice, it appears from the record that

Ms. Pritt filed her “motion for reconsideration” within ten

days of the circuit court’s summary judgment order.

[o]n motion and upon such terms as are just, the court may relieve

a party or a party’s legal representative from a final judgment,

order, or proceeding for the following reasons: (1) Mistake,

inadvertence, surprise, excusable neglect, or unavoidable cause;

(2) newly discovered evidence which by due diligence could not

have been discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse

party; (4) the judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which

it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective

' application; or (6) any other reason justifying relief from the

operation of the judgment.

12a

Accordingly, we will treat this motion as one made pursuant

to Rule 59(e) of the West Virginia Rules of Civil Procedure.

See Syl. pt. 2, Powderidge, 196 W. Va. 692, 474 S.E.2d 872.

_ The standard of review applicable to an appeal from

a motion to alter or amend a judgment, made

pursuant to W. Va. R. Civ. P. 59(e), is the same

standard that would apply to the underlying

judgment upon which the motion is based and from

which the appeal to this Court is filed.

Syl. pt.1, Wickland v. American Travellers Life Ins. Co., 24

W. Va. 430, 513 S.E.2d 657 (1998). Therefore, we apply a

de novo standard of review to the circuit court’s ruling in this

regard. See Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451

S.E.2d 755. Having established the standards of review

applicable to this case, we proceed to consider the parties’

arguments.

Il.

DISCUSSION

On appeal to this Court, Ms. Pritt raises numerous

assignments of error, including the circuit court (1)

improperly granted summary judgment to RNC when there

existed a genuine issue of material fact; (2) failed to

determine whether the Victory Committee’s advertisements

were defamatory; (3) erroneously excluded deposition

testimony; and (4) neglected to address the remaining claims

asserted in her amended complaint. Despite these various

contentions, however, the primary matter to be resolved by

this Court is the propriety of the circuit court’s summary

judgment ruling. It is with this issue, then, that we will begin

our deliberation and determination of this case.

“The function of summary judgment is ‘to pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.”

13a

Powderidge, 196 W. Va. at 697, 474 S.E.2d at 877 (quoting

Hanlon v. Chambers, 195 W. Va. 99, 106, 464 S.E.2d 741,

/48 (1995)). Therefore, summary judgment is appropriate if

“there is no genuine issue as to any material fact and... the

moving party is entitled to a judgment as a matter of law.”

W. Va. R. Civ. P. 56(c). In other words,

“‘Ta]_ motion for summary judgment should be

granted only when it is clear that there is no genuine

issue of fact to be tried and inquiry concerning the

facts is not desirable to clarify the application of the-

law.’ Syllabus Point 3, Aetna Casualty & Surety

Co. v. Federal Insurance Co. of New York, 148 W.

Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1,

Andrick v. Town of Buckhannon, 187 W. Va. 706,

421 S.E.2d 247 (1992).

Syl. pt. 1, Williams v. Precision Coil, Inc., 194 W. Va. 32,

459 S.E.2d 329 (1995).

On the other hand, and as suggested by Rule 56(c),

- this Court will reverse summary judgment if we

find, after reviewing the entire record, a genuine

issue of material fact exists or if the moving party is

‘not entitled to judgment as a matter of law. In cases

of substantial doubt, the safer course of action is to

deny the motion and to proceed to trial.

Id., 194 W. Va. at 58-59, 459 S.E.2d at 335-36.

When assessing whether summary judgment is

appropriate, then, one of the main considerations is whether

there exists a genuine issue of material fact. See W. Va. R.

Civ. P. 56(c); Syl. pt. 1, Williams, 194 W. Va. 52, 459 S.E.2d

329.

“Roughly stated, a ‘genuine issue’ for purposes of

West Virginia Rule of Civil Procedure 56(c) is

simply one half of a trialworthy issue, and a genuine

issue does not arise unless there is sufficient

ROS a cat ead

14a

evidence favoring the non-moving party for a

reasonable jury to return a verdict for that party.

The opposing half of a trialworthy issue is present

where the non-moving party can point to one or

more disputed ‘material’ facts. A material fact is

one that has the capacity to sway the outcome of the

litigation under the applicable law.” Syl. Pt. 5,

Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451

(1995).

Syl. pt. 2, Tolliver v. Kroger Co., 201 W. Va. 509, 498

S.E.2d 702 (1997). In making such a determination,

[t]he circuit court’s function at the summary

judgment stage is not “to weigh the evidence and

determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.

2505, 2511, 91 L. Ed. 2d 202, 212 (1986).

Consequently, we must draw any _ permissible

inference from the underlying facts in the most

favorable light to the party opposing the motion. ...

In assessing the factual record, we must grant the

nonmoving party the benefit of inferences, as

“[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a

judge [.]” Anderson, 477 U.S. at 255, 106 S. Ct. at

2513, 91 L. Ed. 2d at 216. Summary judgment

should be denied “even where there is no dispute as

to the evidentiary facts in the case but only as to the

conclusions to be drawn therefrom.” Pierce v.

Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert.

denied, 342 U.S. 887, 72 S. Ct. 178, 96 L. Ed. 666

(1951).

Williams, 194 W. Va. at 59, 459 S.E.2d at 336 (additional

citations omitted). Moreover,

15a

[a] nonmoving party need not come forward with

evidence in a form that would be admissible at trial

in order to avoid summary judgment. Celotex

Corp.[ v. Catrett ], 477 U.S. [317,] 324, 106 S. Ct.

[2548,] 2553, 91 L. Ed. 2d [265,] 274 [(1986)].

However, to withstand the motion, the nonmoving

party must show there will be enough competent

evidence available at trial to enable a finding

favorable to the nonmoving party.

Williams, 194 W. Va. at 60-61, 459 S.E.2d at 337-38

(citation omitted).

With these principles in mind, and upon a review of

the record submitted for appellate consideration in this case,

we conclude that there are genuine issues of material fact so

as to necessitate the presentation of this case to a jury.

Unlike the circuit court, we are not firmly convinced that the

factual issues herein have been finally resolved. Specifically,

before this Court, the parties repeatedly and continuously

have argued the facts giving rise to the instant appeal and

whether the allegedly defamatory statements were tainted

with falsity or laced with malice. When faced with such an

ongoing factual dispute, and inferences that, if viewed in the

nonmovant’s favor, could support a verdict for the

nonmovant, we must not continue to harbor these doubts as

to whether summary judgment is appropriate but rather hand

the case over-to a jury, in whose province such factual

: See Williams v. Precision Coil, Inc., 194 W. Va. 52, 59, 459

S.E.2d 329, 336 (1995) (counseling that, when deciding a motion for

summary judgment, the reviewing tribunal “must draw any permissible

inference from the underlying facts in the most favorable light to the

party opposing the motion. ... In assessing the factual record, [it] must

grant the nonmoving party the benefit of inferences... .” (citations

omitted)).

16a

determinations lie.'° Accordingly, we reverse the circuit

court’s rulings granting summary judgment to RNC, and

affirming the same, and remand this matter for further

proceedings consistent with this Opinion."

During our deliberation and decision of this case, it

has come to our attention that the litigation of a cause of

” We remain somewhat troubled by the circuit court’s decision,

during the summary judgment proceedings, to discredit the evidence

introduced by Ms. Pritt to demonstrate the existence of a genuine issue of

material fact. In prior cases we have held that

“(t]he West Virginia Rules of Evidence ... allocate significant

discretion to the trial court in making evidentiary ... rulings.

Thus, rulings on the admissi[bility] of evidence ... are

committed to the discretion of the trial court. Absent a few

exceptions, this Court will review evidentiary ... rulings of the

circuit court under an abuse of discretion standard.” Syl. Pt. 1,

in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d

788 (1995).

Syl. pt. 9, Tudor v. Charleston Area Med. Ctr., Inc., 203 W. Va. 111,

506 S.E.2d 554 (1997). While the circuit court generally possesses broad

authority in this regard, where summary judgment proceedings are

concerned, the evidentiary standard to be satisfied by the nonmoving

party is not the same obstacle that he/she must overcome at trial. See

Williams, 194 W. Va. at 60, 459 S.E.2d at 337 (““A nonmoving party need

not come forward with evidence in a form that would be admissible at

trial in order to avoid summary judgment.” (citation omitted)).

Furthermore, Ms. Pritt suggests that the deposition testimony she offered

was admissible pursuant to several different provisions of the West

Virginia Rules of Evidence, and not just under the one relied upon by the

circuit court. Therefore, upon remand, we urge the circuit court to

consider these various evidentiary rules if Ms. Pritt seeks to re-introduce

this testimony.

a Based upon this disposition of the instant appeal, we need not

consider further Ms. Pritt’s remaining assignments of error.

17a

action for defamation can prove to be a daunting task for

even the most learned jurist or the most experienced

counselor. Therefore, in an attempt to clarify this nebulous

area of the law, we will briefly set forth the various tenets

applicable to the case sub judice, pursuant to which remand

proceedings should be conducted. First, due to the status of

the complainant herein, the case must proceed as directed by

the first Syllabus point of Sprouse v. Clay Communication,

Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975):

A candidate for political office is governed by the

same rules with regard to recovery for libel’? as a

public official and can sustain an action for libel

only if he can prove that: (1) the alleged libelous

statements were false or misleading; (2) the

statements tended to defame the plaintiff and reflect

shame, contumely, and disgrace upon him; (3) the

statements were published with knowledge at the

time of publication that they were false or

misleading or were published with a reckless and

willful disregard of truth; and, (4) the publisher

intended to injure the plaintiff through the knowing

or reckless publication of the alleged libelous

material.

(Footnote added). Thus, to sustain a cause of action for

defamation, a public official, after establishing the existence

of an allegedly defamatory statement, must prove that the

statement was (1) false and (2) published with actual malice:

23 Generally speaking, “defamation” is “[a] false written or oral

statement that damages another’s reputation.” Black’s Law Dictionary

427 (7th ed. 1999). The specific type of “defamation” complained of

herein is “libel,” which is defined as “[a] defamatory statement expressed

in a fixed medium, esp. ... [an] electronic broadcast.” /d. at 927.

18a

In order for a public official or a candidate for

public office to recover in a libel action, the plaintiff

must prove that: (1) there was the publication of a

defamatory statement of fact or a statement in the

form of an opinion that implied the allegation of

undisclosed defamatory facts as the basis for the

opinion; (2) the stated or implied facts were false;

and, (3) the person who uttered the defamatory

statement either knew the statement was false or

knew that he was publishing the statement in

reckless disregard of whether the statement was

false.

Syl. pt. 1, Hinerman v. Daily Gazette Co., Inc., 188 W. Va.

157, 423 S.E.2d 560 (1992).

The next step in a public official’s defamation case

requires the presiding court to ascertain whether the

statements complained of are defamatory. “A court must

decide initially whether as a matter of law the challenged

statements in a defamation action are capable of a

defamatory meaning.” Syl. pt. 6, Long v. Egnor, 176 W. Va.

628, 346 S.E.2d 778 (1986). In making this assessment, the

tribunal must also consider whether the allegedly defamatory

statements could be construed as statements of opinion. “A

statement of opinion which does not contain a provably false

assertion of fact is entitled to full constitutional protection.”

Syl. pt. 4, Maynard v. Daily Gazette Co., 191 W. Va. 601,

447 S.E.2d 293 (1994). “[W]hether a statement is one of fact

or opinion is an issue that must be decided initially by a

court.” Syl. pt. 7, in part, Long v. Egnor, 176 W. Va. 628,

346 S.E.2d 778.

Once this hurdle has been overcome, a public official

must prove the cause of action’s elements. Falsity, the first

such element, was explained by this Court in our prior case

of State ex rel. Suriano v. Gaughan, as follows:

19a

The law of libel takes but one approach to the

question of falsity, regardless of the form of the

communication. It overlooks minor inaccuracies

and concentrates upon substantial truth. Minor

inaccuracies do not amount to falsity so long as the

substance, the gist, the sting, of the libelous charge

be justified. A statement is not considered false

unless it would have a different effect on the mind

of the reader from that which the pleaded truth

would have produced.

Syl. pt. 4, 198 W. Va. 339, 480 S.E.2d 548 (1996). Actual

malice, the second element to be proved in a public official’s

defamation action, is present if the statement at issue was

made “with knowledge that [the statement] was false or with

reckless disregard of whether it was false or not.” New York

Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 726,

11 L. Ed. 2d 686, 706 (1964). See also Syl. pt. 1, Sprouse,

158 W. Va. 427, 211 S.E.2d 674. “Reckless disregard” has

been further defined by the United States Supreme Court in

St. Amant v. Thompson as indicative that “the defendant in

fact entertained serious doubts as to the truth of his

publication. Publishing with such doubts shows reckless

disregard for truth or falsity and demonstrates actual malice.”

390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262,

267 (1968).

Finally, to establish actual malice, the complaining

public official must prove its existence by clear and

convincing evidence. “Plaintiffs who are public officials or

public figures must prove by clear and convincing evidence

that the defendants made their defamatory statement with

knowledge that it was false or with reckless disregard of

whether it was false or not.” Syl. pt. 2, in part, Suriano, 198

W. Va. 339, 480 S.E.2d 548. See also Sullivan, 376 U.S. at

285-86, 84 S. Ct. at 729, 11 L. Ed. 2d at 710 (observing that

a public official must prove actual malice with “convincing

clarity”). But see Dodd v. Pearson, 277 F. Supp. 469, 471

20a

(D.D.C. 1967) (requiring public official to prove actual

malice by “a fair preponderance of the evidence’’). Similarly,

“[{iJn order for a public official or a candidate for public

office to recover in a libel action, he must prove by clear

and convincing evidence that ... the stated or implied

facts were false.”'*> Hinerman, 188 W. Va. at 168-69, 423

S.E.2d at 571-72 (citations omitted). Cf. Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 661

n.2, 109 S. Ct. 2678, 2682 n.2, 105 L. Ed. 2d 562, 572 n.2

(1989) (noting that “[t]here is some debate as to whether the

element of falsity must be established by clear and

convincing evidence or by a preponderance of the evidence,”

but concluding that the Court “express[es] no view on this

issue”). But see Rowden v. Amick, 446 S.W.2d 849, 857

(Mo. Ct. App. 1969) (concluding that public official’s burden

of proof as to falsity and actual malice is by a

“preponderance of the evidence” standard).'* This burden of

” In her brief, Ms. Pritt contends that a public official need prove

only by a preponderance of the evidence that the allegedly defamatory

statements were false. However, the cases cited in support of this

proposition do not definitively resolve this issue as their only references

thereto consist of recitations of jury instructions with no corresponding

rulings as to the appropriateness of such a standard therein. See Estep v.

Brewer, 192 W. Va. 511, 514 n.3, 453 S.E.2d 345, 348 n.3 (1994) (per

curiam); Sprouse v. Clay Communication, Inc., 158 W. Va. 427, 462

n.10, 211 S.E.2d 674, 697 n.10 (1975).

ai Although no longer relevant to the instant proceeding given that

this case cannot be disposed of summarily, we note that a public official

opposing a summary judgment motion must establish his/her prima facie

case of defamation, and the elements thereof, by clear and convincing

evidence:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986), requires a libel plaintiff who is a public

official or a public figure to resist a motion for summary

(continued...)

2la

proof likewise was recognized by Justice Miller in his dissent

to the majority’s opinion in Hinerman:

under First Amendment law, [a public official]

plaintiff [has] to prove by clear and convincing

evidence each of the ... elements [of libel] to

recover damages.... [Thus], the plaintiff [has] to

prove that the ... statements were, in the language

of Masson [v. New Yorker Magazine, Inc.], false or

misleading to the extent that the true facts would

have produced a “‘different effect on the mind of

the reader’” because “[mJinor inaccuracies do not

amount to falsity so long as ‘the substance, the gist,

the sting, of the libelous charge be justified.’” [501]

U.S. [496,] [517], 111 S. Ct. [2419,] 2433, 115 L.

Ed. 2d [447,] 472 [(1991)] (Citations omitted).

188 W. Va. at 187, 423 S.E.2d at 590.

While the above survey of the law is not intended to

be exhaustive, we do hope that it provides the necessary

guidance for the continuation of the instant litigation. Thus,

it is with great optimism that we have provided this concise

rubric in the hope that future proceedings in this case will be

fairly and judiciously determined.

judgment by showing clear and convincing evidence of the

defendant’s actual malice. That is, the federal (and state)

constitutional protections of free speech require a stricter standard

of evidence to survive pretrial motions in such cases than is

required in other cases.

Crain v. Lightner, 178 W. Va. 765, 769 n.1, 364 S.E.2d 778, 782 n.1

(1987) (citing Long v. Egnor, 176 W. Va. 628, 635-36, 346 S.E.2d 778,

785-86 (1986)).

IV.

CONCLUSION

Because we find genuine issues of material fact

rendered summary judgment improper in this matter, we

reverse the May 15, 2000, and June 13, 2000, orders of the

Circuit Court of Fayette County and remand this case for

further proceedings consistent with this Opinion.

Reversed and Remanded.

Justice MAYNARD, deeming himself disqualified, did not

participate in the decision of this case.

Judge MADDEN, sitting by temporary assignment.

ALBRIGHT, Justice, concurring.

I fully concur in the judgment of the Court and in

Justice Davis’ opinion.

I write separately to note disagreement with a position

Appellees asserted. Appellees suggested to us, as I

understood them, that because the author of the commercials

at issue in this case asserted a belief that the information

contained in the commercials relating to Appellant’s past

actions was factually accurate, neither Appellee could be

found guilty of malice or be found to have defamed

Appellant.

Respectfully, I suggest that the issue is what

Appellees, or either of them, knew or should have known

regarding the factual content and the context of the

commercials. Appellees’ appreciation of the factual content

and the context of the commercials springs from the

knowledge and experience of the leadership, staff and

respective governing bodies of each of the Appellees. What

23a

a hired wordsmith knew or should have known is but a part

of the picture. Appellees cannot be permitted to hide behind

deficiencies in that wordsmith’s appreciation of what his

commiercials said to the public about Appellant.

I am authorized to state that Justice STARCHER

joins in this concurring opinion.

24a

APPENDIX B

Twelfth Judicial Circuit of West Virginia

Fayette County

Charles M. Vickers, Judge

P.O. Box 599

Fayetteville, West Virginia 25840

May 15, 2000

Michael W. Carey, Esq.

Carey, Hill, Scott, Winter & Johnson

P.O. Box 3884

Charleston, WV 25338

H.H. Roberts, Esq.

Suite 214, Professional Building

1036 Quarrier Street

Charleston, WV 25301

Re: Charlotte Pritt vs.

The Republican National Committee, et al.

Civil Action No. 97-C-380

Gentlemen:

The Court has reviewed the entire file in this action

and has given the parties an opportunity to submit a proposed

order prior to announcing a decision on defendants’ motion

for summary judgment.

The motion for summary judgment is granted, and the

findings of fact and conclusions of law set forth in the

proposed order are adopted by this Court as accurately

reflecting the existing law and the record.

Very truly yours,

s/ Charles M. Vickers

25a

IN THE CIRCUIT COURT FOR

FAYETTE COUNTY, WEST VIRGINIA

CHARLOTTE PRITT,

Plaintiff,

v. No. 97-C-380(v)

THE REPUBLICAN NATIONAL

COMMITTEE, et al.,

Defendants.

SUMMARY JUDGMENT ORDER

The Court, having considered defendants’ motion for

summary judgment and the parties’ memoranda of law, and

having heard oral argument on August 26, 1999, hereby

GRANTS defendants’ motion for summary judgment.

FINDINGS OF FACT

Plaintiff, Charlotte Jean Pritt, a former member of the

West Virginia state legislature, was the Democratic nominee

for Governor of West Virginia in 1996. She lost that

election. Defendants are the Republican National

Committee, the National Republican Senatorial Committee,

and the West Virginia State Victory Committee. From

October 24 until November 5, 1996 (Election Day), the

Victory Committee sponsored radio and _ television

advertisements that discussed the legislative voting record of

26a

plaintiff. These advertisements were created by political

consultant David Welch, who is not a defendant.

Plaintiff filed a complaint against defendants on

October 31, 1997, and filed the Amended Complaint that is

the subject of this Order on October 26, 1998. The Amended

Complaint asserts that through the advertisements,

defendants defamed plaintiff per quod (Count I) and per se

(Count IID), violated W. Va. Code § 3-8-11(c) (Count II), and

exposed plaintiff to "false light" publicity (Count IV).

Plaintiff attached the radio advertisement to her Amended

Complaint and has identified several statements as the basis

of her claims.

CONCLUSIONS OF LAW

As a former state legislator and candidate for the

officer of Governor, plaintiff is a "public figure" for purposes

of this lawsuit. Long v. Egnor, 176 W. Va. 628, 630 (1986);

Sprouse v. Clay Commun., Inc., 158 W. Va. 427, 432, cert.

denied, 434 U.S. 882 (1975).

As a public figure, plaintiff must prove by "clear and

convincing evidence” that the statements at issue were both

false and published with "actual malice" — that defendants

had "knowledge at the time of publication that they were

false" or published them with "reckless and willful disregard

for the truth." New York Times Co. v. Sullivan, 376 U.S. 254,

280 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350-

51 (1974). West Virginia courts are familiar with these

requirements. Long, 176 W. Va. at 630; Sprouse, 158 W.

Va. at 432. The court must "decide initially" whether the

statements at issue are “capable of a defamatory meaning,"

Long, 176 W. Va. at 637, and "independently decide"

whether plaintiff has come forward in response to a well-

supported summary judgment motion with clear and

27a

convincing evidence of actual malice. Bose Corp. v.

Consumers Union of U.S., 466 U.S. 485, 511-12 (1984).

Summary judgment on all four Counts is warranted

because the statements at issue are not false. Defendants

analyzed the legislative record and explained at length why

all but one of the statements at issue are true, and why the

last one is a protected expression of opinion. Maynard v.

Daily Gazette Co., 191 W. Va. 601, 604-06 (1994). In

particular, defendants set forth plaintiff's legislative votes

that supported each statement and countered the

interpretations giving rise to plaintiff's claims. Plaintiff's

only record evidence concerning falsity (other than her own

assertion) consists of deposition testimony from Michael

Withers and Lyle Sattes, who served with plaintiff in the

state legislature. These witnesses offered their opinion that

two of the statements at issue falsely construed their intent in

voting as they and plaintiff voted on the bills at issue.

Opinion testimony, however, is not probative unless provided

by an expert witness designated pursuant to W. Va. R. Civ.

P. 26(b)(4), and plaintiff has not designated either of these

witnesses as an expert. Neither witness disputed that plaintiff

cast the votes at issue, or that the legislation could reasonably

be interpreted as summarized in the advertisements. Their

testimony does not create a genuine issue of material fact.

Summary judgment on all four Counts is also

warranted because there is no record evidence that any

defendant acted with "actual malice." Plaintiff contends that

David Welch, who created the advertisements but is not a

defendant, "should have known" the statements at issue were

false. What Mr. Welch "should have known" is irrelevant

because negligence does not satisfy plaintiffs burden of

proof. Masson v. The New Yorker Magazine, 501 U.S. 496,

510 (1991). Further, Mr. Welch testified at his deposition

that he reviewed the legislative record and believed the

advertisements were "absolutely truthful." Craig Engle,

General Counsel of defendant National Republican

28a

Senatorial Committee, also stated in an Affidavit that he

studied the advertisements, compared their statements with

plaintiff's votes, and approved them for publication only after

he was satisfied that they were true. There is no genuine

issue of material fact concerning “actual malice."!

CONCLUSION

It is therefore ORDERED that defendants’ motion for

summary judgment is GRANTED as to plaintiffs Amended

Complaint.

s/

Judge Charles M. Vickers

Circuit Court of Fayette County

ENTERED this 15 day of _May_, 2000.

The Court notes but does not consider defendants’ contentions

that all four Counts are time-barred, that plaintiff cannot prove any injury

caused by the advertisements, and that neither Count II nor Count IV

states a sufficient claim.

29a

APPENDIX C

IN THE CIRCUIT COURT FOR

FAYETTE COUNTY, WEST VIRGINIA

CHARLOTTE PRITT,

Plaintiff,

v. No. 97-C-380(v)

THE REPUBLICAN NATIONAL :

COMMITTEE, et al.,

Defendants.

ORDER DENYING PLAINTIFF'S

"MOTION FOR RECONSIDERATION"

The Court, having considered the "motion for

reconsideration" filed by plaintiff Charlotte Pritt, and having

also considered the memoranda filed in support of and in

opposition to said motion, hereby DENIES said motion as

providing no basis for the Court to conclude that it erred in

entering summary judgment for defendants by Order dated

May 15, 2000.

s/

Judge Charles M. Vickers

Circuit Court of Fayette County

ENTERED this 13th day of _June_, 2000.

30a

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on the

3rd day of April, 2001, the following order was made and

entered:

Charlotte Pritt, Plaintiff

Below, Appellant

vs.) No. 29326

The Republican National Committee,

et al., Defendants Below, Appellees

On a former day, to-wit, December 8, 2000, came the

petitioner, Charlotte Pritt, by H. H. Roberts, her attorney, and

presented to the Court her amended petition praying for an

appeal from a judgment of the Circuit Court of Fayette

County, rendered on the 13th day of June, 2000, with the

record accompanying the petition. Thereafter, on the 5th day

of January, 2001, came the respondents, the Republican

National Committee, the National Republican Senatorial

Committee and the West Virginia State Victory Committee,

by Carey, Scott & Douglas, and Michael W. Carey, and

Covington & Burling, Bobby R. Burchfield and Jason A.

Levine, their attorneys, and presented to the Court their

written response in opposition thereto.

Upon consideration whereof, the Court is of opinion

to and doth hereby grant said petition for appeal. Justice

Maynard would refuse.

It is hereby ordered that the above-captioned

proceeding be submitted upon the original record, briefs of

counsel and oral argument if requested by the parties.

i

3la

It is further ordered that the appellant file an original

and nine copies of a brief within thirty days of receipt of this

order; the appellees to file a like number of briefs within

thirty days of receipt of the appellant’s brief, with any reply

brief deemed necessary to be filed within fifteen days of

receipt of appellees’ brief.

A True Copy

Attest: s/

Clerk, Supreme Court of Appeals

32a

APPENDIX D

STATE OF WEST VIRGINIA

IN THE SUPREME COURT OF APPEALS

IN VACATION

Charlotte Pritt, Plaintiff Below, Appellant

vs.) No. 29326

The Republican National Committee,

et al., Defendants Below, Appellees

On a former day, to-wit, July 9, 2001, came the

appellees, the Republican National Committee, et al., by

Carey, Scott & Douglas, and Michael W. Carey, and

Covington & Burling, Bobby R. Burchfield and Jason A.

Levine, their attorneys, and presented to the Court their

motion in writing requesting the voluntary disqualification of

the Honorable Larry V. Starcher, Justice of the Supreme

Court of Appeals of West Virginia, for the reasons stated

therein.

Thereafter, on this day came the Honorable Larry V.

Starcher, Justice of the Supreme Court of Appeals of West

Virginia, pursuant to Rule 29(f) of the Rules of Appellate

Procedure, and notified the Clerk of the Court of his refusal

to voluntarily disqualify himself.

DONE IN VACATION of the Supreme Court of

Appeal this 10th day of July, 2001

Honorable Larry V. Starcher, Justice

33a

Received the foregoing order this 10th day of July,

2001, and entered the same in Order Book No. 142.

A True Copy

Attest: s/

Clerk, Supreme Court of Appeals

34a

APPENDIX E

Supreme Court of Appeals

Charleston, West Virginia

25305

LARRY V. STARCHER

Justice

July 10, 2001

MEMORANDUM

TO: Rory Perry, Clerk

FROM: Justice Starcher

RE: In Re: Appeal No. 00-2519

A Motion to Disqualify Justice Starcher has been

filed asking that I recuse myself “from presiding over or

taking any action in this proceeding.” The motion was filed

on July 9, 2001, pursuant to Rule 29 of the Rules of

Appellate Procedure for the Supreme Court of Appeals of

West Virginia.

The Motion suggests that I should recuse myself from

this matter because I was a candidate in 1996 and

campaigned some with the Plaintiff-Appellant. Furthermore,

it is suggested that I “made comments on the record

seemingly prejudging this appeal” during oral arguments

before the Court on April 3, 2001.

I was a candidate for election to the Supreme Court in

1996, but also were two other sitting justices — Justice Elliott

Maynard and Justice Joseph Albright. It’s also true that I did

comment on the case in Court on April 3, 2001, as did other

35a

justices. Justices are provided briefs before oral argument

and do not come to the Courtroom uninformed. But whether

my inquiries were “prejudicial,” or whether I might have

been playing the “devil’s advocate,” cannot be judged from

the comments standing alone. Regardless, this would not bar

me from sitting as an appellate judge on this case.

I decline to recuse myself from my judicial duties

pursuant to Rule 29 of our Rules of Appellate Procedure

because I neither have any financial or relationship interests

in the matter, nor have I prejudged the legal or factual issues

of the case. Despite my inquiry during oral arguments, and

my being a candidate along with the Plaintiff-Appellant and

two other justices in 1996, I can fairly sit on this matter and

properly, correctly and fairly apply the law, whichever way it

goes.

I respectfully decline to step aside in this matter.

LVS:lw

xc: Other Justices (with motion)

en ee

36a

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on the

2nd of October, 2001, the following order was made and

entered:

Charlotte Pritt, Plaintiff

Below, Appellant

vs.) No. 29326

The Republican National Committee,

et al., Defendants Below, Appellees

This day came the Honorable Elliott E. Maynard,

Justice of the Supreme Court of Appeals of West Virginia,

and notified the Clerk of this Court, pursuant to Rule 29(b) of

the Rules of Appellate Procedure, of his voluntary

disqualification from participating in the above-captioned

matter.

A True Copy

Attest: s/

Clerk, Supreme Court of Appeals

37a

DAVID WELCH ASSOCIATES

Client: WV State Victory Committee

“Record”

TV/ :30 Seconds

WVE.001

VISUAL AUDIO (Voice over with music

bed)

Start close on CP’s faced; BEHIND CHARLOTTE

pull out-to reveal smile PRITT’S CAMPAIGN SMILE

IS A LIBERAL VOTING

RECORD SHE CAN’T HIDE

FROM.

Slow, grainy b&w of CP IN THE STATE SENATE,

with kids. CHARLOTTE PRITT

CG — Proof: 1989 Senate PROPOSED TEACHING

Bill 531 FIRST GRADERS ABOUT

with bill image CONDOMS.

CG white on black: SURPRISED? YOU

Surprised? SHOULDN'T BE.

Adult video store...to close SENATOR PRITT ALSO

up of little girl VOTED TO PERMIT THE

CG: Proof: 1990 Senate SALE OF PORNOGRAPHIC

Bill 184 VIDEOS...TO CHILDREN.

with bill image

Kids at school SHE EVEN VOTED TO

CG: Proof: 1990 Senate ALLOW CONVICTED DRUG

Bill 639 ABUSERS TO WORK IN

with bill image OUR PUBLIC SCHOOLS.

:

38a

Return to CP’s smile and LOOK BEHIND THE SMILE

el etal bale ool cee oe ee

freeze. CHARLOTTE PRITT.

CG: Charlotte Pritt. WRONG ON THE ISSUES.

Wrong for West Virginias WRONG FOR WEST

Paid by West Virginia VIRGINIA.

State Victory Cmte.

I rt rete mre nor meen —_r-werrnenre

39a

APPENDIX F

First Amendment

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among

the several States according to their respective numbers,

counting the whole number of persons in each State,

excluding Indians not taxed. But when the right to vote at

any election for the choice of electors for President and Vice

President of the United States, Representatives in Congress,

the Executive and Judicial officers of a State, or the members

of the Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of age, and

citizens of the United States, or in any way abridged, except

for participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion

which the number of such male citizens shall bear to the

whole number of male citizens twenty-one years of age in

such State.

Section 3. No person shall be a Senator or Representative

in Congress, or elector of President and Vice President, or

40a

hold any office, civil or military, under the United States, or

under any State, who, having previously taken an oath, as a

member of Congress, or as an officer of the United States, or

as a member of any State legislature, or as an executive or

judicial officer of any State, to support the Constitution of the

United States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of each

House, remove such disability.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But neither

the United States nor any State shall assume or pay any debt

or obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or

emancipation of any slave; but all such debts, obligations and

claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.