Opposition Brief — National Republican Senatorial Committee v. Pritt

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

HProme Court, US

FILED

JUL 9 2082

No.s 01-1328 & 01-1331

[_UFPICT Or TIE. CLERK

IN THE |

Supreme Court of the Gnited States

REPUBLICAN NATIONAL COMMITTEE AND

NATIONAL REPUBLICAN SENATORIAL

COMMITTEE,

Petitioners,

Vv.

CHARLOTTE PRITT,

Respondent.

On Petitions for Writ of Certiorari to

The Supreme Court of Appeals

of West Virginia

BRIEF IN OPPOSITION

H. H. Roberts, Attorney

W.V.S.B. No. 3127

Suite 214, Professional Bldg.

1036 Quarrier Street

Charleston, W. V. 25301

(304) 344-9672

Counsel for Respondent

July 12, 2002

No.s 01-1328 & 01-1331

IN THE

Supreme Court of the Gnited States

REPUBLICAN NATIONAL COMMITTEE AND

NATIONAL REPUBLICAN SENATORIAL

COMMITTEE,

Petitioners,

V >

CHARLOTTE PRITT,

Respondent.

On Petitions for Writ of Certiorari to

The Supreme Court of Appeals

of West Virginia

BRIEF IN OPPOSITION

H. H. Roberts, Attorney

W.V.S.B. No. 3127

Suite 214, Professional Bldg.

1036 Quarrier Street

Charleston, W. V. 25301

(304) 344-9672

Counsel for Respondent

July 12, 2002

QUESTIONS PRESENTED

1. Is the decision by the Supreme Court of Appeals of

West Virginia (West Virginia Supreme Court),

which remands the case for further proceedings

consistent with recognized decisions by the Supreme

Court of the United States, a “final judgment” as

contemplated by 28 U.S.C. § 1257(a)?

2. Are there “compelling reasons” for the Supreme

Court of the United States to grant a writ of certiorari

to review a decision of the West Virginia Supreme

Court which decision is not within the parameters

set forth in Rule 10'?

3. Are there compelling reasons for the Supreme Court

of the United States to grant a writ of certiorari

to review a decision of the West Virginia Supreme

Court which would require the Court to review,

de novo, avoluminous_ record designated by the

parties from the lower court and require the Court

to substitute its judgment for that of the West

Virginia Supreme Court which decided the

matter on a 5-0 vote?

' Reference is made to U.S. Supreme Court Rule No. 10,

“CONSIDERATIONS GOVERNING REVIEW ON CERTIORARI.”

theta tite > Ves:

ii

PARTIES TO THE PROCEEDINGS

The following are parties to the proceedings

below:

(1) Plaintiff, Ms. Charlotte Pritt, a school teacher and

the Democratic nominee for Governor of West

Virginia in the 1996 general election.

(2) Defendant, the Republican National Committee

(RNC), the national Republican party official

organization under the United States Federal

Election Commission (FEC).

(3) Defendant, the National Republican Senatorial

Committee (NRSC), a political committee registered

with the FEC under FECA. It is devoted to the

election of Republican candidates to the United

States Senate.’

(4) Defendant, the West Virginia State Victory

Committee (WVSVC), the alter-ego of the NRSC,

having common employees as officers and a common

address. It was organized by the NRSC in October

1996 and registered with the W. Va. Secretary of

State on October 4, 1996. Its sole purpose and

function was to air political advertisements against

the Plaintiff. The WVSVC was dissolved by the

NRSC on April 6, 1998.

2 Federal Election Commission v. National Republican

Senatorial Committee, 761 F. Supp. 813, 816 (D.D.C. 1991).

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ........ccccccccsccscccsceees i

PARTIES TO THE PROCEEDING. .................... ii

Sa A Cr estcsscccccccscccssccccscccecens iii

AR CF Fe ccncccccesscscoscescanescees iv

Se MSR EE iccccbescncncennscocsccetecmnesas l

i SE STE ci ancinesncesionnsnnsttconccnansinns l

PETRIE - cdncecnnnsnchecrssnsunsenscestavescced 2

Ill. CONSTITUTIONAL PROVISIONSG................ 7

IV. STATEMENT OF THE CASE..................... 7

V. SUMMARY OF ARGUMENT..................00+ 10

VI. ARGUMENT ..........cc00e see seeeeseeesececsseeenes 10

Argument in Response to RNC................++. 13

Argument in Response to NRSC............... 16

Fe’ gt Eee 21

2. “Pornographic” allegation..................... 23

3. “Drug abusers” allegation..................... 23

4. “Can’t trust” allegation.................0...00 24

5. “Vote against honoring” allegation..........24

6. “Burning Flag” allegation..................... 26

7. “Pledge of Allegiance” allegation........... 26

VII. SPROUSE ¥. CLAY COMMUNICATIONS......27

Wes, CECE tcnnccsescsccscnsscocincntsemsncenses 28

iV

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc.,

SEF Rie CEO ink beicbexsdnarensssenesas 10, 11, 12, 13

ASARCO Inc., et al. v. Kadish, et al.,

isc dictinsdicesinddianniabeehanssesnens 3

Cox Broadcasting Corporation v. Cohn,

er inccintindnssitbehsssidnasndecdiancascs 3

Fort Wayne Books, Inc. v. Indiana,

iat icacbincccckeiadereardesscanccea 5

Federal Election Commission v. National

Republican Senatorial Committee,

761 F. Supp. 813 (D.D.C. 1991)...........:.seseeeeeeeeees ii

Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657 (1989).............008 13, 14

Hinerman v. Daily Gazette Co. Inc.,

423 S.E.2d. 560 (1992)...... nt ee acsktkeinapaeacs 14

Lake City Corp. v. City of Mequon,

Se Ee I Piccinitcencedeccsnveceecasscesccssces 23

Long v. Egnor, |

EE FE iscadvcknnsnnsnasccnecsavccrascencese 14

Masson v. New Yorker Magazine, Inc.,

SE EE Re i dcncdabiaantshacacrarssenenanses 14,17

Maynard v. Daily Gazette Co.,

i OM a | ee ree 14

Miami Herald Company v. Tornillo,

ly BN ickcskiscananddcecustsanatesscscacvaneencs 4

Pritt v. Republican National Committee,

I Pe OU Diis dna ba sncsenecd denuisdgennsease ]

Pritt v. Republican National Committee, ;

FE iti dcsstccidctccsdcdsnsdecsascadissian l

New York Times v. Sullivan,

BE a anki pd cihincissannexcadecnasuscnedons 14

Painter v. Peavy,

EE hic knecktnsccdsckdacensnsatcssnsnacss 20

Sprouse v. Clay Communications,

PR ROT Ervin cdcssncccevesnctacscassiacses 14, 27

St. Amant v. Thompson,

es TE A tines encsdadsannsnindcscivdcaivans 14, 17

State ex rel. Suriano v. Gaughan,

Ne Ey nei ndisn tsddaceascsssnescsnsaensicue 14

Texas v. Johnson,

ssc ionsnhoxaksnniasisinesbesknennees 26

CONSTITUTION

U.S. Const. Amend. I............ 4, 5, 7, 20, 21, 26, 28, 29

U.S. Const. Amend. IV

STATUTES, RULES AND REGULATIONS

28 U.S.C. § 1257(a)

U.S. Supreme Court Rule 10

W. Va.R.Civ.P. Rule 56(c)

MISCELLANEOUS

W.Va. Senate Bill 531

(March 20, 1989)

W.Va. Senate Bill 184

(March 7, 1990)

W.Va. Senate Bill 639

(February 24, 1988)

W.Va. Concurrent Resolution 4

(January 24, 1991)

W.Va. House Joint Resolution 109

(February 29, 1992)

W.Va. Senate Resolution 31

(March 9, 1991)

W.Va. House Bill 1193

(February 11, 1986)

Blacks Law Dictionary (Third Edition)

BRIEF IN OPPOSITION

This Brief is in opposition to two Petitions

for writ of certiorari for review of a 5-0 decision

rendered by the Supreme Court of Appeals of West

Virginia (West Virginia Supreme Court) in the case of

Charlotte Pritt v. The Republican National Committee,

et al., 557 S.E.2d. 853 (2001).

I. OPINIONS BELOW:

There are three decisions which have _ been

generated by this case to date, namely:

(1) Pritt v. The Republican National Committee,

et al., 1 Fed.Supp.2d 590 (1998), whereby the

District Court remanded the case back to

Fayette Circuit Court on April 16, 1998.

(2) Fayette Circuit Judge Vickers’ order granting

Petitioners’ Motion for Summary Judgment

on May 15", 2000.°

(3) The 5-0 decision by the West Virginia

Supreme Court, filed December 12, 2001,

557 S.E.2d. 853 (2001), which reversed

Judge Vicker’s decision on the basis of the

Court’s de novo review of the record.‘

> See page 25a of the Appendices of both Petitioners’

Petition.

* A copy of this decision is included in both of

Petitioners’ Petitions as “Appendix A”. Respondent’s

Brief will refer to page numbers in Petitioners’ ‘Appendix

A”, the West Virginia Supreme Court decision. E.g. 1a is the

first page of the decision.

2

II. JURISDICTION:

The Petitioners’ section on “Jurisdiction” does

not accurately portray the West Virginia Supreme

Court decision, the facts of the case or the applicable

law as to the question of jurisdiction.

Petitioners contend that the decision of the

West Virginia Supreme Court is a “final judgment” as

contemplated by 28 U.S.C. § 1257(a) and should be

reviewed by awrit of certiorari. Respondent disagrees

with this and contends that the West Virginia

Supreme Court decision is not a “final judgment”.

Black’s Law Dictionary defines “final judgment”.

“Final Judgment is one which puts

an end to a suit”.°

The subject case was remanded by the West

Virginia Supreme Court for trial under guide lines

consistent with prior decisions. No “final judgment”

was rendered. The further proceedings provided for

will give both parties ample opportunity to fully

develop their positions and their respective portions

of the case.

“Under 28 U.S.C. § 1257, this Court has

jurisdiction to review only ‘[f]inal judg-

ments or decrees rendered by the highest

court of a State in which a decision could

be had.’ Because the Colorado Supreme

Court, 633 P.2d 455, remanded this case

> Blacks Law Dictionary, Third Edition, page 1027.

for trial, its decision in not final ‘as an

effective determination.’”

O’Dell, et al. v. Espinoza, et al.,

456 U.S. 430, (1982)

Petitioners cite several decisions as

“exceptions” to the “final judgment” rule. What

transpired in the lower court and the West Virginia

Supreme Court does fall in any of these “exceptions”.

ASARCO Inc., et al. v. Kadish, et al., 490 U.S.

605 (1989), presented a constitutional challenge to

Ariz. Rev. Stat. Ann. 27-234(B). The Court reviewed

and reversed the Arizona Supreme Court decision

that decided the subject statute was constitutional.

The Court noted two “exceptions” to the “final

judgment or decree” rule.

(1) Where “the federal issue is conclusive” and

“the outcome of further. proceedings pre-

ordained” and,

(2) the federal questions that could come to this

Court have been adjudicated by the state court,

and the remaining issues will not give rise to

any further federal question.

Our present case does not involve the

constitutional challenge of a state statute and does

not fall within this two part exception.

Cox Broadcasting Corporation v. Cohn, 420

U.S. 469 (1975) involved “freedom of the press”.

The father of a rape victim brought a civil action

against the Broadcasting company on the basis that they

had violated the Georgia “rape shield” statute by

publishing the name of his daughter. The trial court

4

granted a summary judgment in favor of the father

since there were no issues as to the facts. The

Broadcasting company contested the constitutionality

of the statute since the name of the victim was a

matter of public record. The Georgia Supreme

Court affirmed the lower court and remanded for

further proceedings.

Following a “pragmatic approach” the Court

reviewed the case on Certiorari as a “final decision

or decree” of the states’ highest court involving a

State statute that may be in conflict with the First

and Fourteenth Amendments. The _ state statute

imposed sanctions on a television company that had

accurately reported judicial records maintained in

connection with prosecution. These records were a

matter of public information.

Our present case clearly does not fall inside

the frame work of the Cox “exception” which

involves the constitutionality of a state statute.

In Miami Herald Company v. Tornillo, 418

U.S. 241 (1974) “freedom of the press” was the

issue. The Florida statute in question required

newspapers which “assail the character of a political

candidate” to afford free space for reply by that

candidate. The lower court ruled that the statute

was unconstitutional. The Florida Supreme Court

reversed the lower court and remanded for further

proceedings.

The Court considered the Florida Supreme

Court’s decision as a “final decision” and reversed.

The constitutionality of a statute was the pivotal

issue of the civil claim. The Florida Supreme Court

had made what amounted to a “final decision” in

of FP EN RM BP NY DEEN TLS Sty aI P. r.

this regard and had remanded the case to go

forward on that premise.

In our present case we do not have the

constitutionality of a statute at issue.

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46

(1989) is cited for the proposition that the First

Amendment protection is a “federal policy’ which

merits exception to the “final decision” rule. In that

case, the Indiana RICO statute was _ challenged by the

defendant’s claim that its First Amendment rights

had been denied. Fort Wayne Books had been

charged with repeated violations by distribution of

obscene matter which was treated as a pattern of

conduct and in violation of the RICO statute. Upon

certification, the Indiana Supreme Court ruled the

Statute constitutional.

The Court affirmed the decision and stated that

it was appropriate to review the case “[W]here the

federal issue has been finally decided in the state

courts...” In our present case, the West Virginia

Supreme Court did not finally decide any federal

issue.

Again, we have a state statute involved. The

above citation does not apply to our present case.

All four decisions cited by Petitioners involve

challenge to the U. S. Constitution by a state statute.

Court’s Rule 10, “Considerations Governing

Review on Certiorari” is very instructional as to when

the Court would be expected to exercise its discretion

to review on certiorari. “A petition for a writ of

certiorari will be granted only for compelling reasons.”

6

This case does not satisfy Rule 10 in that we

do not have a situation where a “state court of last

resort has decided an important question in a way that

conflicts with the decision of another state court of last

resort or of a United States court of appeals” as

provided by Rule 10(b).

Nor do we have a situation where “a state

court...has decided an important question of federal law

that has not been, but should be settled by this Court,

or has decided an important federal question in a way

that conflicts with relevant decisions of this Court.” as

provided by Rule 10(c).

The West Virginia Supreme Court merely

addressed the propriety of a lower court’s summary

judgment and remanded with guidance consistent

with decisions of the Supreme Court of the United

States.

Finally, at this juncture of the case, with no

“final judgment” having been rendered, with

prospects that both parties will have full opportunity

to develop their respective portions of the case, with

prospects that there will be opportunities for both

parties to seek review inthe future by the Court of

any constitutional questions that may arise and the

fact that Petitioners have lost no rights nor suffered

any detriment at this time, there is no compelling

reason the Court should review this case.

A review of this case should not be granted

merely on Petitioners’ speculation that in the future,

they may be denied some constitutional protection.

eee re

er, tee A ES

’

Ill. CONSTITUTIONAL PROVISIONS:

Respondent agrees with Petitioners that the

First and Fourteenth Amendment to the United

States Constitution are involved in this case.

Respondent does not agree, however, with

Petitioners’ speculation that by allowing this case

to go forward, a conflict with these Amendments

will develop. Quite the contrary, Respondent is of

the opinion that it is necessary to allow this case to

go forward to protect Respondent’s rights under the

Fourth Amendment.

We must also’ consider the Constitutional

mandate that provides for the election of government

officials. False advertisements about the Respondent

misinformed the electorate. A misinformed

electorate is effectively disenfranchised. This defeats

the “election of government officials” principle. The

principle of “governed by the consent of the

governed” is effectively nullified by a misinformed

electorate.

IV. STATEMENT OF THE CASE:

This case is a common law libel action by a

nominee for a state office against two national

political organizations which, on the eve of an election,

fabricated, paid for and arranged for the broadcasting

of a series of “negative ads” about Respondent that

were false and misleading.

The action below is not against the Respondent’s

opponent, who disavowed the subject advertisements

and ask that they be terminated.

The action below is not against any element of

the media and hence “freedom of the press” is not an

issue.

The action below has been prosecuted solely by

Respondent as an _ individual and no _ political

Organizations of any nature have contributed to its

prosecution, financially, technically or in any other

manner.

Respondent, Charlotte Pritt, was a school teacher

with 17 years experience in the public school system.

She was a former member of the House of Delegates

and the State Senate and was the Democratic nominee

for Governor in the 1996 West Virginia general

election. On the eve of the election, Petitioners

fabricated and published a series of false negative

advertisements about Respondent that libeled, slandered

and defamed her. These advertisements were

broadcast 106 times in Fayette County by two Fayette

County radio stations. The advertisements were also

broadcast state wide by five television stations and

seventeen radio stations.

Respondent brought the subject libel action

in state court ( Circuit Court of Fayette County, West

Virginia) on October 31, 1997. This libel was based on

the false and misleading political advertisements which

were arranged for by NRSC through its alter-ego, the

West Virginia State Victory Committee (WVSVC).

The political advertisements at issue were each

identified in a Report filed with the West Virginia

Secretary of States Office by the Petitioners’ media

services (Mentzer Media) as “ad(s) opposing Pritt”.

Collectively, hereafter, reference will be made to the

SE RB 0 A AMAL RYR GE IELTS AAP NOLTIGE HA NENT PERE IA INI, PTR TO EATEN EAST MY RR OR aE

APP a le

|

:

9

“Ads opposing Pritt” or the “Ads” and include all the

television and radio advertisements that Respondent

has identified from the required Reports made to the

Secretary of State.

Petitioners immediately removed the case to

the District Court for the Southern District of West

Virginia which remanded the case back to Fayette

Circuit on April 16, 1998. The Fayette Circuit Court

set a tnal date of June 5, 2000.

On June 15, 1999, pursuant to W. Va. R.

Civ. P. Rule 56°, Petitioners filed a Motion for

Summary Judgment. Oral hearing was held by the

Fayette Circuit Court on August 26, 1999. By order

dated May 15, 2000, the court granted summary

judgment.

Respondent petitioned for and was granted an

appeal by the West Virginia Supreme Court on

December 8, 2000. The court heard oral arguments

on October 3, 200i and by 5-0 decision, entered on

December 12, 200i, reversed the lower court’s decision

granting summary judgment.

® W.Va.R.Civ.P. Rule 56(c) provides that “The judgment

sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

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

(Emphasis provided)

10

V. SUMMARY OF ARGUMENT:

Respondent’s argument includes the following

points:

1. Respondent disputes Petitioners’ argument

that there is jurisdiction for review of this

case under a writ of certiorari. This is

addressed in the “JURISDICTION” section of

this Brief . :

2. Respondent disputes Petitioners’ argument

that the West Virginia Supreme Court failed

to independently review the record.

3. Respondent disputes Petitioners’ argument

that there is no evidence as to the falseness

of the “Ads opposing Pritt”

4. Respondent disputes Petitioners’ argument

that there is no evidence as to the “actual

malice” of the Petitioners in publishing the

“Ads opposing Pritt’.

5. Respondent disputes Petitioners’ argument

that this case poses a serious and imminent

threat to the First Amendment that requires it

be reviewed under a writ of certiorari.

VI. ARGUMENT:

Repondent’s argument which follows is not in

anyway to be interpreted as deprecating the serious

concerns Respondent has with the question of

jurisdiction .

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986), which is noted twice in the West Virginia

1]

Supreme Court decision, is of great precedential

value to our present case. Liberty Lobby brought a

libel action in D.C. District Court against Jack

Anderson, publisher of the “Investigator” which

published three articles about founder Willis Carto.

This action alleged the articles contained 28

statements and 2 illustrations that were false and

derogatory. On motion by defendant, under Rule 56,

the District Court granted summary judgment. The

Court of Appeals affirmed in part and reversed in

part. The U.S. Supreme Court reversed the Court of

Appeals and remanded the case for further

proceedings. At page 247 the Court stated:

“More important for present pur-

poses, summary judgment will not lie if

the dispute about a material fact is

“genuine,” that is, if the evidence is such

that a reasonable jury could return a

verdict for the nonmoving party.”

At pages 247/248 the Court further stated:

“Our prior decisions may not have

uniformly recited the same language in

describing genuine factual issues under

Rule 56, but it is clear enough from our

recent cases that at the summary

judgment stage the judge’s function is not

himself to weigh the evidence and

determine the truth of the matter but to

determine whether there is a genuine

_issue for trial.”

12

In Anderson v. Liberty Lobby, at page 250, the

Court notes the role of the jury as to the issue of

“credibility”:

“Credibility determination, the weighing

of the evidence, and the drawing of

legitimate inferences from the facts are

jury functions, not those of a judge

whether he is ruling on a motion for

summary judgment or for a directed

verdict.”

; Credibility of Petitioners and those working

for them is an important aspect of Respondent’s

proof that the “Ads opposing Pritt” were false negative

ads that were spawned in a stream of deception.

At least seven areas of deception by Petitioners

can be identified relative to the “Ads opposing

Pritt’’.

(1) In order to convince them to broadcast the “Ads”,

Petitioners’ political consultant, David Welch (Welch)

sent a letter to the various TV and Radio stations

prior to their broadcast that distorted Respondent’s

legislative record.

(2) Shortly after the “Ads” commenced, Heeisonees’

Welch, the author of the “Ads”, made a false

statement to the press that the “Ads” were paid for by

West Virginia donors.

(3) The “Ads” indicated that they were paid for by the

WVSVC when in fact they were paid for by a loan that

the NRSC received from Signet Bank.

(4) The use of WVSVC as an alter-ego of the NRSC

hid the real identity of the Petitioners and projected a

13

false image that the “Ads” were produced by West

Virginians.

(5) The “Ads” purported to set forth Respondent’s

legislative record when in fact they were a gross

distortion of the record that reached absurd results

and omitted significant parts of her record which

deceived the voting public.

(6) Twelve days after the election, Welch, falsely

stated to the press that “the state business community

decided to do the independent advertising campaign

against Pritt.”

(7) On deposition, Welch professed that the “Ads”

were an effort to truthfully report Respondent’s

record yet he admitted that he used the “part of the

voting record that perhaps would be most important

to the people who are sponsoring the ad.”

The sin of “omission” can be as great and

as effective as the sin of “commission” when the

design of the actor is to deceive.

Argument in Response to RNC:

As required by law, the West Virginia

Supreme Court reviewed the designated record de

novo, considered the parties’ briefs and conducted

an oral hearing on October 3, 2001 and, on December

12, 2001, the Court unanimously decided that the

lower court’s decision should be reversed on_ the

basis that that there were genuine issues of material

fact which should be presented to a jury.

The Court remanded the case back to the

Circuit Court of Fayette County for further proceedings

and provided a survey of the applicable law as guidance

14

for continuation of the litigation including New York

Times v. Sullivan’, Anderson v. Liberty Lobby*, Harte-

Hanks Communications, Inc. v. Connaughton’, St.

Amant v. Thompson’ 0’ Masson v. New Yorker Magazine,

Inc.", Sprouse v. Clay Communications’? , Hinerman

v. Daily Gazette Co. Inc. ol? Long v. Egnor' * | Maynard

v. Daily Gazette Co.'° and Suriano’® .

The following are misleading representations

made by the RNC in their Petition concerning the

West Virginia Supreme Court decision:

(1) At page 11, line 10 of their petition, the RNC

States that “the Supreme Court of Appeals

failed to conduct an ‘independent review’ of

the record to assure that it contained the

requisite clear and convincing evidence of -

actual malice.” In the West Virginia

Supreme Court decision at page 10a, line 5

the Court stated:

7 New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

8 Anderson v. Liberty Lobby, 477 U.S. 242 (1986)

° Harte-Hanks Communications Inc. v. Connaughton,

491 U.S. 657 (1989).

'© St. Amant v. Thompson, 390 U.S. 727, (1968).

'' Masson v. New Yorker Magazine, Inc.,

501 U.S. 496 (1991).

'2 Sprouse v. Clay Communications, Inc.,

211 S.E. 2d. 674 (1975).

'3 Hinerman v. Daily Gazette Co., , 423 S.E.2d 560 (1992)

'* Long v. Egnor, 346 S.E.2d 778 (1986)

'S Maynard v. Daily Gazette Co., 447 S.E.2d 293 (1994)

'© State ex rel. Suriano v. Guaghan,

480 S.E.2d 548 (1996)

15

“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.”

The challenged decision (and “Syllabus by the

Court”) makes reference to “clear and convincing” or

“convincing clarity” no less that ten times. It can

hardly be said that the West Virginia Supreme Court

ignored or was unmindful of this principle.

(2) At page 19, line 11, the RNC states

“Although the court recognized the general applicability

of this heightened standard of proof, it deemed the

standard ‘no longer relevant’ because the case ‘cannot

be disposed of summarily. App.-20a n. 14.’”

This footnote concerned the West Virginia

Supreme Court’s discussion as to whether “falsity

must be shown by clear and convincing evidence.”

What the Court actually said was:

“Although no longer relevant to the instant

proceeding given that this case cannot be

disposed summarily, we note that a public

official opposing a summary judgment must

establish his/her prima facie case of

defamation, and the elements thereof, by

clear and convincing evidence.” (emphasis

supplied).

By deleting this section of the footnote, the

Petitioner totally reversed what the Court said.

16

(3) Again, at page 21, line 10, the RNC restated

this distortion of footnote 14 in support of the

proposition that the West Virginia Supreme Court

failed to observe the requirement of proof by “clear

and convincing evidence” placed on a public figure.

(4) At page 23, line 11, the RNC stated, “As

noted above, the West Virginia court conducted no

factual review and failed to apply the proper evidentiary

standard.” What the Court said at page 15a, line 12

was, “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.” How can the Petitioner conclude the

“court conducted no factual review”.

Argument in Response to NRSC:

In support of their Motion for Summary

Judgment and in support of their Petition for Writ

of Certiorari the NRSC contends that the “Ads

opposing Pritt” were truthful. An example of this oft

repeated theme is at page 7, line 12 of the NRSC’s

Petition. “Mr. Welch believed that the statements in

the advertisements were ‘[a]bsolutely truthful’ and

presented a ‘fair and accurate portrayal of

[Respondent’s] voting record’ on each one of the bills

and amendments at issue.”

At page 7, line 29, “Having completed his

independent review, Mr. Engle was satisfied that the

advertisements ‘truthfully portrayed’ both the legislation

at issue and Respondent’s vote on that legislation.”

17

The NRSC’s proof of “truthfulness” includes

only (1) statements made by Welch in his

deposition taken by the Respondent, (2) Craig

Engle’s affidavit and (3) distortions of answers by

Respondent in her deposition. Other than _ this,

Petitioners had no proof in regard to their defense

that the “Ads opposing Pritt” are true. Petitioners,

through Welch and Engle, were the “fabricators” of

the “Ads opposing Pritt”, as distinguished from merely

repeating the allegations in the “Ads” such as a

newspaper reporter would do.

“The defendant in a defamation action

brought by a public official cannot, however,

automatically insure a favorable verdict by

testifying that he published with a belief

that the statements were true. The finder of

fact (a jury) must determine whether the

publication was indeed made in good faith.

Profession of good faith will be unlikely to

prove persuasive, for example, where a story

is fabricated by the defendant, is the

product of his imagination...” (Emphasis/

parenthesis added). St. Amant v. Thompson,

390 U.S. 727, 730 (1968).

The definition of falseness is no mystery. In

Masson v. New Yorker Magazine, 501 U.S. 496, 517

(1991) the Court answers “the question on falsity”.

“The common law of libel takes but one

approach to the question of falsity,

regardless of the form of the

communication. See Restatement (Second)

of Torts 563, Comment c (1977); W.

18

Keeton, D. Dobs, R. Keeton & D. Owen,

Proser and Keeton on Law of Torts 766 (5"

ed. 1984)....Put another way, the 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.’”

As the allegations in the “Ads opposing Pritt”

are compared, ona one by one basis, with

Respondent’s legislative record on the subjects, we

are left with the inescapable conclusion that the

allegations in the “Ads” “have a different effect on

the mind of the” listener or viewer “from that which

the pleaded truth” of the record would produce.

Petitioners postulate that the lower Court’s

decision is in some manner superior to that of the

West Virginia Supreme Court. What they don’t tell us,

however, is that Judge Vickers did not write the order

granting summary judgment. Judge Vickers simply

entered an order that Petitioners prepared and

submitted without solicitation, approximately six

months earlier.

In the pre-trial hearing on May 11, 2000, four

days before entry of the order granting summary

judgment, Judge Vickers expressed concern about “not

having a clerk...the volume of the materials contained

in the case” and it being “a little bit troubling to the

Court when we’ve got to, in essence try these cases

twice, oftentimes.” His entry of summary judgment

was not based on independent review of the record

but instead was motivated by a desire to send the

19

case to the West Virginia Supreme Court and get the

benefit of their ruling to avoid “try(ing) these cases

twice”.!”

Throughout their Petition, the NRSC attacks

the West Virginia Supreme Court decision with the

proposition that the Court did not conduct an

independent review of the record below. This is

without merit.

At page 5a, the W. Va. Supreme Court stated:

“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.”

Starting at page 9a, The West Virginia Supreme

Court devoted one full section of its decision to the

standard of review required for the case:

“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.

* Designated Record to the West Virginia Supreme

Court at page 41.

20

We 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 review de novo.” Syl.

Pt. 1, Painter v. Peavy, 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.”

See also page 1Sa:

“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.”

Including the three instances above, the West

Virginia Supreme Court decision refers to their

review of the record a total of six times. They also

recite certain evidence taken from the record. This

hardly sounds like they failed to conduct an

independent review of the record before making

their decision.

The proposition that the United States

Supreme Court should grant certiorari to protect the

First Amendment at this time is without merit.

This case does no violence to the First Amendment

nor does it threaten to do so. It is necessary to allow

21

the case to be fully developed to allow the

measuring of the Respondent’s Fourth Amendment

rights against the First Amendment claim.

The First Amendment, part of the “Bill of

Rights”, is analogous to the English “Magna

Charta” of 1215 and the English “Bill of Rights”

of 1689. These three documents were written and

designed to protect the people from action by the

government; the Crown in the case of the England

and the Federal Government in the case of the

United States. The First Amendment was originally

written and designed to give the citizens of the

United States (the people) the freedom to speak their

mind without fear of reprisal from the Federal

government. The First Amendment is not now,

never has been, nor ever was intended to be a

“license to lie”. It was never intended to deprive

individuals of their right to defend their reputations

in actions of libel.

Petitioner, NRSC, includes excerpts of the

“record” which they contend demonstrates that the

“Ads opposing Pritt” are true. These excerpts and

their comparison with the “Ads opposing Pritt” shows -

that the “Ads” are literally false. The following

response to the NRSC’s Petition is parallel

numbered.

1. To show that the allegation “In the State

Senate, Charlotte Pritt proposed teaching first

graders about condoms” is true, the NRSC refers to

Senate Bill 531. (See page 20 of the NRSC’s Petition).

22

Respondent was approached by her constituents

about legislation of this nature and were sent to the

Legislative Services to prepare the bill. The result,

Senate Bill 531, which Respondent did not draft but

did sponsor. Comparing the language of the

“condom allegation” with the language of Senate

Bill 531 shows the allegation is literally false.

There is no mention of “teaching first graders about

condoms”. What was to be taught was to be

determined by the school boards and approved by the

parents. There was no such proposal by Respondent.

“(T]he state board of education shall

cause to be taught in all of the public schools

of this state the subject of human

growth and development, including the social

aspects, contraception, diseases and all other

special instruction deemed appropriate and

necessary by the state board. The state

board shall determine the necessary time of

instruction of human growth and development

which shall __be___ provided __to __ grades

kindergarten through twelve. Textbooks on

the subject of human growth and development

adopted for use in the public schools of the

state_shall contain appropriate material for

teaching that subject.

An opportunity shall be afforded to the

parent or __ guardian of a child subject to

instruction of the _human_ growth and

development course to examine the course

curriculum requirements and materials to be

used in such instruction. (Underscore/italics

provided).

23

It is absurd to conclude that the

various school boards and the parents, all of whom

would be involved in the decision making process,

would determine that Bill 531 was a proposal for

“teaching first graders about condoms.” Itis absurd

to contend that proposed Bill 531 could truthfully

be interpreted to be a proposal by Respondent for

“teaching first graders about condoms.”

The Uniform Statute and Rule Construction Act

§ 18(a) states: “A statute or rule is construed so as to

avoid ‘an unconstitutional, absurd, or unachievable

result.” Lake City Corp. v. City of Mequon, 558

N.W.2d 100 (1997) notes “Itis a fundamental rule of

statutory construction that any result that is absurd

or unreasonable must be avoided.”

At page 21 the NRSC is “boot strapping” it

by distorting Respondent’s deposition and suggest

that she agreed that “sex education” for first

graders included “instruction on ‘contraception’”.

2. At page 22 the NRSC cites Respondent’s

1990 vote against an amendment to Senate Bill 184

to support the allegation that she “voted to permit

the sale of pornographic Videos to children.” This is

a misinterpretation of the phrase “video movie which

is rated ‘X’”. In 1990, “X” rated movies by the

Movie Industry were the equivalent of today’s PG-

17 movies and were not pornographic. In 1990,

“XXX" movies were considered as pornographic.

The television version of this “pornographic

allegation” completes the deception of this allegation

with a subliminal back drop that shows a red

3. At page 22, the NRSC cites a vote by

Respondent against a proposed amendment to Senate

Bill 639 as proof of the truthfulness of the

allegation that “She even voted to allow convicted

drug abusers to work in our public schools.” This

is literally false. No mention of the employment of

“drug abusers in the public schools” is mentioned

in the amendment. The false distortion of the

meaning of her vote on this amendment is further

apparent by the fact that a majority of the Senate

voted with her against this amendment. It is

absurd to say that the W.Va. Senate voted to allow

the employment of “drug abusers in the public

schools.”

4. At page 23, the NRSC makes a bizarre

effort to justify the conclusion that “... parents can’t

trust Charlotte Pritt to protect our children...”

On deposition, David Welch simply explained

that since Charlotte Pritt had (1) proposed the

teaching about condoms to first graders, (2) had

voted for the sale of pornographic videos to children

and (3) had voted to allow drug abusers to work in

the public schools, parents couldn’t trust her to

protect their children. This allegation is based on

the absurd, false distortions of the Respondent’s

legislative record.

Charlotte Pritt is a school teacher. The

allegation that “parents can’t trust Charlotte Pritt

to protect our children” is libel per se.”

5. At page 24, the NRSC relies on

Respondent’s vote against Concurrent Resolution 4

25

(CR 4) to support the allegation “Charlotte Pritt

voted against honoring the men and women of West

Virginia who fought in the Gulf War.”

CR 4 was a Resolution by the Senate that, in

January of 1991, encouraged then President Bush to

take steps to restore self government to Kuwait. The

Senate Journal preliminary language, on page 57,

dated January 14, 1991, is as follows:

“House Concurrent Resolution No. 4—Urging the

President and the Congress of the United States to

develop a policy to stop aggression by negotiation,

or by force only if necessary, in order to restore

self-government to Kuwait and stabilize relations of

all countries in the Middle East.”

The portion of CR4 which the NRSC refers

to was an amendment to the original resolution.

The purpose of CR 4 was not to “honor the men

and women of West Virginia who fought in the

Gulf War”. This language in the CR 4 was

superfluous and was added to encourage passage of

the Resolution. Respondent voted against U. S.

Military involvement in the Mid-East, not against

honoring the West Virginia Service men and

women.

Later, the Gulf War situation was revisited

-by Legislature in February, 1992. House Joint

Resolution No. 109 (HJR 109), a Veteran’s Bonus,

most of which went to the Gulf War veterans, was

passed by the Legislature. Respondent voted for

and spoke in favor of this bonus.

This is another example of deception by

omission. To reach the conclusion presented by the

26

“Gulf war allegation”, Petitioners selectively ignored

the real purpose of CR4 and ignored Respondent’s

vote for HJR 109 which “honored” the Gulf War

Veterans by giving them a bonus.

6. At page 26, the NRSC distorts the effect

of Senate Resolution 31 (SR 31). This resolution

was not intended to “allow the burning of the

American Flag”. Quite simply, it was intended to

ultimately lead to “criminalization” of the burning

of the Flag. Prior to this the Court had addressed

this question in the case of Texas v. Johnson’®

where the Court said the “burning of the flag...is

expressive conduct” protected under the First

Amendment freedom of speech. The question before

the Senate was not the “allowing of the burning of

the Flag” The question was whether to pass a

resolution which would have encouraged the

criminalizing of the burning of the flag.

7. At page 27, the NRSC _ refers. to

Respondent’s vote against House Bill 1193 (HB

1193). This Bill made it mandatory for “the Pledge

of allegiance to the United States flag in public schools

at the start of every instructional day”. It also

exempted students who for religious or moral

reasons felt they could not make this pledge. An

amendment was proposed that excused teachers on

the same basis on which students were excused. The

Respondent voted for this amendment but it was

defeated. Respondent voted against the bill since it

did not provide for excusing the teachers. Delegate

'8 Texas v. Johnson, 491 U.S. 397 (1989).

27

Casey spoke explaining the vote against the Bill was

because to “require the teachers to participate is

unconstitutional in addition to being illogical”.

VII. SPROUSE V. CLAY COMMUNICATIONS:

The Petitioners cite a total of 94 decisions in

their Petitions, including 29 citations that involve

state court decisions. One decision, Sprouse v. Clay

Communications, Inc., 211 S.E.2d. 426, is noticeable

absent, notwithstanding that this decision was cited

in all prior briefs by the Petitioners.

Sprouse was an attorney with approximately

17 years experience. He was the Democratic

nominee for governor in 1968. On the eve of the

election the Charleston Daily Mail (Daily Mail), owned

by Clay Communications, Inc., fabricated and published

a series of false negative articles about Sprouse that

libeled, slandered and defamed him. The Daily Mail

had many readers in Fayette County and was widely

distributed throughout the state.

Sprouse brought a libel action in state court

(Circuit Court of Fayette County, West Virginia).

Sound familiar?

After a jury tnal, Sprouse’ prevailed and

judgment was entered for the jury award.—Clay

Communications appealed resulting in the decision

cited above. Clay Communications petitioned the

United States Supreme Court for a writ of certiorari.

The American Newspaper Publishers Association were

granted leave to file an amicus brief. A writ of

certiorari was denied. See 423 U.S. 882.

28

Sprouse was one of the first decision to

determine that New York Times v. Sullivan applied to

a candidate for public office. It was also one of the

first decisions requiring that “actual malice” be proven

by “clear and convincing evidence”. New York Times

v Sullivan involved elected law enforcement

officials who were granted a jury award against the

Times. The Times decision did not use “clear and

convincing” but instead concluded “lacks the

convincing clarity which the constitutional standard

demands”.'? .

The Sprouse decision is so parallel to our

present fact scenario that is unconscionable to omit

discussion of it in a brief concerning this case.

VIII. CONCLUSION:

Respondent concludes with the following:

(1)The West Virginia Supreme Court’

decision is not a “final Judgment” as contemplated by

28 U.S.C. § 1257(a).

(2)There is no “compelling reason”, as

-contemplated by Rule 10, for the Court to review

this case by granting certiorari.

(3) The RNC and NRSC Petitions do not

fairly portray the West Virginia Supreme Court

decision and are misleading.

'9 New York Times v. Sullivan, 376 U.S. 254, 285/286 (1964)

29

(4) The NRSC Petition does not accurately

portray the “facts” of this case and is misleading.

(5) A writ of certiorari should not be granted

on _ speculation by the Petitioners that there may, in

the future, be some violation of their rights

protected under the First Amendment.

(6) The “Ads opposing Pritt” were not “robust

political discussion” as protected by the numerous

First Amendment decisions. These “Ads” were pure,

unadulterated character assassination of a candidate

for a state office, by a national political organization

that had unlimited funds, in an effort to control a state

election.

(7) The proof of falseness of the “Ads opposing

Pritt” is demonstrated by: (a) Comparison of

Respondent’s record with the “Ads”, (b) Respondent’s

point by point response to the NRSC at pages 21

through 27, (c) the testimony of witnesses Withers

and Sattes which was improperly excluded by the

lower court and (d) the testimony of Respondent.

(8) The proof of “actual malice” is demonstrated

by (a) David Welch’s admission that he only used

the part of Respondent’s record that would be of

interest to the Petitioners, (b) the refusal by the

Petitioners to consider terminating the “Ads opposing

Pritt” when requested todo so by her opponent

(c) the pattern of deception surrounding the broadcasting

of the “Ads” which destroys the credibility of the

Petitioners and supports the conclusion that they did

30

know the “Ads” were false or did publish them

with willful disregard of their truth or falsity.

(9) It is necessary to let the subject case go

forward and allow the parties to fully develop their

portions of the case in order to protect the

Respondent’s rights under the Fourth Amendment.

(10) Petitioners’ position that greater weight

should be given to the Circuit Court’s decision

granting Summary Judgment than the decision by the

West Virginia Supreme Court reversing that decision

and remanding for trial is unfounded.

(11) The “guidance” set forth in the West

Virginia Supreme Court’s decision assures that the

case will be tried under the applicable law as found

in the various decision by the United States

Supreme Court. This case does not threaten to do

any violence to the First Amendment.

For the foregoing reasons, a writ of certiorari,

summarily reversing the judgment of the West

Virginia Supreme Court, should not be granted.

Respectfully submitted,

4]. A. Roberts

H. H. Roberts

W.V.S.B. No. 3127

Suite 214, 1036 Quarrier St.

Charleston, W. Va. 25301

July 12, 2002 (304) 344-9672

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.