Opposition Brief — National Republican Senatorial Committee v. Pritt
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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.