Reply Brief — National Republican Senatorial Committee v. Pritt

Supreme Court. U.S.

(%) | FILES

| No. 01-1331 JUL 24 2002

IN THE

CLERK

Supreme Court of the Gnited States

NATIONAL REPUBLICAN SENATORIAL

COMMITTEE et ail.,

Petitioners,

CHARLOTTE PRITT,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Appeals

of West Virginia

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Of Counsel:

MITCHELL R. BERGER

MATTHEW F. STOWE

UGO COLELLA

PATTON BOGGS LLP

2550 M Street, N.W.

Washington, D.C. 20037

(202) 457-6000

* Counsel of Record

July 24, 2002

BENJAMIN L. GINSBERG *

PATTON BOGGS LLP

2550 M Street, N.W.

Washington, D.C. 20037

(202) 457-6000 _

ALEXANDER N. VOGEL

General Counsel

NATIONAL REPUBLICAN

SENATORIAL COMMITTEE

425 Second Street, N.E.

Washington, D.C. 20002

(202) 675-6000

Counsel for Petitioners

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

iF \N@

ee

i

TABLE OF CONTENTS

Page

PETITE TE TRS Be cesksnpsacectaprnncsentiaetsnerssreaiinnssininnss ]

I. THE WEST VIRGINIA SUPREME COURT’S

DECISION IS “FINAL” WITHIN THE MEANING

4 LTR RoR 2 bse, | RRSP kre omen Se ena rE Oar 3

II. THE WEST VIRGINIA SUPREME COURT FAILED

TO CONDUCT THE CONSTITUTIONALLY

REQUIRED “FRESH EXAMINATION OF

CREAR FP BIR casinsapnstinecinsicassnsskennpapnapctaniniacssadsies 5

III. THE RECORD CONTAINS NO EVIDENCE

OF ACTUAL MALICE... .....ccoscessasssoossass SS BATS ee 7

CONCLUSION

ll

TABLE OF AUTHORITIES

CASES

Page

Bose Corp. v. Consumers Union of the U.S., Inc.,

466 U.S. SBS CRIB) nccinissainnsrsiiniintncsaniaclaannianddetniamantann 6

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CUFT) scnsscsnewsseninsnstiigancinainieetinaienniniaaaaamaaaaal 3,4

Eu v. San Francisco County Democratic Central

Committee, 489 U.S. 214 (1989) oo... cece eceeeseeeeeeeees 9

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

(BTID D a s1+i:xscsascnnanensioisanicitnamcdehadialagaadaaalaaMinanmiaa 3,4

Harte-Hanks Communications, Inc. v. Connaughton,

SO US. GS-1 CU csisunniccsiaeaieaal 6, 7,9

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group

Of Bantam, SUS UES... SSF CRG ED sicciecinnicsstnnininasataiennicianiian 5

Major League Baseball Players Ass’n v. Garvey, 532

US. SOG CQGB1 ) Crete COGN) osc cisesccerincinccsansnnraiaccanennesens 6

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

CRIED ssnitsenccsoictehalnesahadcapanaiananecess slieiiabcntanliciaaonbininsic 3

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241

CU PGD ssincssictssiconisnioniiaqrinainaiasieliadigiiaiiae daa 4

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

FOP E sineshisirisesssiciecdilatieasaiaidaguieuieghmaatinaaanaaa 4,5, 6,8

Sprouse v. Clay Communications, Inc., 211 S.E.2d

674 (W. Va.), cert. denied, 423 U.S. 882 (1975)......9, 10

TXO Prod. Corp. v. Alliance Resources Corp., 509

RAs WES CUTIE <ninissccestniiatiiesentanenabaaigaiiaaeaimamniiisials 6

ill

TABLE OF AUTHORITIES—Continued

United States v. Bass, 122 S. Ct. 2389 (2002) (per

4

IIIT Cini dul.a la aandneseerasaitipitigheghweanibeinbeniaianasnchenateaniath 5

STATUTES, RULES AND REGULATIONS

I nc iad ous asditcnaalecla 1,3

ARGUMENT IN REPLY

For some four decades, this Court has mandated two

constitutional screens for meritless defamation suits brought

by public figures, which the West Virginia Supreme Court

ignored. Those two screens are mutually reinforcing, and

require (1) independent appellate review of the record, and

(2) clear and convincing proof of actual malice. Petition for

Certiorari (“Pet.”), at 11-12. The West Virginia Supreme

Court made no independent review of the record on which

the trial court granted summary judgment to Petitioners.

Instead, the court mandated a jury trial based on the mere

fact—present in every summary judgment record—that the

parties disagreed over the legal significance of undisputed

facts.

Failure to correct that error at this stage will neuter

the independent review requirement, reducing it to a

toothless doctrine without a real world role. Moreover, if

litigants’ mere disagreement over the fairness of electoral

advertisements is alone enough to secure a jury trial, then

core political speech will be impermissibly chilled.

Respondent’s attempted defense of the West Virginia

Supreme Court decision is insubstantial, and denial of

immediate review will undermine federal policy.

First, this Court has jurisdiction under 28 U.S.C. §

1257(a). Refusal to review the West Virginia Supreme Court

decision before trial would “seriously erode [the] federal

é' Petitioners National Republican Senatorial Committee and the

West Virginia State Victory Committee do not discuss Respondent’s

arguments directly solely to the separate petition filed by the Republican

National Committee (“RNC”) on March 7, 2002 (Docket No. 01-1328).

Petitioners understand that the RNC intends to file its own Reply Brief to

address those issues.

2

policy” of determining the proper scope of First Amendment

protections for those engaged in core political speech.

Second, the West Virginia Supreme Court engaged in

an empty exercise of articulating constitutional standards

without acting upon them. The West Virginia court was

required to conduct a “fresh examination of crucial facts” to

determine if a jury could find clear and convincing evidence

of actual malice. Pet. at 16-18. Instead, the court abdicated

that responsibility, holding that the appellate role was

satisfied—and that further factual review should be

relinquished to the jury—so long as the parties disagreed

about whether political speech was a product of actual

malice. Independent review is rendered meaningless when,

as here, the appellate court provides no clue about the facts

considered sufficient to support a jury finding of actual

malice.

Third, the West Virginia Supreme Court’s failure to

conduct a “fresh examination of crucial facts” simply masked

Respondent’s failure to proffer facts from which a jury could

find clear and convincing evidence of actual malice. The

record evidence on that issue is not “voluminous,” Brief in

Opposition (“Opp.”) at i, but is vacuous, as the trial court

held in granting summary iudgment. Under this Court’s

precedents, the only evidence relevant to actual malice is the

state of mind of the two individuals involved in creating and

publishing the advertisements. Offering only mighty

rhetoric, Respondent cannot show how a sharp debate over

her legislative vote record amounts to proof from which a

jury could find that Petitioners in fact knew that they had

falsely described those votes.

3

I. THE WEST VIRGINIA SUPREME COURT’S

DECISION IS “FINAL” WITHIN THE

MEANING OF 28 U.S.C. § 1257(a).

Under this Court’s “pragmatic” approach, the state

court judgment is “final” for purposes of 28 U.S.C. § 1257(a)

jurisdiction. Pet. at 3-4; Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 486 (1975). This case fits squarely within the

fourth Cox category of judgments that are “final even though

further proceedings are pending in the state courts.” Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46, 54-55 (1989);

Cox, 420 U.S. at 476-87. Specifically, here:

(1) “the party seeking review . . . might

prevail on the merits on nonfederal grounds,

thus rendering unnecessary review of the

federal issue by this Court”; (2) “reversal of

the state court on the federal issue would be

preclusive of any further litigation on the

relevant cause of action”; and, (3) “refusal

immediately to review the state-court

decision might seriously erode federal policy

Cox, 420 U.S. at 482-83; accord Fort Wayne, 489 U.S. at 55-

56. Respondent’s contention that the West Virginia Supreme

Court’s decision is not “final” merely because this case does

not involve the constitutionality of a state statute or a media

defendant, Opp. at 2-5, 8, thus has no basis in this Court’s

précedents.

First, Petitioners could prevail at trial on a-non-

federal ground if Respondents do not prove that the

advertisements were false. Pet. App. 17a-19a; see, e.g.,

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510,

516-17 (1991) (falsity an issue of state law). Such a finding

would render unnecessary review of the federal issue of

whether Respondent could establish actual malice by clear

4

and convincing evidence. See Fort Wayne, 489 U.S. at 56;

Cox, 420 U.S. at 485.

Second, summary reversal by this Court, reinstating

the trial court’s summary judgment in favor of Petitioners,

would terminate this litigation in its entirety. Pet. at 3-4; see

Cox, 420 U.S. at 485-86 (review proper where reversal of

state supreme court would result in “no trial at all”).

Third, declining review at this stage will “seriously

erode federal policy” because “[a]djudicating the proper

scope of First Amendment protections has often been

recognized by this Court as a ‘federal policy’ that merits

application of an exception to the general finality rule.” Fort

Wayne, 489 U.S. at 55 (and authorities cited therein).

Independent review and the clear and convincing actual

malice standard are rules of federal constitutional law, which

ensure that the First Amendment is afforded sufficient

breathing space to promote the robust and wide-open

exchange of ideas that lies at the heart of our system of self-

government. Pet. at 11-12, 28-29.

The West Virginia Supreme Court’s published

decision holding that a public-figure defamation plaintiff can

survive summary judgment by merely “repeatedly and

continuously” disputing the facts regarding actual malice,

Pet. App. 15a, empties these constitutional requirements of

all content. Pet. at 17-18. That harm is not “speculat[ive],”

Opp. at 6, 29, but rather presents a real and present threat to

First Amendment freedoms in political campaigns conducted

in the State of West Virginia. Pet. at 4, 29-30; see Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247 n.6

(1974) (“[I]t would be intolerable to leave unanswered” a

constitutional question that affects “upcoming ... elections”).

A full-blown trial of insubstantial defamation claims can

have as chilling an effect on free political debate as an

adverse judgment itself. As this Court stated in New York

Times Co. v. Sullivan, 376 U.S. 254 (1964):

—

5

“[W]Jould-be critics of official conduct may

be deterred from voicing their criticism,

even though it is believed to be true and

even though it is in fact true, because of

doubt whether it can be proved in court or

the fear of expense of having to do so. They

[will] tend to make only statements which

‘steer far wider of the unlawful zone.’”

Id. at 279; Pet. at 29.

II. THE WEST VIRGINIA SUPREME COURT

FAILED TO CONDUCT THE

CONSTITUTIONALLY REQUIRED “FRESH

EXAMINATION OF CRUCIAL FACTS.”

Respondent does not dispute that: (1) as a matter of

federal constitutional law, an appellate court reviewing a

grant of summary judgment must conduct a “fresh

examination of crucial facts” for clear and convincing

evidence of actual malice, Pet. at 11, 13-18 (citing, inter alia,

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of

Boston, 515 U.S. 557, 567 (1995) (emphasis added)); and,

(2) the West Virginia Supreme Court failed to mention any

fact—as opposed to the parties’ disagreement about the

record—from which a jury could find actual malice by clear

and convincing evidence. Jd. These concessions alone

warrant error correction in the form of summary reversal

because the West Virginia Supreme Court’s decision is a

“demonstrably erroneous” application of federal law. Id. at

12-18; see also, e.g., United States v. Bass, 122 S. Ct. 2389,

2389 (2002) (per curiam) (summary reversal warranted

where lower court- decision was “contrary to” this Court’s

precedent and “threaten[ed]” a “constitutional function” of

the executive).

s

Independent review is more than an empty slogan,

and requires actual effort by an appellate court to search the

record and identify the facts that would sustain a jury finding

6

of actual malice. Pet. at 11, 13-18. It was therefore

inadequate for the West Virginia Supreme Court merely to

mouth the words “review de novo,” “plenary review,” and

“upon a review of the record.” Pet. App. 9a, 15a; Opp. at 19-

20. Confining itself to that boilerplate litany of summary

judgment standards, the West Virginia Supreme Court did

not even recite the rule of independent review,” let alone

apply it. This Court has made clear that “the state courts

must do more than recite the constitutional rule. They also

must apply it, faithful to its letter and cognizant of the

principles underlying it.” TXO Prod. Corp. v. Alliance

Resources Corp., 509 U.S. 443, 499 (1993) (O’Connor, J.,

dissenting); see also Major League Baseball Players Ass’n v.

Garvey, 532 U.S. 504, 510 (2001) (per curiam) (summary

reversal appropriate where lower court “recited” the relevant

iegal standard, but failed to apply it).

This Court—and all of the federal Circuit Courts of

Appeals that have addressed the issue on appeals from a

grant of summary judgment—have applied the rule of

independent review by discussing whether the facts proffered

by the public-figure plaintiff could meet the constitutional

threshold of clear and convincing evidence of actual malice.

Pet. at 16-18 & nn.10-11. The West Virginia Supreme Court

stands alone in its striking departure from these clear

precedents: There is no published decision from the federal

courts in which a public-figure defamation case is remanded

for trial without any discussion whatsoever of the evidence

regarding actual malice. |

: Mimicking the West Virginia Supreme Court, Respondent also

does not cite or discuss the rule of independent review set out in Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984), or in

Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989)

and New York Times Co, 376 U.S. 254—two cases that Respondent

highlights. Opp. at 14.

7

Respondent glosses over the West Virginia Supreme

Court’s extraordinary decision, casually stating that the court

met its constitutional obligation of independent review

because it “recite[d] certain evidence taken from the record.”

Opp. at 20. To the contrary, the only “evidence” cited by the

West Virginia Supreme Court concerned the exclusion of

unspecified “deposition testimony,” Pet. App. 16a n.10; Pet.

at 18 n.12, which addressed falsity, not actual malice.

Compare Pet. App. 16a n.10 (criticizing trial court for

excluding portions of Respondent’s evidence) with id. at 27a

(excluding Respondent’s “only record evidence concerning

falsity ....° (emphasis added)).

Il. THE RECORD CONTAINS NO EVIDENCE OF

ACTUAL MALICE.

Bravado aside, Respondent cannot seriously suggest

that there is a “voluminous record” on the issue of actual

malice. Opp. at i. The standard is a subjective one, focusing

on the state of mind of those responsible for publishing the

allegedly defamatory statements. Pet. at 18-19. The relevant

question is whether Respondent proffered clear and

convincing evidence that Petitioners “had a high degree of

awareness of . . . probably falsity” or “in fact entertained

serious doubts as to the truth of [the] publication.” Harte-

Hanks, 491 U.S. at 688 (emphasis added) (internal quotations

omitted); Pet. at 19. Respondent made no such showing

below, and fails again to do so here.

Only two individuals were materially involved in

creating and publishing the advertisements at issue: Craig

Engle (who was responsible for reviewing and approving the

advertisements) and David Welch (the consultant who

drafted the advertisements for Petitioners’ review and

approval). Pet. at 7-8, 19-29. This record contains no

evidence—let alone the constitutionally required clear and

convincing evidence—that either Mr. Engle or Mr. Welch

acted with actual malice. Id.

8

Respondent did not even take Mr. Engle’s deposition,

let alone contradict his affidavit testimony describing the

process by which he verified and approved the factual

statements in the advertisements. Pet. at 27-29. As a matter

of law, Respondent’s defamation claim fails for this reason

alone because it is axiomatic that “the state of mind required

for actual malice [has] to be brought home to the persons in

the [Petitioners’] organization having responsibility for the

publication of the advertisement.” New York Times Co., 376

U.S. at 287 (emphasis added); Pet. at 27-28 & n.15

(additional authorities cited therein).

Undeterred, Respondent offers three wisps of actual

malice “proof” involving Mr. Welch, Opp. at 29-30, none of

which can survive even a mild breeze, let alone a searching,

independent review of the record. It is poignant that, in

offering those three items, Respcndent discusses more of the

record than was ever mentioned by the West Virginia

Supreme Court. All three items are legally insufficient

evidence of actual malice, and one of them—the ostensible

use of just “part” of Respondent’s voting record—confirms

that Respondent seeks at trial, not to prove actual malice, but

-to extend her political campaign, hoping to sway jurors by

presenting to them other “parts” of her voting record.’

. The other two are Petitioners’ alleged “pattern of deception” and

the refusal to terminate the advertisements at the request of Respondent’s

opponent. Opp. at 29. The first has nothing to do with Mr. Welch’s state

of mind regarding his interpretation of Respondent’s voting record. By

Respondent’s own account, that purported “pattern” either dealt with Mr.

Welch’s alleged statements regarding the funding of the advertisements

or the alleged falsity of the advertisements. Jd. at 12-13. Equally, the

fact that Respondent’s opponent asked Petitioners to “consider”

terminating the advertisements, id. at 29, is immaterial to actual malice

because Respondent does not dispute that her opponent: (1) merely

objected to the “tone” of the advertisements; (2) never informed

(continued...)

9

Respondent apparently believes that there was more

to her voting record than Petitioners chose to include in the

advertisements. But Respondent cannot dispute,either (1)

that the advertisements truthfully discussed the votes on

which they focused, or (2) that Mr. Welch in fact believed

that those votes were relevant to Respondent’s fitness for

office. Pet. at 19-29.

It is undisputed that Mr. Welch in fact believed that

“{a] voting record is a voting record is a voting record... .

[A] legislator must be held accountable for all of [her] votes.”

Welch Depo., at 48, 49, 50; Pet. at 25. Respondent’s

exaggerated claims of “distortion,” “deception,” “character

assassination,” and “fabrication,” Opp. at 12-13, 17, 24, 29,

reflect nothing more than her disagreement with Mr. Welch’s

characterization of her “true” voting record. That

disagreement is precisely what political debate is all about,

and does not amount to clear and convincing evidence of

actual malice. See Harte-Hanks, 491 U.S. at 665, 666

(motive to promote one candidate over another insufficient

proof of actual malice; “the actual malice standard is not

satisfied merely through a showing of ill will or ‘malice’ in

the ordinary sense of the term’); Eu v. San Francisco County

Democratic Central Committee, 489 U.S. 214, 223 (1989)

(“[D]ebate on the qualifications of candidates [is] integral to

the operation of the system of government established by our

Constitution.”).*

Petitioners that the advertisements were false; (3) never asked that the

advertisements be withdrawn because they were false; (4) played no role

whatsoever in the preparation of the advertisements; (5) did not even

know that Petitioner Victory Committee existed; and, (6) did not

personally review Respondent’s legislative voting record. Pet. at 19-20

n.13. /

¥ Far from being “parallel” to: this case, Opp. at 28, Sprouse v.

Clay Communications, Inc., 211 S.E.2d 674 (W. Va.), cert denied, 423

(continued...)

10

CONCLUSION

For the foregoing reasons, and those stated in the

Petition, a writ of certiorari should issue summarily reversing

the judgment of the West Virginia Supreme Court.

Respectfully submitted,

Of Counsel: BENJAMIN L. GINSBERG*

MITCHELL R. BERGER PATTON BoGGs LLP

MATTHEW F. STOWE 2550 M Street, N.W.

UGO COLELLA Washington, D.C. 20037

PATTON BoGcGs LLP (202) 457-6000

2550 M Street, N.W. ,

‘i Washington, D.C. 20037 ALEXANDER N. VOGEL

(202) 457-6000 - General Counsel

NATIONAL REPUBLICAN

: SENATORIAL COMMITTEE

425 Second Street, N.E.

Washington, D.C. 20002

(202) 675-6000

Counsel for Petitioners

July 24, 2002 *Counsel of Record

U.S. 882 (1975), simply confirms that the West Virginia Supreme Court

did not fulfill its constitutional obligation of independent review and that

Respondent flunks the actual malice test. There, after exhaustively

reviewing the facts regarding actual malice, the Sprouse court concluded

that the defendant newspaper in fact was aware that the published

statements were false. /d. at 685 (“no evidence” that defendant “had

reason to believe” that plaintiff was engaged fraud); id. at 686 (defendant

knew “for an absolute certainty” that plaintiff's business was legitimate,

rather than a “dummy firm”); id. at 688 (information gathered by

defendant contained “no facts” or “no evidence” indicating that plaintiff

had engaged in improper business transactions). Sprouse, in any event, is

not binding on this Court.

|