Opposition Brief — Putka v. First Catholic Slovak Union

No. 91-1448 = ma

IN THE

Supreme Court of the Uni

EE:

f =

og

October Term, 1991

ANDREW C. PUTKA,

Petitioner,

Vs.

FIRST CATHOLIC SLOVAK UNION OF THE UNITED STATES

OF AMERICA AND CANADA, JOSEPH R. KRISTOFIK,

THOMAS J. GUIDISH, CYRIL M. FERENCHAK, STEVEN G.

LUCA, REV. CHARLES HAWKINS, GEORGE YAKUBISIN,

ANDREW S. BENO, ANDREW MICEK, JOSEPH J. KRAJSA,

EDWARD G. YUHAS, REGIS BREKOSKY, CHARLES M.

TEREK, STEVE YUSKO, MICHAEL RAGAN AND MICHAEL

DOBIS,

Respondents.

PETITION FoR WRIT OF CERTIORARI

To THE SUPREME CouRT OF OHIO

RESPONDENTS’ BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

WILLIAM B. LEAHY

Counsel of Record

Mark A. GAMIN

THOMPSON, HINE AND FLORY

1100 National City Bank Building

Cleveland, Ohio 44114

(216) 566-5500

EDWARD M. ZELENAK

2933 Fort Street

Lincoln Park, Michigan 48146

(313) 386-6400

Attorneys for Respondents

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO-—-TEL. (216) 621-5647

i.

QUESTIONS PRESENTED

Respondents disagree with Petitioner’s formulation

of the questions presented, because it mischaracterizes

the record in this case. Respondents would state the

questions presented as follows:

1. Whether Petitioner’s expulsion from membership

in an entirely private, voluntary fraternal organization,

which involved no approval or participation of any sort

by the State of Ohio, can form a basis for a claim under

the U.S. Constitution.

2. Whether the Ohio courts’ application of the

common law doctrine of qualified privilege raises any

question of federal law.

ii.

RULE 29.1 STATEMENT

Respondent First Catholic Slovak Union of the

United States of America and Canada has no parent

corporations and no subsidiary corporations other than

wholly-owned subsidiaries.

iii.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...........--++-++5- i

Poe RR Vy 4! Ly cer ii

TABLE OF CONTENTS .........2seceeseeceees iii

TABLE OF AUTHORITIES.........--++++-+555: Vv

PRELIMINARY STATEMENT ............-----. ]

COUNTERSTATEMENT OF THE CASE ........ 2

A. Statement of Facts ..............2eeeeeeee 2

The Jednota, Inc. Reorganization ........... 2

The Complaint to the Ohio Department

Laas een se eee eene een ns 2

Putka’s Expulsion ..............eeeeeeeees 3

The Appeal to the FCSU Supreme

Ee ere ee eee ee ee eee 4

The Appeal to the FCSU Convention ........ 4

Se Py eee re eee ee ee ee ee 5

B. Course of Proceedings and _ Disposition

Te ON Keak hea KE RK CERES EOS 5

eee ee eee 8

I. Petitioner's Expulsion From Membership

Was Entirely Private, There Was No State

Action and Therefore Petitioner Cannot

Claim Constitutional Protection’ in

Connection Therewith ..........cccccccces 6

iv.

II. Application of the Common Law Qualified

Privilege in This Case Raises No Federal

RNs eC cies eos OKs CKO N DRE CoN

INS os in he hse cee chen bee sewa cate

APPENDIX:

Decision of the Sixth Circuit in Vehec v. First

Catholic Slovak Union of the United States and

Canada, et al., No. 89-3869, May 29, 1990 .....

11

am

Vv.

TABLE OF AUTHORITIES

Cases:

Blum v. Yaretsky, 457 U.S. 991 (1982) ............ 7

Brinkerhoff-Faris Co. uv. Hill, 281 U.S. 673

Bo ree es ey re rr ere ren 10

Cheney v. Ketcham, 5 N.P. 139 (Lucas Cty.

CAs SOUR sa 6s be RERG Rs eee a eee 6

Davis v. Hines, 6 Ohio St. 473 (1856) ............. 6

Hahn v. Kotten, 43 Ohio St. 2d 237 (1975)......... 11

Herb v. Pitcairn, 324 U.S. 117 (1945). ............. 12

Int'l Union of Steam and Operating Engineers v.

Owens, 119 Olio St. 04 (1028)... ccc ececcces 9

Jackson v. Metropolitan Edison Co., 419 U.S. 345

0 er Ee Pree ere Pe rr ere nr 7,8

Jacobs v. Frank, 60 Ohio St. 3d 111 (1991)........ 11,12

John v. Paullin, 231 U.S. 583 (1913) .............. 7

Moose Lodge No. 107 v. Irvis, 407 U.S. 163

EEE koe aee knees eee he neh kee eee 8

Paddock Hodge Co. v. Grain Dealers’ National

Ass'n, 18 Ohio App. 66 (Lucas Cty. 1921) ....... 9

Pollock v. Cohen, 32 Ohio St. 514 (1877)........... 6

Postal Telegraph Cable Co. v. Newport, 247 U.S. 464

(Rs KAA LOR OKO eRe Ke ae eee 10

State ex rel. Ohio High School Athletic Ass’n v.

Judges of the Court of Common Pleas of Stark

County, 173 Ohio St. ZEB (IGGR. 2. 0 ci cccaeccss 9

vi.

Vehec v. First Catholic Slovak Union, No. 89-3869

(6th Cir. May 29, 1990), 1990 U.S. App. LEXIS

i Mere re tree e ey eer rer ere ts Ce 9

West v. People’s Banking & Trust Co., 14 Ohio App.

2d 69 (Washington Cty. 1967) ................. 11

Youakim v. Miller, 425 U.S. 231 (1976)............ 12

Rules:

ak Oe BE ea 13

ee th Ee Ro ee ~

a a Sp) © Pea ORO I SURF ut os 4

Treatises:

W. Keeton, Prosser and Keeton on The Law of

og | PPE eer ree 11

R. Stern, E. Gressman & S. Shapiro, Supreme Court

Peerees We OE. Ses occa shu cee See eas 8

No. 91-1448

IN THE

Supreme Court of the United States

October Term, 1991

———

ANDREW C. PUTKA,

Petitioner,

vs.

FIRST CATHOLIC SLOVAK UNION OF THE

UNITED STATES OF AMERICA AND CANADA,

JOSEPH R. KRISTOFIK, THOMAS J. GUIDISH,

CYRIL M. FERENCHAK, STEVEN G. LUCA, REV.

CHARLES HAWKINS, GEORGE YAKUBISIN,

ANDREW S. BENO, ANDREW MICEK, JOSEPH J.

KRAJSA, EDWARD G. YUHAS, REGIS

BREKOSKY, CHARLES M. TEREK, STEVE

YUSKO, MICHAEL RAGAN AND MICHAEL

DOBIS,

Respondents.

PETITION FoR Writ OF CERTIORARI

To THE SUPREME CouRT OF OHIO

RESPONDENTS’ BRIEF IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

PRELIMINARY STATEMENT

Respondents First Catholic Slovak Union of the

United States of America and Canada (‘‘FCSU”),

Kristofik, Guidish, Ferenchak, Luca, Hawkins,

Yakubisin, Beno, Micek, Krajsa, Yuhas, Brekosky,

Terek, Yusko, Ragan, and Dobis_ (collectively,

‘‘Respondents”’) oppose the petition for certiorari.

Petitioner Andrew C. Putka claims (1) that his expulsion

from a non-profit fraternal organization violated the free

speech and due process clauses of the United States

Constitution and (2) that certain publications in the

FCSU’s weekly newspaper were defamatory and not

protected by the common law qualified privilege.

Both assertions are incorrect. As the Ohio Court of

Appeals held, no constitutional protection attaches to

actions which are wholly private; and the common law

qualified privilege protected the publications. Petitioner

seeks to have this Court sit as a court of error on

matters purely of Ohio law. This the Court should not

do: the petition should be denied.

ee

2

COUNTERSTATEMENT OF THE CASE

A. Statement of Facts

The FCSU is a fraternal benefit society first

incorporated in Ohio in 1892. Amended Complaint, 41. It

provides death and disability benefits for its members

and seeks to promote the spiritual and temporal welfare

of its members within the Roman Catholic faith.

Appendix to Petition for Writ of Certiorari (hereafter,

“App. at ") at 4. The FCSU has its own internal

form of governance and Bylaws which all members agree

to obey. App. at 8. The individual respondents were

members of the FCSU’s Board of Directors. App. at 2-3.

The Jednota, Inc. Reorganization

In March, 1986, the Board of Directors of the FCSU

authorized the creation of subsidiary corporations (the

“reorganization’’), as a response to certain tax-related

concerns. App. at 4-5. As of September 29, 1986, the

FCSU organized Jednota, Inc., a _ wholly-owned

subsidiary holding company, and three subsidiaries

thereof. The Ohio Department of Insurance (the

‘Department of Insurance’’), which by statute oversees

certain aspects of the FCSU’s operations, approved the

reorganization. App. at 5-6.

The Complaint to the Ohio

Department of Insurance

On or about May 12, 1987, the Reverend Stephen

Furdek District of the FCSU sent a formal complaint to

the Department of Insurance concerning the

reorganizations. App. at 15. Petitioner Putka was one of

the complainants, and though he now claims to have

been acting solely as a lawyer, Petition For Writ of

3

Certiorari (hereafter, ‘‘Pet. at ") at 24, the

Department of Insurance specifically identified him as a

complainant. Before filing the complaint with the

Department of Insurance, Putka failed to bring the

subject of the complaint before the FCSU, as is required

by Section 16.11 of the FCSU Bylaws. App. at 7.

The Department of Insurance undertook an

extensive investigation of the allegations of Putka’s

complaint. On December 15, 1987, a Report of

Investigation was issued by the Department of

Insurance. That report found that

Neither the evidence presented by the

complainants, nor the evidence developed in the

Department's investigation warrants proceeding

with a show cause hearing pursuant to Ohio Revised

Code Section 3921.26.

App. at 6. It concluded that ‘nothing in this

investigation warrants’ reconsideration of the

determinations made by the Department’’ when the

reorganization plan had originally been submitted to the

Department of Insurance for review in 1986.

Putka’s Expulsion

In February, 1988, Putka and two other Furdek

District members were formally charged with violations

of the FCSU Bylaws. App. at 6-7. At the Annual Board

of Directors Meeting held on March 23, 1988, the Board

found, among other things, that Putka and the two

others had violated several FCSU Bylaw provisions in

connection with their attack on the reorganization.

Accordingly, the Board unanimously resolved that Putka

and the two others be expelled from membership in the

FCSU. App. at 7.

4

The Appeal to the FCSU Supreme Court

Putka appealed the decision of the Board of

Directors to the Supreme Court of the FCSU. App. at 8.

After oral argument, consideration of briefs, and several

hours of deliberation, the FCSU Supreme Court issued a

written opinion, which held (1) that Putka had violated

the FCSU Bylaws and (2) that his expulsion was

“therefore, proper and in accordance with the F.C.S.U.

Bylaws.’’ The Supreme Court revised the penalty

imposed on Putka from expulsion to a _ one-year

suspension. App. at 8. Thus, the FCSU Supreme Court

found that Putka’s punishment was proper under the

facts and governing Bylaws but decided, in its

discretion, not to expel.

The Appeal to the FCSU Convention

Putka appealed the FCSU Supreme Court’s decision

to the FCSU Convention, which was held from August

14-19, 1988, in Pittsburgh, Pennsylvania. The

Convention consists of delegates elected by each FCSU

branch and district, and is the supreme legislative and

judicial tribunal in the FCSU. App. at 8.

A grievance committee was appointed to consider

Putka’s appeal and to make recommendations to the

entire Convention. App. at 8. Putka was requested to

contact the grievance committee chairman, but he

refused to do so. The grievance committee held three

sessions to consider the expulsion, none of which Putka

deigned to attend. Jd. The grievance committee

recommended to the Convention that the Board of

Directors’ decision to expel Putka be reinstated. The

Convention voted to accept the recommendations of the

grievance committee and to expel Putka from the FCSU,

by vote of 281 to 192. Jd.

5

Jednota

Jednota (“Our Union’’) is the official newspaper of

the FCSU. App. at 6. The FCSU Bylaws require that all

official communications be published in Jednota; that

“reports and information necessary to promote the

welfare of the [FCSU]’’ be published, Bylaws, section

7.05(g); and that all proceedings of the FCSU Supreme

Court be published, id, section 7.08(d). The four

publications which Putka alleged were defamatory,

Amended Complaint, paragraph 14, were all published in

accordance with the FCSU Bylaws. App. at 26.

B. Course of Proceedings and Disposition Below

Petitioner filed this action in July, 1988, alleging

various claims related to his expulsion from membership

in the FCSU. Petitioner amended the complaint in

December, 1988 to recite claims for ‘‘disregard’’ of his

rights under the FCSU Bylaws and of unspecified rights

under the “laws and Constitution of Ohio,’’ Amended

Complaint, paragraph 11, intentional infliction of

emotional distress, id., paragraph 12, and defamation, id.,

paragraph 14. The amended complaint made no claim

under the U.S. Constitution or other federal law. The

only reference to federal law is in the prayer, where

petitioner requested, inter alia, an “injunction enjoining’’

Respondents from depriving Petitioner ‘‘from

exercising his rights under the Bylaws of the FCSU and

secured to him by the laws and Constitution of Ohio and

of the United States.”’

On December 12, 1989, the Cuyahoga County Court

of Common Pleas granted defendants’ motion for

summary judgment as to all claims, and Putka appealed.

The Eighth District Court of Appeals affirmed the grant

of summary judgment in all respects, on August 15,

1991, App. at 2-28. The Ohio Supreme Court dismissed

Petitioner's appeal for lack of a _ substantial

constitutional question, App. at 1.

6

ARGUMENT

I. Petitioner's Expulsion From Membership Was

Entirely Private, There Was No State Action and

Therefore Petitioner Cannot Claim Constitutional

Protection in Connection Therewith.

Petitioner simply has no business being in this

Court, because the action he complains of was entirely

private, and, for that reason, he cannot claim violation of

any federal constitutional provision. Petitioner's

argument to the contrary proceeds thus: because the

FCSU is “regulated, supervised and controlled in detail’’

by the Ohio Superintendent of Insurance, and because

the Superintendent’s approval was necessary for the

reorganization plan, there was sufficient nexus between

the conduct complained of and the State.

That argument was not made in the Ohio courts.

First, there is no reference to federal law in the amended

complaint except a generalized ard gratuitous reference

in the prayer. Petitioner’s briefs in the Ohio Court of

Appeals contain mere references to, e.g., ‘the controlling

laws of our land,” Brief for Appellant at 9, 13, and his

“right of free speech,” id. at 18, 19. Those briefs did not

reference the U.S. Constitution, the state action doctrine,

or any cases addressing those issues. Virtually all the

citations in those briefs were of Ohio cases.

In Ohio, it is necessary that assignments of error be

specified, Ohio R. App. P. 16(A). Absent such

assignments, they will not be considered on appeal. Ohio

R. App. P. 12(A); Pollock v. Cohen, 32 Ohio St. 514

(1877), syllabus 41-2. Moreover, the Ohio Supreme Court

will not consider errors not raised in the intermediate

court, Davis v. Hines, 6 Ohio St. 473 (1856). And where

the state’s procedures require that assignments of error

7

be made or waived, this Court will require likewise.

[T]he state law and practice in this regard are no less

applicable when Federal rights are in controversy than

when the case turns entirely upon questions of local or

general law.” John v. Paullin, 231 U.S. 583, 585 (1913).

Thus, Petitioner has waived his alleged

Constitutional violations. But even if that were not true,

his argument ignores this Court’s long precedent on

matters of state action. As this Court has held, ‘‘[t]he

mere fact that a business is subject to state regulation

does not by itself convert its action into that of the State

for purposes of the Fourteenth Amendment,” Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 350 (1974). The

inquiry, rather, ‘‘must be whether there is a sufficiently

close nexus between the State and the challenged action

of the regulated entity so that the action of the latter

may be fairly treated as that of the State itself.”’ Jd. at

351. The purpose of that requirement ‘‘is to assure that

constitutional standards are invoked only when it can be

said that the State is responsible for the specific conduct

of which the plaintiff complains,’’ Blum v. Yaretsky, 457

U.S. 991, 1004 (1982) (emphasis in original).

There is no such nexus here. The ‘‘state action”

alleged by Petitioner is attenuated indeed: the state

approved the reorganization, which ‘provoked the

concern and interest of’’ Petitioner, which led him to file

a complaint with the Department of Insurance, which

caused him to be expelled. Pet. at 19-20. However, the

State did not have any connection with the expulsion,

which is the only conduct complained of. (This lawsuit

has never included a claim based on_ the

reorganization—it included only claims based on

Petitioner’s expulsion.) The State did not approve,

sanction, or participate in the expulsion in any way. It is

8

the conduct complained of, not the mere fact that

defendant itself is regulated in some aspects, that can

make for ‘‘state action,”’ e.g., Jackson v. Metropolitan

Edison Co., 419 U.S. at 358; Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 176-77 (1972) (regulation cannot be

said to make the state a partner in private club’s

enterprise; thus no state action).

Next, Petitioner reargues matters of state law

already decided by the Ohio courts, Pet. at 23-38, and

seeks to have this Court revisit the two allegedly

“erroneous” bases for the decision of the Ohio Court of

Appeals. Because there is no question of state action or

other federal question, this Court need not and should

not address those matters. (Even if the decision were

erroneous, and it is not, this Court is not primarily

concerned with the correction of errors in the lower

courts. Absent other factors, error itself will not suffice

for grant of certiorari, see R. Stern, E. Gressman and S.

Shapiro, Supreme Court Practice, 221-22 (6th ed. 1986).)

Moreover, Petitioner’s rearguments of state law are

erroneous substantively. Consistent with Supreme Court

Rules 15.1 (obligation of the Respondent to point out

misstatements) and 15.3 (brief in opposition shall be as

short as possible) Respondents will address them briefly.

Ohio courts give great deference to the rulings of

internal tribunals of voluntary organizations:

It is well established that courts will not

interfere with the internal affairs of voluntary

associations, except in such cases as fraud or lack of

jurisdiction .... The decisions of the tribunals of an

association with respect to its internal affairs will, in

the absence of mistake, fraud, collusion, or

arbitrariness, be accepted by the courts as

conclusive. Moreover, it is held that the courts will

9

not undertake to inquire into the regularity of the

procedure adopted and pursued by such tribunals in

reaching their decisions.

State ex rel. Ohio High School Athletic Ass’n v. Judges

of the Court of Common Pleas of Stark County, 173 Ohio

St. 239, 247 (1962). Before he or she is expelled, a

member of a voluntary organization must have notice of

the charges and an opportunity to defend against them,

Cheney v. Ketcham, 5 N.P. 139 (Lucas Cty. C.P. 1897).

However, the internal procedures applicable to expulsion

of members need not mirror the procedures inherent in

our civil or criminal justice system, Ohio High School

Athletic Ass'n, 173 Ohio St. at 247; Paddock Hodge Co.

v. Grain Dealers’ National Ass’n, 18 Ohio App. 66

(Lucas Cty. 1921). See also Vehec v. First Catholic

Slovak Union, No. 89-3869 (6th Cir. May 29, 1990), 1990

U.S. App. LEXIS 8705 (summary judgment affirmed in

case involving legal claims virtually identical to those in

this case; following Ohio High School Athletic Ass’n)

(See Appendix to this Brief, A1l-A1]1).

The Ohio Court of Appeals held that Petitioner

‘‘clearly was afforded all the essentials of due process,”’

and that he had ‘failed to produce any evidence of

mistake, fraud, or management activity in excess of

corporate powers.” App. at 20. The court further found

that bylaw provisions such as FCSU Bylaw 16.11

(requiring exhaustion of internal remedies before resort is

made to civil authorities) should be upheld under Ohio

law. App. at 19-20. See also Int'l Union of Steam and

Operating Engineers v. Owens, 119 Ohio St. 94, 98-99

(1928). The above described holdings of the Ohio

appellate court involve matters relating exclusively to

Ohio law, which should be dispositive here.

10

Finally, Petitioner argues that the state court's

‘“imprimatur’’ on his expulsion allows this Court to

review the underlying (though never before asserted)

constitutional claims. Pet. at 40-45. That is not the law.

Unlike Postal Telegraph Cable Co. v. Newport, 247 U.S.

464 (1918) and Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673

(1930), the two cases upon which Petitioner relies, this

case involves no deprivation of notice and an opportunity

to be heard. Both those cases involved anomalous

circumstances in which the state court had deprived

plaintiffs of existing remedies for enforcement of

rights—in Postal Telegraph, by res judicata, and in

Brinkerhoff-Faris, by denial of a newly-created right of

relief. In contrast, the Ohio courts here denied Petitioner

his requested relief on the merits because his claims were

unquestionably unfounded under well-settled Ohio law.

Because the state courts have the supreme power to

interpret state law, Brinkerhoff-Faris, 281 U.S. at 682,

and because the Ohio courts determined that, as a

matter of state law, Petitioner had failed to raise a

genuine issue of material fact to support his claims, he

can make no constitutional claim.

11

II. Application of the Common Law Qualified

Privilege In This Case Raises No Federal Question.

In his statement of the Questions Presented, and

again in the body of his brief, Petitioner appears to argue

that the Ohio courts wrongly afforded the FCSU a

“constitutional” privilege, and that, in the context of

this case, ‘‘damages for false and defamatory statements

are not prohibited by the First Amendment.”’ Pet. at 50.

There are two fatal flaws in that argument. First, it was

never presented to the Ohio courts; second, the Ohio

courts did not rule on constitutional privilege, but on the

common law qualified privilege.

Under Ohio common law, communications are

protected by a qualified privilege when they are made

‘‘in good faith on any subject matter in which the person

communicating has an interest ... if made to a person

having a corresponding interest or duty, even though it

contains matter which, without this privilege, would be

actionable ...’’ West v. People’s Banking & Trust Co., 14

Ohio App. 2d 69, 72 (Washington Cty. 1967); accord,

Jacobs v. Frank, 60 Ohio St. 3d 111 (1991); Hahn v.

Kotten, 43 Ohio St. 2d 237, 244 (1975). That privilege is

a venerable one. It arose before the development of First

Amendment privileges and today exists independent of

them, see W. Keeton, Prosser and Keeton on The Law of

Torts, §115 (5th ed. 1984).

The Ohio Court of Appeals rested its decision on the

common law privilege. Constitutional privilege was never

addressed, and there was clearly independent and

adequate state ground for the holding. Petitioner never

argued, and does not argue here, that application of the

privilege in this case was in any sense violative of federal

constitutional protections. Thus, to ask, as Petitioner

does, Pet. at 49-50, ‘“‘whether the facts of the present

12

case are wholly within the First Amendment concerns

expressed by this Court in New York Times Co. and its

progeny” is simply a non sequitur. As a matter of Ohio

law, the publications were privileged, and this Court will

not disturb state rulings on state law. Herb v. Pitcairn,

324 U.S. 117, 125-26 (1946).

Furthermore, whatever argument Petitioner now

makes under the U.S. Constitution was never made in

Ohio. In the Court of Appeals, Petitioner conceded that

the qualified privilege was applicable, but argued only

that the publications in question had been ‘‘unnecessarily

defamatory,” App. at 24. Nor was any federal

constitutional argument made as to the defamation claim

in Petitioner’s Memorandum in Support of Jurisdiction

in the Ohio Supreme Court. This Court does not decide

questions not raised in the lower courts, Youakim ov.

Miller, 425 U.S. 231, 234 (1976), and so should deny the

petition on that ground alone.

Even if the defamation claim were appropriate for

review here (and, involving no federal question, it is not),

Petitioner makes no showing of the “actual malice’

necessary to defeat the qualified privilege. In an Ohio

qualified privilege case, plaintiff must show that the

statements were made with knowledge of their falsity or

with reckless disregard as to truth or falsity. Jacobs v.

Frank, 60 Ohio St. 3d at 116. Petitioner refers to ‘‘the

unrefuted evidence,’’ Pet. at 48, but specifies none, and

no wonder: two Ohio courts found no genuine issue of

material fact on the issue of qualified privilege, and the

third (the Ohio Supreme Court) found no reason to

review that determination. For these reasons, the

petition as to the defamation claim should be denied.

13

CONCLUSION

The Petition should be denied because Petitioner's

expulsion involved no state action and thus no

constitutional protection attaches; and because there is

no federal question as to the defamation claim.

Moreover, this case presents no “special and important

reasons’ why certiorari should be granted within the

meaning of Supreme Court Rule 10.1. Accordingly, the

petition should be denied.

Respectfully submitted,

WILLIAM B. LEAHY

Counsel of Record

MARK A. GAMIN

THOMPSON, HINE AND FLORY

1100 National City Bank Building

Cleveland, Ohio 44114

(216) 566-5500

EDWARD M. ZELENAK

2933 Fort Street

Lincoln Park, Michigan 48146

(313) 386-6400

Attorneys for Respondents

Al

APPENDIX

[Filed May 29, 1990]

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to _ specific

situations. Please see rule 24 before citing in a

proceeding in a court in the Sixth Circuit. If cited, a copy

must be served on other parties and the Court.

This notice is to be prominently displayed if this decision

is reproduced.

No. 89-3869

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH R. VEHEC,

Plaintiff-Appellant,

Vv.

FIRST CATHOLIC SLOVAK UNION OF THE

UNITED STATES AND CANADA, JOSEPH

R. KRISTOFIK, CYRIL M. FERENCHAK,

STEVEN G. LUCA, and JOHN YENCIK,

Defendants-Appellees.

On APPEAL FROM THE UNITED STATES DISTRICT COURT

FoR THE NORTHERN DISTRICT OF OHIO

A2

BEFORE: KENNEDY and Ryan, Circuit Judges; and

Cook, Chief District Judge.'

PER CURIAM: Appellant Joseph R. Vehec

brought this action against his former employer, the

First Catholic Slovak Union of the United States and

Canada (FCSU), a non-profit fraternal benefit society;

Joseph R. Kristofik, the society’s president; Cyril M.

Ferenchak, the society’s treasurer; Steven G. Luca, a

member of the society’s board of directors; and John

Yencik, a marketing consultant of the society. In his

amended complaint, appellant asserted the following

causes of action: breach of contract; malicious violation

of state and federal constitutional rights to due process;

malicious violation of the FCSU by-laws; intentional

infliction of emotional distress; and defamation. The

District Court granted appellees’ motion for summary

judgment on all! claims. We AFFIRM the judgment of

the District Court.

FCSU is a private, non-profit association whose

members share a common religious and ethnic heritage.

It is administered by various ‘‘supreme officers,”

including an executive secretary, in accordance with its

own by-laws. In 1982, appellant was elected to serve a

three-year term as executive secretary. As such, he

received a salary and the use of living quarters and office

space on the premises of the FCSU home office in

Cleveland. His responsibilities included financial

management and record keeping for the entire

organization. In August of 1985, the regular convention

of the FCSU re-elected him for a second term of office, to

run until March of 1989.

‘The Honorabie Julian Abele Cook, Jr., Chief United States District

Judge for the Eastern District of Michigan, sitting by designation.

A3

Audits conducted in 1987 revealed various

irregularities in Vehec’s use of FCSU funds. The

specifics of these were detailed in a letter dated August

7, 1987, from Luca to Kristofik. At its semi-annual

meeting, held August 16-20, 1987, the FCSU board of

directors considered the contents of the letter. Having

been asked at that meeting to respond to the letter,

Vehec prepared an answer, which was considered at a

meeting of the executive committee held on September

22, 1987.

According to Kristofik, following that meeting,

Kristofik, as the supreme president of the FCSU,

informed Vehec by letter of the same date that Vehec

was suspended without pay effective immediately until a

special meeting of the board could be convened. On

September 24, 1987, Kristofik told Vehec in person that

Vehec was suspended and that he and his family had to

vacate the premises at the FCSU headquarters. On

November 3, 1987, the board of directors held a special

meeting during which, by official vote, Vehec was

terminated as executive secretary.

Vehec claims that Kristofik, accompanied by Luca

and Yencik, discharged him as opposed to suspending

him in September of 1987, and ordered him and his

family to vacate their living quarters that same day. He

alleges further that, despite the by-laws’ requirement, he

received no written statement of the charges against him

which were to be considered at the November 3, 1987

meeting; that he received no notice of that board

meeting; and that he was therefore not afforded the

opportunity guaranteed him by the FCSU by-laws to

appear and defend himself.

A4

Vehec appealed the board’s November 3rd decision

by filing a notice of appeal with the FCSU supreme court

on November 24, 1987. On January 9, 1988, after a

hearing, that court entered an order upholding Vehec’s

termination as in conformity with the FCSU by-laws.

Vehec did not take what would have been, under the

association’s internal rules, the next and final appeal of

that judgment—an appeal to the FCSU convention. He

did, however, request that the FCSU supreme court

reconsider its January 9th ruling. He added this request

to his appeal of the board of directors’ March 23, 1988

decision to expel him from membership in the FCSU.

That court declined to do so, ruling on June 3, 1988 that

this effort was barred by res judicata. Under FCSU'’s

governing rules, this decision ended appellant’s right to

challenge the actions taken against him by the

association s authorized decision makers.

In the months that followed, three articles appeared

in the official FCSU publication, Jednota, discussing the

above events. Two of these were written by Kristofik, as

president of the FCSU, and one by Michael Ridilla, as

president of the FCSU supreme court. The District Court

noted that Vehec did not allege that these articles were

circulated more broadly than to the FCSU membership,

or that they were written by Kristofik and Ridilla in

capacities other than as officials of this private

association.

The District Court found that the FCSU is subject

to the provisions of section 1702.34(B) of the Ohio

Revised Code, and that a plain reading of that provision

makes it clear that no state law contract rights arise

under the provision of FCSU’s by-laws. The court further

found that even if Vehec’s reliance on the by-laws were

A5

not barred by this provision, his breach of contract claim

would nevertheless be barred by Ohio’s statute of frauds.

The District Court also found that appellant’s fourteenth

amendment claim failed because he alleged no state

action and no state action existed. Appellant also argued

that FCSU violated the due process rights afforded him

by the FCSU by-laws. The court noted that under Ohio

law, in the absence of mistake, fraud, collusion or

arbitrariness, the decisions of tribunals of voluntary

associations must be accepted by the courts as

conclusive. Because appellant produced no evidence

demonstrating circumstances warranting judicial

intervention, the court accepted the decision of the

FCSU tribunals. The District Court also found that

appellant failed to make out a claim for intentional or

reckless infliction of emotional distress, and did not

produce factual support for his claim of defamation.

Therefore, the District Court granted appellees’ motion

for summary judgment.

Appellant first argues that the District Court erred

in awarding summary judgment for appellees because

appellant was ‘‘tried and condemned in absentia by the

Board in violation of the due process provisions of tl.e

Bylaws.’’ In response to this contention, the District

Court responded:

On the question of the extent to which any court,

either state or federal, may review the

decisionmaking procedures of private associations

incorporated under Ohio law, the law is well-settled.

In the absence of mistake, fraud, collusion, or

arbitrariness, the decisions of the tribunals of such

voluntary associations must be accepted by the

courts as conclusive. State ex rel. Ohio High School

Athletic Association v. Judges of the Court of

Common Pleas of Stark County, 173 Ohio St. 239,

247, 181 N.E.2d 261, 266-67 (1962).

A6

The court found that Vehec had not produced any

evidence demonstrating circumstances warranting

judicial intervention.

Appellant argues that the District Court

misapprehended the meaning of the Ohio Athletic

Association case because it failed to quote the following

language from the opinion:

Even more to the point is the following language

“The decisions of any kind of voluntary society

or association in disciplining, suspending, or

expelling members are of a quasi judicial character.

In such cases the courts never interfere except to

ascertain whether or not the proceeding was

pursuant to the rules and laws of the society,

whether or not the proceeding was in good faith, and

whether or not there was anything in the proceeding

in violation of the laws of the land.”

State ex rel. Ohio High School Athletic Ass’n v. Judges

of the Court of Common Pleas, 173 Ohio St. 239, 247,

181 N.E.2d 261, 266 (1962) (quoting 4 American

Jurisprudence 466, section 27).

We do not believe the omission of this language

indicates that the District Court misapprehended the

Ohio court's holding. Considering this language as well

as that quoted by the District Court, we agree with the

court’s finding that appellant did not produce any

evidence demonstrating circumstances’ warranting

judicial intervention.

We also agree with the District Court that appellant

has not shown that FCSU’s by-laws were violated.

Appellant asserts that the power to permanently dismiss

a supreme officer is granted exclusively to the board of

directors by sections 9.04(e) and (f). These sections state

IS ccc

AZ

that the board has jurisdiction ‘‘to hear and pass upon

all complaints, grievances or violation[s] of the Bylaws

and to impose penalty as provided in Section 16 of these

Bylaws,’* and may “{djismiss from office after due

hearing and a trial, any supreme or local officer ... who

fails to perform his (her) duties, or violates any provision

of these Bylaws.” These sections do not grant exclusive

authority to the board. In fact, the president, Kristofik,

acted pursuant to his authority to dismiss officers for

violations of the by-laws, granted by section 7.03(j). This

section provides, in part:

President is to preside at all meetings of the

Supreme Officers and shall:

(f) Arrange to investigate any irregularities and

misunderstandings existing in any branch. All

reports received shall be submitted to the Board of

Directors at their next meeting.

(j) Dismiss Supreme Officers, officers of local

branches for violations of these Bylaws or orders of

the Supreme President, with a right of appeal.

(m) Render decisions on ll questions

concerning the construction of Bylaws which shall

be binding on all Officers, unless reversed by the

Board of Directors or the Convention.

? Section 16.03(a) provides:

When charges are preferred before the Board of Directors, the

accused may be notified at least fifteen (15) days in advance of

the time and place of the hearing and must receive a written

statement of the charge against him (her).

A8

(o) With the approval of two-thirds of the

Board of Directors, reprimand and for a serious

offense, suspend any Supreme Officer for failure to

perform his (her) duties.

Section 7.03 does not require a trial.’ Thus

appellant's argument that because he did not have a

trial, the by-laws were violated, is without merit.

Section 7.03 does afford appellant a right of appeal.

Appellant availed himself of this right. He filed a notice

of appeal with the FCSU supreme court on November 24,

1987, and on January 9, 1988, after a hearing, the

supreme court entered an order upholding Vehec’s

termination as in conformity with the FCSU by-laws.

Appellant waived his right of further appeal to the

FCSU convention by failing to appeal within the time

period mandated by the by-laws. Thus appellees did not

violate the by-laws. Further, appellant’s argument that

he was denied due process is without merit in light of

these procedural protections. He was provided with

notice and an opportunity to defend himself, and

therefore he was not denied due process. Normali v.

Cleveland Ass'n of Life Jnderwriters, 39 Ohio App. 2d

25, 31, 315 N.E.2d 482 (1974).

Appellant next argues that the District Court erred

in finding that there was not an enforceable employment

contract in effect at the time of Vehec’s termination.

Appellant argues that his election to the office of

executive secretary created a legally binding contract

between him and the FCSU under the terms and

conditions of the by-laws. He argues that section 4.03 of

the by-laws, entitled ‘‘Member Contract” states that

[t]he contract agreement between the Society and the

*Section 16.03(b)(3) provides that no trial shall be necessary

“whenever the Bylaws provide for ... removal from office or

expulsion or fine without trial or notice.”’

ee

A9

member shall contain . . . (3) Bylaws of the Society.’’ This

membership contract, however, is wholly unrelated to

any employment contract appellant may have had with

the FCSU. Appellant also argues that the proceedings of

the convention that elected him as executive secretary

were memorialized by written minutes, and that these

minutes together with the by-laws are evidence of a

contract. However, as the District Court found, the

FCSU, as a non-profit corporation organized under the

law of Ohio, is subject to the provisions of section

1702.34(B) of the Ohio Revised Code, which provides in

part:

(B) Unless the articles or the regulations otherwise

provide, ...

(2) Any officer may be removed, with or without

cause, by the persons authorized to elect or appoint

him without prejudice to the contract rights of such

officer. The election or appointment of an officer for

a given term, or a general provision in the articles,

the regulations, or the bylaws with respect to term

of office, shall not be deemed to create contract

|

Ohio Rev. Code Ann. §1702.34(B) (Anderson 1985)

(emphasis added).

The by-laws of FCSU do not “otherwise provide.”’

Therefore, no state law contract rights arise as a result

of appellant’s election.‘

‘The District Court found that appellant's breach of contract claim

would be barred by Ohio’s statute cf frauds as well. Appellant

contends that corporate minutes can constitute a memorandum

satisfying the requirements of the statute of frauds. He cites

Soteriades v. Wendy's of Fort Wayne, Inc., 34 Ohio App. 3d 222, 225,

517 N.E.2d 1011 (1986), for this proposition. The minutes in that

(Footnote continued on following page.)

Al10

Appellant next argues that the District Court erred

in finding that no genuine issue of material fact existed

with respect to appellant’s intentional or reckless

infliction of emotional distress claim and that appellees

were entitled to judgment as a matter of law.’ To be

liable for this tort, the appellees must have ‘‘by extreme

and outrageous conduct intentionally or recklessly

cause[d] severe emotional distress’ to appellant. Yeager

v. Local Union 20, 6 Ohio St. 3d 369, 374, 453 N.E.2d

666, 671-72 (1983) (quoting Restatement of the Law 2d,

Torts 73, section 46(1), comment d (1965)). The conduct

must have been “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’’ Jd. at 375. The

Ohio courts have applied this standard with even greater

stringency in employment actions. Crawford v. ITT

Consumer Fin. Corp., 653 F. Supp. 1184, 1192 (S.D. Ohio

1986). We agree with the District Court that the conduct

complained of in the present case cannot meet these high

standards.

Appellant’s final argument is that the District Court

erred in finding that there were no genuine issues of

material fact regarding the defamation cause of action,

(Footnote continued from preceding page.)

case, however, were much more detailed than those in the present

case. In the present case, the minutes cannot be said to ‘‘contain the

essential terms of the contract, expressed with such clearness and

certainty, that they may be understood from the writing itself, or

some other paper to which it refers, without the necessity of resorting

to parol proof.’’ Kling v. Bordner, 65 Ohio St. 86, 99, 61 N.E. 148

(1901).

* Appellant also argues that he is entitled to punitive damages

because the alleged breach of contract amounts to an independent

willful tort. Because we have found that no contract and therefore no

breach exists in the present case, we need not reach this issue.

All

and that appellee was entitled to judgment as a matter

of law. The publications in which the allegedly

defamatory articles were printed are protected by a

qualified privilege, because the author and the readers

share ‘‘a common interest, and the communication is of a

kind reasonably calculated to protect or further it.”

Hahn v. Kotten, 43 Ohio St. 2d 237, 244, 331 N.E.2d

713, 718 (1975). In order to recover, appellant must have

demonstrated falsity and actual malice. We agree with

the District Court that appellant failed to go beyond his

pleadings to produce factual support for his allegation of

actual malice. Appellant has not convinced us otherwise

in his appeal.

Accordingly, we AFFIRM the District Court’s order

granting appellee’s motion for summary judgment.