# Opposition Brief — Putka v. First Catholic Slovak Union

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 986

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0317%3A3. Public record. Not legal advice.