Opposition Brief — Wellman v. Fox

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

No. 91-1874 :

IN THE

Supreme Court of the Cinited States

OCTOBER TERM, 1991

DALTON E. WELLMAN, SR., DALTON E. WELLMAN, JR.,

WALLACE K. WELLMAN and EDGAR E. WELLMAN,

Petitioners,

R.H. FOX, JR., EDWARD B. FOX, THOMAS W. ERVIN,

KENNETH WEEKS, ALGINON SMITH, ALTON PALMER,

L.H. STRONG and DAVID BISHOP,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE STATE OF NEVADA

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

LEWIS N. LEVY

Counsel of Record

LEVY, GOLDMAN & LEVY

3660 Wilshire Boulevard

Suite 616

Los Angeles, California 90010

(213) 380-3140

Attorneys for Defendants /Respondents

R.H. FOX, JR., et al.

Lawyers Brief Service * Appeilate Brief Printers * (213) 613-1013 * (714) 720-1510

CITATIONS OF THE OPINIONS AND JUDGEMENTS

DELIVERED IN THE COURT BELOW

Dalton E. Wellman, Sr., etc., et al. v.

RH. Fox, Jr., etc., et al. 825 P.2d 208

(Nev. Sup. a 1992)., 139 Labor

Relations Reference Manual (BNA) 2669

(1992).

PARTIES TO THE PROCEEDING IN THE COURT

WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED

The names of the parties to this

proceeding are those contained in the

caption of this’ case. Counsel for

Respondents is unaware of any other

parties who are not set forth in the

caption of this proceeding.

TABLE OF CONTENTS

CONTENT PAGE

STATEMENT OF THE CASE... ....ccccccccccs 1

Co ee eee ee ee eee 5

A. PETITIONER’S ARGUMENTS

CONCERNING THEIR ALLEGED RIGHT

TO A JURY TRIAL UNDER THE NEVADA

CONSTITUTION RAISE NO FEDERAL

QUESTIONS (PETITIONERS’ ISSUES

NUMBER 4 AND 11)................. 6

PETITIONERS INAPPROPRIATELY

ATTEMPT TO RAISE ISSUES OF FACT

WHICH WERE PREVIOUSLY DETERMINED

AGAINST THEM BOTH AT THE TRIAL

COURT AND APPELLATE COURT LEVEL

(PETITIONERS ISSUES NOS. 3,5,9

ee ee eee e nes cb eeedacece 7

THE NEVADA SUPREME COURT DID NOT

ERR IN AFFIRMING THE DISMISSAL OF

RESPONDENTS EDWARD B. FOX, ERVIN,

WEEKS, SMITH, PALMER, STRONG AND

BISHOP.

(PETITIONERS’ ISSUE NUMBER 10)...9

THE NEVADA SUPREME COURT DID NOT

DECIDE THE APPROPRIATENESS OF

APPLYING THE "ACTUAL/CONSTITUTIONAL

MALICE" STANDARD TO THIS PROCEEDING,

AND, IN ANY CASE, RESPONDENTS SUBMIT

THAT THE "ACTUAL/CONSTITUTIONAL

MALICE" WOULD HAVE BEEN THE

APPROPRIATE TEST. (PETITIONERS’

ISSUES NUMBERS 1,2,6,7,8,

DUET MUR CG Abe ceseckenccecsece 12

CONTENTS PAGE

THE SUPREME COURT OF THE STATE

OF NEVADA PROPERLY APPLIED THIS

COURT’S DECISION IN MILKOVICH TO

THE FACTS HEREIN AND NO CONFLICT

EXISTS ON ANY ISSUE RELATING TO

MILKOVICH THAT WOULD JUSTIFY

THIS COURT’S ATTENTION

(PETITIONERS’ ISSUES NUMBER 3,

a ae ee | ee eee 16

CONCIMUSION ccc ccsecseeseebesesacvesese 22

iii

TABLE OF AUTHORITIES

I. Case Citations

Batson v. Shiftlet,

325 Md. 684, 602 A.2d 1191 (1992).....- 14

Farmers Union v. WDAY,

360 U.S. 525 (1959) ..ccccccccccccccces 11

Gill v. Hughes,

P.2d , 278 Cal. Rptr. 306 (1991)..... 20

Greenbelt Cooperative Publishing

Association v. Bressler,

SOE Ui. GLRUIOs 6.0 ve casee she ccswanes 18

Greaory v. McDonnell Douglas Corp.,

12 Cal. 3d. 596, 552 P.2d 425 (1976)..14

Harte-Hanks v. Connaughton,

491 U.S. 688 (1989)... eevee eevee 8,17

Hustler Magazine v. Falwell, ;

46S OU. G6 CEGGG) 6 6446606 ores oe eeeess 18

International Organization of

Masters, Mates, etc. v. Brown,

U.S. , 112 L.E@. 2€ 991 (1991)....11

Letter Carriers v. Austin,

£26 Gi. SOG CARTS) oon ccaeks «ces 14,15,18

Linn v. United Plant Guard Workers,

383 U.S. 53 (1966)... cece ereevcecce 14,15

Machinists Lodge No. 707, 276 NLRB 185

(1985). e*eeee#e# e*eeeee#eee#*# eeeeeseente#e#e#ee#fe#es#ke#e#rekee#see?# 15

Marshall v. Provision House Workers

Loca 74

623 7.26 1332 (Oth Cit. 1000) ccd cdc e> 11

Michigan v. Long,

463 U.S. 1032 (1983) .ccccccccvvcccccscees 7

Milkovich v. Loraine Journal Company,

497 U.S. , £113 bee 26 i

(A990) cc evevesseewesvesers i6,17,18,19,20

New York Times v. Sullivan,

376 UiBi DOR. TE cs See eee 4,14

NLRB v. Machinists District 91, Local 707,

S17 F.2G 235 (206 Cis BEST) «< s ee ccnces ES

Ocala Star-Banner Company v. Damron,

401 U.S. 295 Cidlibsscaccviessivveseas i

Operating Engineers Local 139,

373 Ma OES CARE i xb ckes ie ee 15

Ross v. Gallant, Farrow & Company,

116 Ariz. 298, 569 P.2d 240 el yee Pere «

Ross v. International Brotherhood of

Electrical Workers (IBEW),

634 F.2d 453 (9th cir. L9SO) wc cccevece 13

Sheeran v. Colpo,

460 A.2d 522 (Del Sup. Ct., 1983)..... 14

Unelko Corp. v. Rooney, 912 F.2d 1049

(SCR CLE. 3006) cs 66k uke Aes nee eee 20

Volt Information Sciences, Inc. v.

Board of Trustees,

U.S. , 103 LrBd. 648 (1969) .......> 8

Warren v. Herndon, 115 Cal. App. 3d 141,

L172 Cal. Rote. 220 (1981)... cscccveses 14

II. Statutes and Regulations

A. Labor Management Relations Act

Of 1947, As Amended ("LMRA"), 29

USC §151, et seg

LMRA Section 2(5) [29 USC

§152(5) Jo cnc ccc veveevevessescees >

LMRA Section 7 [29 USC §157]....15

LMRA Section 8(2) (3) (29 usc

See Lf eee rer on Dey 15

LMRA Section 8(b)(1)(A) [29 USC

ee tt EG lt | eee ere re eee 15

B. Labor Management Reporting And

Disclosure Act Of 1959 ("LMRDA")

{29 USC §401 et seq. ]

LMRDA Section 101 (29 USC

ee eer ere rere rey rrr yes cS

LMRDA Section 401 (29 USC

errr ge erry earn 2,3,1%5

LMRDA Section 402 (29 USC

eT ea ery reer ery emery ar 2,15

e; Department Of Labor Interpretive

Regulations Adopted Pursuant To

The LMRDA

29 CFR $452.70... ccc cc reer cecvces 10

STAT NT OF THE CASE

On or about January, 1984,

Plaintiff’s/Petitioners Dalton E. Wellman

Sr., Dalton E. Wellman Jr., Edgar Wellman

and Wallace Wellman ("Petitioners") filed

a complaint in the Clark County District

Court for the State of Nevada. The

complaint set forth causes action,

alleging libel and slander under Nevada

state law, against Defendants/Respondents

R.H. Fox Jr., Edward Fox, Ervin, Weeks,

Smith, Palmer, Strong and Bishop.

Petitioner’s allegations arose from

statements made in a piece of campaign

literature which was distributed, on

behalf of Respondent’ R.H. Fox, JE s

(hereinafter "Respondent" or "Fox"}), to

the membership of International Union of

Operating Engineers, Local 501

(hereinafter "Local 501") during a 1983

internal union election for officers.

That election was conducted pursuant to

Local 501’s By-Laws and Title IV, Sections

401 and 402, of the Labor Management

Reporting and Disclosure Act of 1959

[("LMRDA"); 29 USC §481 and 482. ]

Specifically, Petitioners contended

that certain statements contained in the

campaign literature distributed by Fox

(hereinafter "the Fox flyer"), who was

vying with Dalton Wellman, Jr. for the

position of Business Manager of Local 501

in the 1983 internal union election, were

false and defamatory. After service of

the complaint, Respondents Edward Fox,

Ervin, Weeks, Smith, Palmer, Strong and

Bishop - seven of the eight Respondents -

were dismissed from the proceeding

pursuant to an order of the District Court

for the County of Clark. The Court found

that those Respondents were immune from

any liability under state law for the

content of the Fox flyer since they were

required by Federal law to distribute the

campaign material, uncensored, upon the

request of a candidate for union office.

See, Section 401(c) (29 USC Section

481(c)] of the LMRDA (requiring a union,

upon request, to distribute a candidate’s

campaign material.)

Subsequently, on or about April 2,

1990, trial was commenced in this action

with Fox as the sole remaining Defendant. '

Thereafter, on or about September 11,

1990, the Trial Court issued written

Findings of Fact and Conclusions of Law in

which it found (1) that any factual

' Also, prior to trial, the District

Court denied Petitioners’ motion for a jury trial.

This ruling was based upon the Trial Court’s

interpretation of the Nevada State Constitution and

the Nevada Rules of Civil Procedure.

statements made by Fox in the alleged

defamatory campaign material were true;

(2) that, even if the Fox flyer contained

falsehoods, Petitioners were required to

prove fault under the "actual malice"

standard of New York Times v. Sullivan,

376 U.S. 254 (1964), since the speech

occurred during a union electoral

Campaign, and; (3) that various alleged

defamatory statements in the Fox flyer

were in the nature of protected

"rhetorical\political hyperbole" and,

thus, did not form the basis for a

defamation action. To that extent, the

Trial Court issued a judgment in favor of

Fox and dismissed Petitioner’s Complaint

in its entirety. See, App. at pp.4 -

36(sic.) .¢

: References to Petitioners’ appendix are

to the pages upon which the referred to document

appears. Unfortunately, Petitioners have not

consecutively numbered the documents appended to

their Petition and therefore such references are to

the pages as numbered in the Petition.

Petitioners then timely appealed the

matter to the Supreme Court of the State

of Nevada. In an opinion filed January

24, 1992, the Supreme Court for the State

of Nevada affirmed the decision of Trial

Court. See, App. at pp. 1-15 (sic).

Petitioners now seek a Writ of Certiorari

from the January 24, 1992, opinion of the

Supreme Court for the State of Nevada.

ARGUMENT

Put simply, Petitioner’s Brief does

not raise any significant Federal

questions upon which this Court should

grant Certiorari. The decision of the

Supreme Court of the State of Nevada --to

the extent it relies on federal law --

fully complied with all applicable federal

precedents governing this type of

proceeding and does not conflict with any

other decision of a Federal Court or State

Court of last resort.

PETITIONER’S ARGUMENTS CONCERNING

THEIR ALLEGED RIGHT TO A JURY TRIAL

UNDER THE NEVADA CONSTITUTION

RAISE NO FEDERAL QUESTIONS

(PETITIONERS’ ISSUES NUMBERS 4 AND 11)

Petitioners assert, in their

supporting brief, that the Nevada Supreme

Court acted ina manner inconsistent with

the Federal Constitution when it rejected

Petitioners’ claims that they were

entitled to have their case heard by a

jury before the Trial Court. In reality,

this portion of the Nevada Supreme Court’s

decision rested solely upon an

interpretation of the Nevada State

Constitution and the Nevada Rules of Civil

Procedure. See, App. at pp.14-15 (sic).

It is axiomatic that U.S. Supreme

Court jurisdiction only extends to issues

arising under the U.S. Constitution or

federal law. Michigan v. Long, 463 U.S.

1032 (1983). Due to the fact that the

Nevada Supreme Court rejected Petitioner’s

jury trial claim, solely upon state

grounds, i.e. an interpretation of the

Nevada State Constitution and the Nevada

Rules of Civil Procedure, subject matter

jurisdiction over Petitioners’ issues 4

and 11 is clearly non-existent.

PETITIONERS INAPPROPRIATELY ATTEMPT TO

RAISE ISSUES OF FACT WHICH WERE

PREVIOUSLY DETERMINED AGAINST THEM BOTH AT

THE TRIAL COURT AND APPELLATE COURT LEVEL

(PETITIONERS ISSUES NOS. 3,5,9 AND 12)

In essence, Petitioners request the

Supreme Court to engage in a de novo

review of the factual findings made by the

Trial Court. A thorough de novo analysis

of the Trial Court’s factual findings, by

the Nevada Supreme Court, was performed on

appeal in accord with prevailing legal

standards, Harte-Hanks v. Connaughton, 491

U.S. 688 (1989). Under such ciseumietances,.

a request to the U.S. Supreme Court to

engage in further de novo factual review

is inappropriate. Volt Information

Sciences, Inc. v. Board of Trustees, 489

om 8 468, 103 b. 448 (1989).

Certainly, such a request raises no legal

issue worthy of this Court’s plenary

consideration.

Herein, the Nevada Supreme Court,

upon de novo. review, concluded that

Respondent Fox did not make any false

statements of fact concerning the

Petitioners. In this regard, the Nevada

Supreme Court fully agreed with the

factual findings of the Trial Court.

Petitioners’ Issues Nos. 3,5,9 and 12 thus

raise no important questions of unresolved

federal law upon which the Supreme Court

should grant certiorari.

THE NEVADA SUPREME COURT DID NOT ERR IN

AFFIRMING THE DISMISSAL OF RESPONDENTS

EDWARD B. FOX, ERVIN, WEEKS, SMITH,

PALMER, STRONG AND BISHOP

(PETITIONERS’ ISSUE NUMBER 10)

Petitioners also seek Certiorari as

to the Nevada Supreme Court’s affirmance

of the Trial Court’s dismissal, from this

proceeding, of Respondents Edward B. Fox,

Ervin, Weeks, Smith, Palmer, Strong and

Bishop. Those Respondents were dismissed

from this action by the Trial Court on the

basis that the actions of Respondents were

privileged under the LMRDA. Specifically,

the Nevada Supreme Court found, as did the

Trial Court, that, as officers of the

union, Respondents had an obligation under

Section 401(c) of the LMRDA [(29 USC

Section 481) (c)] and 29 CFR Section 452.70

to distribute Fox’s literature to the

membership of Local 501 after an

appropriate request was made to do so.

Upon this background, the Nevada Supreme

Court held that Respondents were immune

from suit since their actions’ were

privileged.

The Nevada Supreme Court correctly

affirmed these Respondents dismissal from

this proceeding since Section 401 (c) of

the LMRDA does impose a - mandatory

obligation on a union and its officers to

distribute the campaign literature of a

candidate for labor organization office.

See, Marshall v. Provision House Workers

Local 274, 623 F.2d 1322 (9th Cir. 1980)

and International Organization of Masters,

Mates, etc. v. Brown, U.S-« - Bam

L.Ed. 2nd 991(1991). Indeed, Petitioners

do not even challenge this interpretation

of LMRDA §401(c). Given this, the holdings

of this Court mandate that an individual

has no liability in defamation’ for

performing such a_ federally required

distribution. Farmers Union v. WDAY, 360

U.S. 525 (1959). (holding that

broadcaster was immune from liability in

state law defamation action based upon

broadcasting campaign materials which

federal law required be broadcast).

THE NEVADA SUPREME COURT DID NOT

DECIDE THE APPROPRIATENESS OF APPLYING

THE "ACTUAL/CONSTITUTIONAL MALICE"

STANDARD TO THIS PROCEEDING, AND, IN ANY

CASE, RESPONDENTS SUBMIT THAT THE

“"ACTUAL/CONSTITUTIONAL MALICE"

WOULD HAVE BEEN THE APPROPRIATE TEST.

(PETITIONERS’ ISSUES NUMBERS 1,2,6,7,8,

12, AND 14)

Petitioners contend that the Nevada

Supreme Court, in its opinion below,

inappropriately applied the

"actual/constitutional malice" standard to

the matter sub judice. A careful review

of the Nevada Supreme Court’s decision

discloses that the Court’s opinion did not

turn on the application of the

"actual/constitutional malice" test but,

instead, rested upon (1) a holding that

Respondent Fox made no false statements of

fact and (2) a holding that statements of

Fox’s opinion were not actionable. See,

App. at pp. 7-13 (sic). Therefore, this

case simply does not present any federal

issue regarding the appropriateness of

applying the "actual/constitutional

malice" test to defamation actions arising

from internal union election campaigns.

Even if this issue was' presented

herein, . the question is wholly

inappropriate for certiorari since it is

an issue upon which the courts have

unanimously agreed. Each and every court

that has visited this issue has applied

the "actual/constitutional malice" test to

defamation actions which stem from

statements made about candidates for union

office during internal union elections.

See Ross v. International Brotherhood of

Electrical Workers (IBEW), 634 F.2d 453

(9th Cir.1980); Ross v. Gallant, Farrow &

Company, 116 Ariz. 298, 569 P.2ad 240

(1977); Batson v. Shiflet, 325 Md. 684,

602 A.2d 1191 (1992); Sheeran v. Colpo,

460 A.2d 522 (Del Sup. Ct., 1983); Gregory

v. McDonnell Douglas Corp., 17 Cal. 3d.

596, 552 P.2d 425 (1976); and Warren v.

Herndon, 115 Cal. App. 3d 141, 171 Cal.

Rpt. 220 (1981).°3 Since there is no

3 Those courts that have decided the

propriety of applying the "“actual/constitutional

malice” test, in defamation proceedings stemming

from campaign statements made during internal union

elections, have all done so in complete accord with

this Court’s decisions in Linn v. United Plant

Guard Workers, 383 U.S. 53 (1966) and Letter

Carriers v. Austin, 418 U.S. 264 (1974). In Linn,

this Court held that the need for uniform federal

labor policy required a partial pre-emption of

state defamation laws where alleged defamatory

statements were made in connection with a “labor

dispute”. This partial pre-emption of state

defamation laws, according to Linn, required

application of the "“actual/constitutional malice”

test of New York Times v. Sullivan, supra.

Subsequently, in Letter Carriers, supra, the Court

expanded the definition of “labor dispute" to

include any situation "...where the policies of the

federal labor laws leading to the protection for

freedom of speech are significantly implicated.”

I.d, 418 U.S. at 279. In the present context, such

policies are clearly in issue---and all courts

conflict between courts of any

jurisdiction -- and since this case does

not present the issue -- certiorari should

be denied.

considering this question have agreed---because

federal labor laws both protect the right of

freedom of speech within union elections and

completely regulate the conduct of such

referendums. See, Sections 101(a)(1), 101 (a)(2),

40l1(c) and 402 of the LMRDA [29 USC Section

411(a)(1), 411(a)(2), 481(c) and 482).

Additionally, Local 501 is a labor organization

which represents employees in interstate commerce

pursuant to Section 2(5) of the Labor Management

Relations Act of 1947, as amended ["LMRA"; 29 USC

Section 152(2)]. The National Relations Board has.

found, under Sections 8(a)(3) and 8(b)(1)(A) of the

LMRA (29 USC Section 158(a)(3) and 158(b)(1)(A)],

that intra-union activities, such as campaigning in

internal union elections, constitutes concerted

activities which are “arguably protected" by

Section 7 of the LMRA (29 USC Section 157). See,

Machinists Lodge No. 707, 276 NLRB 185 (1985);

Operating Engineers Local 139, 273 NLRB 982 (1984),

enf. den., 796 fd. 986 (7th Cir. 1986) and NLRB v.

Machinists District 91, Local 707, 817 F.2d 235

(2nd Cir 1987). As the NLRB has found that intra-

union conduct, such as campaigning for internal

union office, may constitute concerted activities

which are “arguably protected" by Section 7 of the

LMRA, Respondent Fox further submits that

application of the “labor dispute" partial pre-

emption of state defamation laws, which requires

use of the "“actual/constitutional malice” test

pursuant to Letter Carriers and Linn, is

nonetheless appropriate to a factual scenario such

as the one presented here.

THE SUPREME COURT OF THE STATE

OF NEVADA PROPERLY APPLIED THIS COURT’S

DECISION IN MILKOVICH TO THE FACTS HEREIN

AND _ NO CONFLICT EXISTS ON ANY ISSUE

RELATING TO MILKOVICH THAT WOULD JUSTIFY

THIS COURT’S ATTENTION (PETITIONERS ’

ISSUES NUMBERS 3,5,9,12,13 AND 14)

Petitioners next claim that the

Nevada Supreme Court improperly applied

this Court’s holding in Milkovich v.

Loraine Journal Company, 497 U.S. » Bae

L.Ed 2d 1 (1990) to the facts at bar. In

Milkovich, this Court held that a

statement of opinion -- as opposed to a

statement of fact -- is potentially

actionable, under state defamation laws,

only when the message conveyed implies

that the speaker has knowledge of facts

which validate the opinion and_ the

undisclosed facts themselves are either

non-existent or false. Milkovich, 111

L.Ed. 2d at 17-20. Following the above

standard, the Nevada Supreme Court engaged

in a two-step analysis which is fully in

accord with the rule enunciated in

Milkovich.

First, the Nevada Supreme Court

analyzed all of the factual assertions set

forth in the Fox campaign flyer and

determined they were properly proven as

true. Performing a de novo review, cf.

Harte-Hanks, supra, the Nevada Supreme

Court found that the Trial Court made no

error in concluding that Fox’s factual

statements were truthful. Since, the

factual statements contained on the Fox

flyer were found truthful, no liability

could flow therefrom. Ocala Star-Banner

Company v. Damron, 401 U.S. 295 (1971).

Second, with respect to the "opinion"

matters set forth in the Fox flyer, the

Nevada Supreme Court correctly analyzed

those statement in accord with the

Milkovich framework to determine whether

or not the First Amendment would permit a

defamation cause of action. It is without

dispute that, in Milkovich,this Court held

that:

, én Se [Greenbelt

Cooperative Publishing

Associatio Bressle

398 U.S. $(1970)) - [Letter

Carriers v. Austin, 418

Zs S. 264 a - (Hustler

Magazine v. Falwell, 485

U.S. 46 (1988)] line of

cases provide protection

for statements that cannot

[reasonably] be interpreted

as stating "actual facts"

about an individual.

Falwell, 485 U.S. at 50.

This provides assurance

that public debate will not

suffer for lack of

"imaginative expression" or

the "rhetorical hyperbole"

which has-7~ traditionally

added much to the discourse

of our nation. Milkovich,

U.S., 111 L.Ed. 2d at 19,

citing Falwell, 485 U.S. at

53-55.

Taking into account the protection of

"imaginative expression" and\or

"rhetorical hyperbole", as set forth in

Milkovich and its precursors, the Nevada

Supreme Court found that, at most, those

non-factual statements of opinion in the

Fox campaign flyer amounted to -- and the

intended audience understood it as such --

no more than “exaggeration or over broad

generalization." See, App. at pp.12-13

(sic).

In following this approach, the

Nevada Supreme Court’s decision does not

conflict with the holding of any other

court insofar as its application of

Milkovich is concerned. For instance,

those courts which have had an occasion to

apply the holding of Milkovich, have all

analyzed the rule by, initially,

determining whether or not ae false

statement of fact was made and, then,

inquiring as to whether or not = any

"statements of opinion" either implied

knowledge of facts concerning the

Plaintiff or merely constitute

"imaginative expression/rhetorical

hyperbole." cf. Unelko Corp. v. Rooney,

912 F.2d 1049 (9th Cir. 1990) and Gill v.

Hughes, - P.2d -, 278 Cal. Rotr. 306

(1991).

Indeed, Petitioners do not claim any

conflict with the holding of any other

court in regards to this issue as decided,

below, by the Nevada Supreme Court.

Rather, Petitioners’ challenge to the

decision below amounts to no more than a

generalized attack upon the factual

conclusions reached by the Nevada Supreme

Court --- and the Nevada Trial Court ---

when those tribunals applied the Milkovich

einai

standard. See Petitioner’s Brief at pp-

12-13. No reference to the record below

is made by Petitioners to support their

argument that both the Nevada Supreme

Court and the Trial Court improperly

arrived at the factual conclusions with

which Petitioners disagree.

Considering the fact intensive nature

of Petitioners’ assault, on the decision

below, plenary consideration by this Court

is plainly unwarranted. Petitioners fail

to offer any reason to doubt that either

the Nevada Supreme Court or the Trial

Court lacked any basis in fact when

construing the nature, tone and setting of

those non-factual statements that were

found, below, to constitute "rhetorical

hyperbole" which was immune from

defamation liability under the First

Amendment.

To that extent, Certiorari as to the

matters raised in Petitioners’ Issues Nos.

3,5,9,12,13 and 14 would be inappropriate.

CONCLUSION

For the reasons set forth above,

Respondents respectfully submit that

Petitioners have failed to present any

issues in their Petition which warrant the

granting of Certiorari. This Court should,

therefore, deny the Petition.

Dated: 6/2992 ;

Respectfully submitted,

By: Lewis N. Levy, Esq.

LEVY, GOLDMAN & LEVY

Attorneys for Respondents

R.H. FOX, Jr., EDWARD P. FOX,

THOMAS W. ERVIN, KENNETH WEEKS,

ALGINON SMITH, ALTON PALMER,

L.H. STRONG and DAVID BISHOP

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