# Opposition Brief — Wellman v. Fox

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0698%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 820

## 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,

AY

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

ii

CONTENTS PAGE

E.

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

iv

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

Vv

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

1

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

2
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

ae

3
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.

4
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.

5

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

6
other decision of a Federal Court or State

Court of last resort.

A.

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).

ee

4

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.

B.

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

8
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

9

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.

Cs

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

10
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.

ee

11

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).

12

Da

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

13
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

14

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

15

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.

16
Be
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

17
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).

18
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,

19
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,

20
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

21

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.

22

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0698%3A2. Public record. Not legal advice.