Opposition Brief — Hopewell v. Dunker

Supreme Court, U.&

F > FILED

4 OCT 6 185

No. 95-440 CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

RICHARD HOPEWELL,

Petitioner,

VS.

WILLIAM DUNKER, JANET BREKKE, JOHN DOE, JANE DOE,

JOHN ROE, JANE ROE, MIKE MOE, MARY MOE, individually

and in their capacities as employees of the City of Sioux

Falls, Crry OF SIOUX FALLS, MIDCONTINENT BROADCASTING

CORPORATION DBA KELOLAND NEws, STEVE HEMMINGSEN,

JESSICA ARMSTRONG and VARIOUS OTHER UNIDENTIFIED

PERSONS, individually and in their capacities as employees

and agents of Midcontinent Broadcasting Corporation,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

DAVENPORT, EVANS, HURWITZ & SMITH

Timothy M. Gebhart*

P.O. Box 1030

Sioux Falls, South Dakota 57101-1030

(605 )336-2880

Attorneys for Respondents Midcontinent, Hemmingsen and

Armstrong

* Counsel of Record

QUESTIONS PRESENTED

1. Does this case present issues appropriate for this

Court's review under a writ of certiorari?

2. Are the decisions below proper?

LIST OF PARTIES

Respondent Midcontinent Broadcasting Corporation is a

wholly owned subsidiary of Midcontinent Media, Inc.

Neither corporation is publicly held.

- iii -

TABLE OF CONTENTS

Page

OURSTIONS PRESENTED ...... 5.0... 2c cceeees i

LIST OF PARTIES ........ etree ete eee eee ii

RE Es 5 ic his 0 be 6 be ae wes iii

ey Be BS hyo! so yy |. ee ae iv

ePeeeeee Ge’ BEM CAGE ow 6 ce hee l

Se ee oe eae ara 4

I. The Issues Sought to Be Raised Do Not Merit

Invoking the Court's Jurisdiction. .............. 5

II. The Decisions Below Are Correct.............. 7

A. There Was No State Action by KELO News. ...7

B. No Constitutional Right is at Issue. .......... 9

AG ss rea e ee a are ee 13

- Ve

TABLE OF AUTHORITIES

Cases:

Albright v. Oliver, 114 S. Ct. 807

J Eee Cre ea a er ee errr tet wt

American Lease Plans, Inc. v.

Silver Sand Co., 637 F.2d 311

| a rr re ns re ee

Baker v. Howard, 419 F.2d 376

Ce SE a oe hs es ce os

Bender v. City of St. Ann,

816 F. Supp. 1372, 1377 (E.D. Mo. 1993),

affd, 36 F.3d 57 (8th Cir. 1994) ...........

Brooks v. American Broadcasting Cos.,

737 F. Supp. 431 (N.D. Ohio 1990),

affd in part, rev'd in part,

932 F.2d 495 (6th Cif 1991) .............

Burton v. Wilmington Parking

Authority, 365 U.S. 715 (9961) ...........

Bush v. Rauch, 38 F.3d 842

Se ee NR eos oa fw a ks

eo a a ae

Page

California Union Insurance Co. v.

American Diversified Savings Bank,

914 F.2d 1271 (9th Cir. 1990),

CUPL, Ga, We Us FO EIOOE oo vc ceca ka 5

Cinel v. Connick, 15 F.3d 1338

(Sth Cir.), cert. denied,

Re a Se i 8 60k V5 os SSA Bea Ss 9

Cook v. Ashmore, 579 F. Supp. 78

ee EE Sako od eh ks kas 6 kw Oe ee a 10

Dixon v. City of Lawton, 898 F.2d 1443

ee ee PEGS occ aed sb eee kann 12

Farrar v. Cain, 756 F.2d 1148

I ere i Ghd goo ke Od alt oe 13

First National Bank of Arizona v.

Cities Service Co., 391 U.S. 253 (1968) ........... 6

FSK Drug Corp. v. Perales,

ee ee Oe Gt ED So's obs Sv ode Se oe eS 9

Griffin v. Breckenridge,

eee EN 5 0's 6 bore ec so ee a cee kas 10

Huebschen v. Department of Health

and Social Services, 716 F.2d 1167

See BPE See the ee i oe aka ek 10

- Yi -

Page

Humphreys v. Roche Biomedical

Laboratories, Inc., 990 F.2d 1078

Cs Ge, SIGE ssc ta hee EEA 06 6 PCC rh eee 5

In re Hughes County Action No. Juv. 90-3,

ve & fw By Fs 8 |: eee eres ee 9

International Surplus Lines Insurance

Co. v. Wyoming Coal Refining Systems,

hac... S3:F.38 S60 CH GA, Tee so we eS 5

Janklow v. Newsweek, 788 F.2d 1300

(8th Cir.) (en banc), cert. denied,

G9 US. Se ha 6 ee ea Re ee v)

Jones v. Helms, 452 U.S. 412 (1981) .............. 9

Lahaza v. Azeff, 790 F. Supp. 88

GD. 6, 195 oe Per EEA Pi ee eee 11

Licari v. Ferruzzi, 22 F.3d 344

(i gs A> | pee ee eee ee ee? ya 5

Lunderstadt v. Colafella,

SES FS G6 Coed Chr, TO o'.n e e cen eke uae as 5

Lynch v. Cannatella, 810 F.2d 1363

(Sa Gi. TOT wk cc vole eee 8a eee 12

- Vii -

Page

M.W. Zack Metal Co. v. International

Navigation Corp., 675 F.2d 525 (2d Cir.),

cert. denied, 459 U.S. 1037 (1982) ............4.. 6

Marsh v. Alabama, 326 U.S. 501 (1946)............ x

Mimms v. Philadelphia Newspapers,

Inc., 352 F. Supp. 862 (E.D. Pa. 1972) ............ ®

Monitor Patriot Co. v. Roy,

ee ee no i o's Pak idly 0k while wes 10

New York Times v. Sullivan,

= bo aia bn BS GOS a kee Sie Bhs 10

Nguyen v. CNA Corp., 44 F.3d 234

OES | BE ea ee ee ee ee 5

Oyler v. Boles, 368 U.S. 448 (1962) ...........-. 10

Paddington Partners v. Bouchard,

SRA Bi: FR e RS eee rs Ser 5

Paul v. Davis, 424 U.S. 693 (1976) ........... 11, 12

Personnel Administrator v. Feeney,

PR ER a ee re 2 a 10

Phelps v. Wichita Eagle-Beacon,

ee Ge EB Ul i a eae 8

- Vili -

Page

Sioux Falls Newspapers, Inc. v.

City of Sioux Falls, Civ. 85-305,

COs Ge, Fee Se EE Fa ek ee a ds PERT ARA 7

Stern v. Sommerville Communications

Corp., 529 F. Supp. 29 (E.D. Mich. 1981) ......... 10

Tosh v. Buddies Supermarkets, Inc.,

SES FAG mee Cle Ge OPE OE: Sek ove iw eee ences 11

Trautvetter v. Quick, 916 F.2d 1140

CR a SP ev Cas cae ele eed ko as 10

United States v. On Leong Chinese

Merchants Association Building,

918 F.2d 1289 (7th Cir. 1990),

cert. denied, 502 U.S. 809 (1991) ................ 5

Wade v. Goodwin, 843 F.2d 1150 (8th Cir.),

cert. denied, 488 U.S. 884 (1988) ............... 11

Zenith Radio Corp. v. Hazeltine

Research, Inc., 401 U.S. 321 (1971) .............. 5

Statutes:

ae Us ROO 6 oe Ce CRI Ee 6

i en ee 66k ni eS be 0 ace ee 1, 3, 12

Page

OE Si Oe BE CN Cie eee eee keke asec rans 10

S.D. Codified Laws Chap. 20-11 ........eccesees 12

S.D. Codified Laws § 15-6-60(b) ..........-.--4-. 6

SD: Caditind Tame S Friis ow cc eens 4

Se UB 2 Sra 4

Rules:

Federal Rule of Civil Procedure 26 ............... 6

Federal Rule of Civil Procedure 56(f)............ 4-6

Supreme Court Rule 13.1 ........ ccc cc cescecees 6

Supreme Court Rule 15.2 2. ......- eee e ee eeeeee 4

Other:

7 MOORE’S FEDERAL PRACTICE,

oe Ss Sg bce ee ae awe a ee es 6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

RICHARD HOPEWELL,

Petitioner,

VS.

WILLIAM DUNKER, JANET BREKKE, JOHN DOE, JANE DOE,

JOHN ROE, JANE ROE, MIKE MOE, MARY MOE, individually

and in their capacities as employees of the City of Sioux

Falls, Ciry OF SIOUX FALLS, MIDCONTINENT BROADCASTING

CORPORATION DBA KELOLAND NEws, STEVE HEMMINGSEN,

JESSICA ARMSTRONG and VARIOUS OTHER UNIDENTIFIED

PERSONS, individually and in their capacities as employees

and agents of Midcontinent Broadcasting Corporation,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner Richard Hopewell (“Petitioner”) brought a 42

U.S.C. § 1983 action in October 1993 in United States

District Court for the District of South Dakota against the

City of Sioux Falls, South Dakota, and various city

employees (hereafter referred to as “City”), and Midcontinent

Broadcasting Corporation, d/b/a KELOLAND News, Steve

Hemmingsen and Jessica Armstrong (hereafter referred to as

Sas

“KELO News”) as a result of news stories broadcast in

October 1990 and an ensuing state court defamation action

by Petitioner against KELO News. The lawsuit was

Petitioner's second attempt to seek redress for imagined

wrongs committed against him when he was an unsuccessful

candidate for election to a South Dakota judgeship in 1990.

The events giving rise to the lawsuit began a number of years

earlier.

In the spring of 1978, Petitioner, an attorney, was

arrested in a Sioux Falls drugstore, where he was found stark

naked. Petitioner was placed under arrest for attempted rape

by the Sioux Falls Police Department. His arrest and the

events preceding and following it were the subject of police

records and reports with local law enforcement and mental

health agencies.

Petitioner became a candidate for state judicial office in

1990. After the campaign began, his arrest was the subject

of coverage by local news media. KELO News broadcast

news stories about Petitioner's 1978 encounter with the police

and ensuing arrest. The stories were based in part on

information contained in police records.

Petitioner brought a defamation action against KELO

News in state court as a result of the stories. In that lawsuit,

KELO News filed an affidavit from the police officer who

arrested Petitioner in 1978. It also issued a subpoena’for the

Sioux Falls Police Department's records, which the City

turned over for in camera review by the state court. The

court released certain records to KELO News and sealed

x oe

others. In January 1994, summary judgment was entered in

favor of KELO News in the defamation action!

The federal lawsuit claims Petitioner's civil rights were

violated because information contained in police records was

used as part of the basis for the news Stories, the City

allowed the arresting officer to sign the affidavit in the

defamation lawsuit and turned over police records for in

camera inspection in that action. All Defendants filed

motions to dismiss for failure to state a claim. Petitioner

then filed amended and second amended complaints, to

which all Defendants filed renewed motions to dismiss. At

least one of the motions to dismiss requested in the

alternative that the District Court grant summary judgment.

Petitioner responded with a motion to file a second and third

amended complaint.

On February 24, 1994, the District Court entered an

order allowing the second amended complaint but denying

leave to file a third amended complaint because a copy of

that proposed complaint was not filed with the motion as

required by local court rules. The Court elected to treat the

motions to dismiss as motions for summary judgment and set

a hearing date.

Various affidavits and other material were submitted and

Petitioner filed a motion to continue the summary judgment

hearing. The District Court denied the motion to continue

and granted summary judgment. It ruled KELO News was

not acting under color of state law and, hence, there was no

State action as required by 42 U.S.C. § 1983.

‘An appeal is pending before the South Dakota Supreme

Court.

a ee

The Eighth Circuit Court of Appeals affirmed in a per

curiam opinion. A three-judge panel ruled none of

Petitioner's constitutional were implicated and that the

District Court did not abuse its discretion in denying

Petitioner's motion to file a third amended complaint and the

Rule 56(f) motion to continue the summary judgment

proceedings. No petition for rehearing was filed.

ARGUMENT

Supreme Court Rule 15.2 requires counsel to draw to the

Court's attention “any perceived misstatement of fact or law”

that bears on the issues that would be before the Court. The

Petition in this case is full of misstatements. Perhaps most

flagrant is one which pervades the Petition and upon which

it is predicated. The Petition begins with the assertion that

on May 28, 1978, Petitioner was “detained” by police for a

“reason other than an arrest for a criminal offense.” Petition

at 4. The fact is, however, that when Petitioner was placed

in custody the arresting officer filled out an “ARREST

REPORT” that specifically states Petitioner was “arrested” for

“attempted rape.” This also refutes Petitioner's claim that

KELO News broadcast defamatory information. Defamation

requires a false statement. See S.D. Codified Laws §§

20-11-3, 20-11-4 (defining libel and slander as a “false”

publication).

Petitioner states his proposed third amended complaint

was filed with the District Court. Petition at 11. A review

of the District Court record demonstrates this statement is

false. He also asserts discovery information was “withheld”

in the state defamation action. Jd. This statement omits the

fact the state trial court, applying rules virtually identical to

the Federal Rules of Civil Procedure, ruled at least three

= es

times that Petitioner had not made the showing necessary to

obtain discovery.

I The Issues Sought to Be Raised Do Not Merit Invoking

the Court's Jurisdiction.

The factors that justify exercise of this Court's discretion

to issue a writ of certiorari are not present here. For

example, the first two “issues” deal with the denial of

Petitioner's motions to amend his complaint and to continue

the summary judgment proceedings. This Court has long

recognized that whether to allow leave to amend is within the

discretion of the trial court. Zenith Radio Corp. v. Hazeltine

Research, Inc., 401 U.S. 321, 330 (1971). Similarly, the

courts of appeals agree that grant or denial of a Rule 56(f)

motion is within the discretion of the district court. See

Licari v. Ferruzzi, 22 F.3d 344, 350 (ist Cir. 1994);

Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d

Cir. 1994); Lunderstadt v. Colafella, 885 F.2d 66, 71 (3rd

Cir. 1989); Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.

1995); American Lease Plans, Inc. v. Silver Sand Co., 637

F.2d 311, 317 (Sth Cir. 1981); Bush v. Rauch, 38 F.3d 842,

849 (6th Cir. 1994); United States v. On Leong Chinese

Merchants Association Building, 918 F.2d 1289, 1294 (7th

Cir. 1990), cert. denied, 502 U.S. 809 (1991); Humphreys v.

Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1081

(8th Cir. 1993): California Union Insurance Co. v. American

Diversified Savings Bank, 914 F.2d 1271, 1278 (9th Cir.

1990), cert. denied, 498 U.S. 1052 (1991); International

Surplus Lines Insurance Co. v. Wyoming Coal Refining

Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995).

Here, the Eighth Circuit determined the District Court

did not abuse its discretion in denying those motions.

sh

Petitioner has not demonstrated why this Court should review

that exercise of discretion. This is particularly so with

respect to the ruling on the motion to amend. The basis of

the District Court's ruling was Petitioner's failure to comply

with local rules of court. Petition at 39. No reason exists

for this Court to review the District Court's application and

enforcement of its local rules.

Moreover, the denial of these motions comports with

prior decisions. As noted, the discovery sought by the Rule

56(f) motion was information that was the subject of court

orders entered in the defamation action under discovery rules

identical to the Federal Rules of Civil Procedure. Rule 56(f)

discovery is less extensive in scope than that obtained under

Rule 26. First National Bank of Arizona v. Cities Service

Co., 391 U.S. 253, 298 (1968). If Petitioner was not entitled

to discovery under Rule 26, he cannot claim entitlement by

virtue of Rule 56(f). His motion was simply an improper

collateral attack on the state court orders.

Similarly, in Issue 7, Petitioner claims “fraud” was

worked on the state court in the defamation action. This

Court, however, is not being asked to review the state

proceedings and would not have jurisdiction to do so until

they are concluded. See 28 U.S.C. § 2101(d); Sup. Ct. R.

13.1. Petitioner has a remedy under South Dakota law. S.D.

Codified Laws § 15-6-60(b) allows a judgment to be set

aside on the grounds of “fraud” or “fraud upon the court.”

Petitioner can not, however, invoke this Court's jurisdiction

when he has the opportunity to raise the claims in the court

in which they occurred, something he has not done. Cf

M.W. Zack Metal Co. v. International Navigation Corp., 675

F.2d 525, 529 (2d Cir.), cert. denied, 459 U.S. 1037 (1982).

See also 7 MOORE'S FEDERAL PRACTICE, {| 60.37[3] (1992).

= a

Il. The Decisions Below Are Correct.

Petitioner asserts the decisions below conflict with

decisions of this Court and two federal circuit courts of

appeals. The fact is the courts below properly applied

existing precedent.

A. There Was No State Action by KELO News.

It is crucial to ask just what conduct of KELO News is

Claimed to have violated Petitioner's civil rights. That

conduct is obtaining information from police records? and

using that information in a news story on a judicial election.

It is absurd to assert that gathering and disseminating news

can constitute state action.

This is demonstrated by the analogous case of Brooks v.

American Broadcasting Cos., 737 F. Supp. 431 (N.D. Ohio

1990), affd in relevant part, rev'd in part, 932 F.2d 495 (6th

Cir. 1991). Plaintiff sought to amend his complaint for libel

and invasion of privacy against ABC News to add a claim

for conspiracy to violate his civil rights. 737 F. Supp. at

433-34. The district court determined the amendment could

not withstand a motion to dismiss. Jd. at 434, 438-40. After

first noting that defamation and invasion of privacy do not

constitute deprivation of constitutional rights, the court found

there was no state action. It said:

*At least one South Dakota court has held the press has an

“unquestionable[]” constitutional right of access to the very type

of records at issue here. Sioux Falls Newspapers, Inc. v. City of

Sioux Falls, Civ. 85-305, (2d Cir., July 9, 1985).

-

the only substantive point made by [plaintiff] is that

defendants had access to official investigatory

materials in preparing their broadcast. News

reporters often have access to official reports and

documents to aid them in investigating and

preparing a story, yet that alone does not convert

these acts into state action. To hold otherwise

would be to render many actions by news agencies

state actions and this would dilute the historic

disassociation between the news media and

government. The facts as alleged merely

demonstrate defendants were acting as any news

reporting organization typically does and this does

not constitute state action.

Id. at 440. See also Phelps v. Wichita Eagle-Beacon, 886

F.2d 1262, 1271 (10th Cir. 1989) (mere publication of an

article based on information obtained from government

officials not alone sufficient to constitute state action);

Mimms v. Philadelphia Newspapers, Inc., 352 F. Supp. 862,

865 (E.D. Pa. 1972) (no state action when reporter and

photographer obtained access to prison from warden because

"[t]hey are newspaper people whose orbit is far from the

governmental sphere and, by virtue of the first amendment,

essentially insulated from it.”).

Using government documents as a source of information

does not convert KELO News into a state actor. There is no

interdependent relationship with the City, cf Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961), nor is

KELO News engaged in a traditional state function, cf

Marsh v. Alabama, 326 U.S. 501 (1946). The City does not

require or encourage nor is it significantly involved in the

newsgathering process. To take such a view would mean

ne

State action exists any time a reporter reviews or uses a

record maintained by a public official. To convert that into

state action not only undercuts, it threatens the basic news-

gathering process, a process government must be wary of

intruding upon. Cf. Janklow v. Newsweek, 788 F.2d 1300,

1306 (8th Cir.) (en banc), cert. denied, 479 U.S. 883 (1986);

Cinel v. Connick, 15 F.3d 1338, 1346 (Sth Cir.), cert. denied,

115 S. Ct. 189 (1994) and cases cited therein.

B. No Constitutional Right is at Issue.

The main thrust of the Court of Appeals was none of

Petitioner's constitutional rights were implicated. Petition at

33-35. This is correct, as is seen by reviewing the alleged

violations in turn.

Petitioner first asserts disclosure of his arrest record

violated his right to equal protection. Essentially, he claims

general rules were applied to him in an arbitrary or

discriminatory way. Cf. Jones v. Helms, 452 U.S. 412, 423-

24 (1981). In such cases, a plaintiff must first show that,

compared with others similarly situated, he was selectively

treated. See FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d

Cir. 1992). See also Bender v. City of St. Ann, 816 F. Supp.

1372, 1377 (E.D. Mo. 1993), affd on other grounds, 36 F.3d

57 (8th Cir. 1994). Petitioner claims only that certain in-

formation was provided to KELO News because he was a

candidate for election to a judicial position. There is no

assertion he was treated differently than others similarly

situated. In fact, if other judicial candidates or their family

members appeared in public in the nude or were arrested for

attempted rape, there would likely be press coverage of those

events, too. Cf In re Hughes County Action No. Juv. 90-3,

452 N.W.2d 128, 131 (S.D. 1990) (detailing extensive press

SS

coverage given juvenile case involving alleged incident at

governor's residence). Thus, he fails the most basic element

of any equal protection claim.

Second, what the Equal Protection Clause prohibits is

selective enforcement based on an “unjustifiable standard

such as race, religion or other arbitrary classification.” Oyler

v. Boles, 368 U.S. 448, 456 (1962). It is not enough for a

plaintiff to show he was treated unfairly as an individual;

rather, the particular course of action must have been taken

“at least in part ‘because of,’ not merely ‘in spite of,’ its ad-

verse effects upon an identifiable group.” Huebschen v.

Department of Health and Social Services, 716 F.2d 1167,

1171 (7th Cir. 1983) (quoting Personnel Administrator v.

Feeney, 442 U.S. 256, 279 (1979)) (emphasis in original).

Accord, Trautvetter v. Quick, 916 F.2d 1140, 1150-52 (7th

Cir. 1990). See also Cook v. Ashmore, 579 F. Supp. 78, 85

(N.D. Ga. 1984) (quoting Griffin v. Breckenridge, 403 U.S.

88, 102 (1971)). Cf Stern v. Sommerville Communications

Corp., 529 F. Supp. 29, 30-31 (E.D. Mich. 1981) (holding no

claim exists under 42 U.S.C. § 1985(3) against newspaper for

alleged conspiracy with school system officials to violate a

minor's civil rights absent class-based animus). Petitioner's

“class” is evidently candidates for judicial office. Even

constitutional law, though, treats candidates for public office

differently than private individuals. See New York Times v.

Sullivan, 376 U.S. 254 (1964) (imposing stricter burden of

proof on public officials in libel actions). See also Monitor

Patriot Co. v. Roy, 401 U.S. 265, 274 (1971). Any different

treatment, though, is not based upon animus. Rather, it is

based on the fact the individual is seeking a position of

public trust, confidence and authority.

—

Petitioner also asserts that disclosure of this embarrassing

information violated his substantive and procedural due

process rights. The result here is dictated by a decision of

this Court mentioned only in passing by Petitioner -- Paul v.

Davis, 424 U.S. 693 (1976)

Even if some substantive due process right is

implicated,’ Paul holds that release of criminal records does

not violate substantive due process. In rejecting a substantive

due process claim in connection with the posting of plaintiffs

name and photograph on a list of “active shoplifters,” this

Court noted that the plaintiff

claims constitutional protection against the dis-

closure of the fact of his arrest on a shoplifting

charge. His claim is based, not upon any challenge

to the State’s ability to restrict his freedom of action

in a sphere contended to be ‘private,’ but instead on

a claim that the State may not publicize a record of

any Official act such as an arrest. None of our

substantive privacy decisions hold this or anything

like this, and we decline to enlarge them in this

manner.

424 U.S. at 713. Accord, Wade v. Goodwin, 843 F.2d 1150

(8th Cir.), cert. denied, 488 U.S. 884 (1988); Tosh v. Buddies

Supermarkets, Inc., 482 F.2d 329, 332 (Sth Cir. 1973); Baker

v. Howard, 419 F.2d 376 (9th Cir. 1969); Lahaza v. Azeff,

790 F. Supp. 88, 93 (E.D. Pa. 1992).

“The protections of substantive due process have for the

most part been accorded to matters relating to marriage, family,

procreation, and the right to bodily integrity.” Albright v.

Oliver, 114 S. Ct. 807, 812 (1994).

- 49.

Paul likewise held that the interest in reputation is not a

liberty or property interest protected by the Due Process

Clause. It said:

the interest in reputation alone which respondent

seeks to vindicate in this action in federal court is

quite different from the ‘liberty’ or ‘property’

recognized in [the Court's procedural due process]

decisions. [State] law does not extend to respondent

any legal guarantee of present enjoyment of reputa-

tion which has been altered as a result of petitioners’

actions. Rather his interest in reputation is simply

one of a number which the State may protect

against injury by virtue of its tort law, providing a

forum for vindication of those interests by means of

damages actions.

424 U.S. at 711-12. Similarly, South Dakota law does not

grant Petitioner any legal guarantee of present enjoyment of

his reputation. Rather, South Dakota provides him, like any

other citizen, protection of his reputation via its tort law and

an action for damages. See S.D. Codified Laws Chap. 20-11.

Petitioner has already pursued this avenue of relief without

success.

KELO News would finally note that Petitioner freely

cries conspiracy. “Blind allegations” of conspiracy, though,

are insufficient to withstand dispositive motions. Lynch v.

Cannatella, 810 F.2d 1363, 1369-70 (Sth Cir. 1987).

Moreover, a § 1983 plaintiff must establish the deprivation

of a protected right because it is the deprivation, not the

conspiracy, that is the essence of the claim. See Dixon v.

City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990);

ee

Farrar v. Cain, 756 F.2d 1148, 1151 (Sth Cir. 1985). As

detailed above, there is no deprivation here.

CONCLUSION

Respondents Midcontinent Broadcasting Corporation,

d/b/a KELOLAND News, Steve Hemmingsen and Jessica

Armstrong request the Court deny the Petition for Writ of

Certiorari because the case presents no issue appropriate for

the Court's review and because the decisions below were

proper.

Respectfully submitted,

Timothy M. Gebhart*

DAVENPORT, EVANS, HURWITZ & SMITH

P.O. Box 1030

Sioux Falls, South Dakota 57101-1030

(605)336-2880

Attorneys for Respondents Midcontinent

Broadcasting Corporation, Steve

Hemmingsen and Jessica Armstrong

* Counsel of Record