Appeal. No. 86-678

WILLIAM THOMAS, ET. AL.
Appellants

v.

WASHINTON TIMES, ET AL., Appellees.

v. Appeal From the Superior Court
of the District of Columbia,
Civil Division

BRIEF FOR APPELLANT

WILLIAM THOMAS
1440 N Street, #410
Washington, DC 20005
(202) 462-3542

Appellant Pro Se, in forma Pauperis

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . ii

Statement of the Issues . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . 1

Argument:

IF APPELLANT FAILED TO MAKE SERVICE PROPERLY THE COURT SHOULD HAVE NOTED THAT FACT AND ALLOWED FOR CORRECTION OF THE ERROR

. . . . . . . . . . . . . . . . . . 4

II. IT WAS NOT ASCERTAINABLE THAT NO SET OF FACTS MIGHT HAVE BEEN PROVEN IN SUPPORT OF APPELLANTS' CLAIM

. . . . . . . . . . . . . . . . . . 5

III. THE COURT HAS FAILED TO PROVIDE APPELLANT WITH ANY EXPLANATION FOR DISMISSAL

. . . . . . . . . . . , . . . . . . 10

VI. IF APPELLANT FAILED TO STATE A CLAIM, THE COURT SHOULD HAVE ALLOWED FOR THE APPELLANT, PROCEEDING PRO SE, TO AMEND HIS COMPLAINT

. . . . . . . . . . . . . . . . . . 11

Conclusion..................... 12

Prayer for Relief . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Service . . . . . . . . . . . . . . . . . . 15

Appendix Required by Rule 30 D.C.C.A. . . . . . . . . . . . 16

TABLE OF AUTHORITIES

Berman v. Watergate West Inc, D.C.App.391 A.2d 1351(1978).. 12

Bielitski v. Obadiak, 15 Sask 153; 65 DLR 627 (1922) 9

Brown _ Dufrey, 134 NE2d 469, 472-474; 1 2d 190 6

Buffington v. Continental Casualty Co., 69 N.M. 365,

367 P.2d 539 (1961) 13

Clark _ Associated Retail Credit Men, 70 App D.C. 187, 188;

105 F2d 65 9

Conley v. Gibson, 355 US 41, 45, 46 (1957) 5

DeJonge _ Oregon, 299 U.S. 165 7

Glasson _ Louisville, 518 F.2d 906 (1977) 10

Great Atlantic and Pacific Tea Co. v. Roch, 160 Md 189;

153 A 22 (1931) 9

Haines v. Kerner, 404 US 519 (1972) 13

Halberstam _ Welch 705 F2d 472, 479 (D.C.App 1983) 10

47 Harvard Law Review 1033, 1053 (1938) -v

Klenk v. Capitol Transit Co. D.C.Mun.App. 139

A.2d 275, 277 (1958) 5

Maqruder, Mental and Emotional Disburbance in the Law

of Torts, 47 Harvard Law Review 1033, 1053 (1938) -v

McBryde v. Amoco Oil cO. 404 A.2d 202, 203 5,10

Morningstar _ Black and Decker, 253 S.E.2d 666 (1979) 12

Nickerson v. Hodges, 146 La 735; 84 So. 37 (1920) 9

owens v. Tiber Island Condominium Assoc., D.C. App

373 A 2d 890, 893 (1977) 5

Restatement (2d) of Torts, Section 46 (1965) 6,9

Rosen & Associates, Inc v. Huritz, 465 A2d 1114

(DC App 1983) 4,5

Sills v. Bureau of Prisons USDC 84-5844, filed May 14,1985 13

Terminiello v. Chicago, 337 US 4,5 (1948) 7

Walden _ Covington 415 A.2d 1077 9

Wilkinson v. Downtown, 2 QED 57 (1897) 9

Wirtz v. Young Electric Sign Co 315 F2d 326 (10 Cir. 1963) 13

Wright & Miller, Federal Courts & Practice,

Section 1357 at 602-603 (1969) 12

STATEMENT OF THE ISSUES

Appellants' claim pivots around incidents which grew out of certain activities in which they were lawfully engaged, and which appellees allegedly objected to. Appellants claim they have been actively involved in seeking truth, to the best of their abilities, and communicating their understanding of truth to the community in which they are living. The record here indicates absolutely no reason to believe otherwise.

Appellants come before the Court seeking civilization. In bygone ages truth-seekers have been maligned, mistreated, or worse, merely because their consciences compelled them to question the credibility of the conceptions, perceptions, and self-deceptions of the various communities within which they found themselves. Socrates, John the Baptist, Giordano Bruno, to name but a few, were contemporaneously considered cranks, and sorely abused by their less insightful fellows.

"Without law there is chaos." (Judge Noel Kramer, D.C. Superior Court, August 5, 1986).

Of course we humans would like to think that we have come of age, civilly speaking, that we have entered an Age of Reason.

"Justice is the greatest concern of Man on Earth. Where her temple stands there exists the foundation of social security, happiness, and the progress of our race." (Inscription on the Justice Department Building, Washington, D.C.)

"As you treat the least among you, so you have treated

me." (Jesus Christ; Matthew 25:40.)

In the instant matter it is prima facie that appellants ... homeless, indigent individuals ... are some of the "least among you." Appellants press this matter in part for a determination as to the degree of "equality before the law" available within this system.

"The law (with respect to the infliction of emotional distress) is still in a stage of development, and the ultimate limits of this tort are not yet determined." (See Magruder, Mental and Emotional Disturbance in the Law of Torts, 47 Harvard Law Review 1033, 1053 (1938).)

The issue here is whether appellants, as active truth-seekers, or even simply as law-abiding individuals exercising protected conduct within the legal jurisdiction of the Constitution of the United States of America, are entitled to redress for unprovoked attacks against their persons, property, or pursuit of happiness under the laws of the District of Columbia.

Appellants believe the Superior Court erred in the judgment filed below in this matter, and ask:

I. Whether Appellants' Complaint was improperly served

II. Whether Appellants' Complaint stated a claim

III. Whether Superior Court Judge erred in failing to state a reason for dismissal.

IV. Whether Appellant, acting as Plaintiff Pro Se in this case, should have been allowed to amend their Complaint.

STATEMENT OF THE CASE

Appellants are several individuals without any political affiliations, who have consistently over the past five years been maintaining a socially beneficial, Constitutionally-protected, and National Park Service-permitted demonstration in support of a more rational nuclear weapons policy. Appellants have been peacefully engaged in this demonstration, consistently and over a long period of time, in front of the White House. Their intent in this regard has been to arrive at a mutually agreeable, and accurate, perception of reality with the community within which they have been abiding. Appellants have promoted the concept of "peace through reason and logic" for the resolution of international and interpersonal conflicts. Appellants brought a suit sounding in tortious conduct to recover damages for injuries allegedly received through the intentional infliction of emotional distress when appellees' agent, allegedly in a conspiracy with others (unnamed in the complaint as initially filed), acted to wrongfully remove appellants' constitutionally protected, and NPS-permitted, signs from appellants' possession in a public park. Appellants further claimed to have suffered defamation and injury from a libelous and prejudicial misrepresentation of their a-political communicative activities, which was written by appellee's agent, published and distributed by appellees.

Appellees' agent, Steve Masty, allegedly by prearrangement with members of an oganization known as "Young Americans of Freedom," participated in or abetted a hostile physical action against appellants and their property, allegedly to both disrupt and (in Masty's later article) defame appellants' legitimate and privileged activity.

Appellants allege that the motive of appellees was to further their own political interests, particularly promoting their mutually-held political philosophy of "peace through genocidal strength."

Appellants filed a pro se complaint, in forma pauperis, on February 6, 1986.

On March 12, 1986, counsel for appellees filed a Motion to Dismiss and to Quash Service of Process. To this Motion counsel appended a naked copy of the article written by Mr. Masty in connection with the alleged "raid" of July 4, 1985. Counsel did not bother to include so much as a Declaration or any writing which even pretended that the information in the article was true or accurate. Rather counsel was content, and the court apparently accepted, the mistaken representation that;

"(Appellant does not) take issue with the accuracy of the description of those activities contained in the July 4, 1985 (sic) Washington Times article..." (Motion to Dismiss at 4, filed March 12, 1986).

At the very best this representation is optimistic, but, nonetheless, totally incorrect.

Appellants would have been prepared to stipulate to certain limited representations made in Mr. Masty's article. Specifically:

1. "It's Independence Day, 4 AM, and Lafayette Square is almost quiet. Among the ... posters, signs and billboards ... across from the White House, a few people are stirring."

2. "A white van and a few cars screech to a halt curbside, disgorging two dozen people, one wearing a blue blazer and a tie. They begin dismantling (and damaging) posters, stacking them in a van."

3. "This is the work of ... Jay Young (a man nearing middle age) ... who works days as the National Chairman of the Young Americans for Freedom."

4. "'This is terrible,' says (a woman from Virginia), wringing her hands, 'it's un-American.' She explains that she often stops here to read the signs."

Beyond those stipulations, appellants believe Mr. Masty's article is a false, contrived, and prejudiced concoction intended to defame appellants, white-wash the violent, "un-American" actions of Mr. Young, and his "Young Americans for Freedom," and downplay the role of appellees' agents (Mr. Masty, and a photographer who accompanied him) in the episode.

Further, appellants had offered to amend their Complaint (Opposition to Defendant's Motion to Dismiss and to Quash Service of Process, Memo at 5, filed March 25, 1986; see also, Motion for Summary Reversal, at 10, filed in this Court May 8, 1985).

If appellants' claims are well-founded, appellees' actions are clearly outrageous. Certainly for the Court to allow a public newspaper, an instrument capable of influencing public opinion on a broad scale, to glorify a barbaric attack on harmless individuals pursuing legitimate social intercourse would threaten the very fabric of individual freedom of expression and democracy. If a public carrier such as the Washington Times may with impunity falsely portray dedicated individuals as drunks, bums, or lunatics, or expose them to public hatred and the likelihood of physical assault by falsely representing peaceful nonpartisans as "screwball" "leftists," appellants suggest that such a precedent would place the individual expressor of a minority opinion at the mercy of powerful publication machines, heralding the breakdown of civilization, which the Court should not permit.

The merits of appellants' claims have not received even cursory examination.

On April 3, 1986 the Court, Judge Joseph Hannon, filed an Order granting counsel's Motion to Dismiss sue sponte.

In this setting, it would certainly seem that Judge Hannon has reached beyond the pleadings, and found a decision on facts based on the assumption that Mr. Masty's article was a true and accurate representation of reality, and thereby dismissed appellants' action.

Appellants humbly submit that if this is what happened and can somehow be considered "proper," then: a) there is no "equality before the law," and b) this is not an ethical system.

ARGUMENT

I. IF APPELLANT FAILED TO MAKE SERVICE PROPERLY THE COURT SHOULD HAVE NOTED THAT FACT AND ALLOWED FOR CORRECTION OF THE ERROR

"A summons and complaint may be served upon a defendant ... by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served...." (Super.RulesCiv.P. 4 (c)(ii).)

On February 6, 1986, appellant filed, in the Superior Court, a pro se complaint, which was served upon two appellees pursuant to Sup.RulesCiv.P. 4 (c)(ii). (See Motion for Summary Reversal, Attachments B. B(1), C, and C(1).)

On March 12, 1986 counsel for appellees filed a Motion to Dismiss And To Quash Service Of Process. In support of their argument to quash process appellees referred loosely to Rosen and Associates, Inc. v. Hurwitz, 465 A2d 1114 (DC App 1983).

Thereafter, on March 26, 1986 appellant served the registered agent of News World Communications, pursuant to Sup. Rules Civ. P.4 (C) (ii), and counsel's stated objection to service of process. (See Motion for Summary Reversal Attachments D, and D(1). It should be noted that Attachments D, D(1), C, C(1), B. and B(1) reflect that the Certified Mail Receipts in all cases were signed by one "H. Cavanaugh.")

Appellant pointed out that:

"Even if trial court was correct in striking defendants' Motions to Quash Service of Process ... trial court could not enter a default judgment against those defendants.... Entry of a judgment for damages ... without a hearing, was error...." (Rosen and Assoc. v. Hurwitz, at 1115.)

II. IT WAS NOT ASCERTAINABLE THAT NO SET OF FACTS MIGHT HAVE BEEN PROVEN IN SUPPORT OF APPELLANTS' CLAIM

"Dismissal for failure to state a claim upon which relief can be granted is proper only where it appears beyond doubt that plaintiff can prove no set of facts supporting its claim which would enable him to relief." (See Fed. Rules Civ. P. Rule 12(b)(6), 28 USCA.) McBryde v. Amoco Oil Co. 404 A.2d 202.)

"For purposes of a motion to dismiss for failure to state a claim, complaint must be construed in light most favorable to plaintiff and its allegation taken as true." (See Fed.Rules. Civ. P. 12(b)(6), 28 USCA.) (Ibid.)

"Dismissal for failure to state a claim upon which relief can be granted is proper under Super.Ct.Civ.R. 12(b)(6) (which is substantially the same as Rule 12(b)(6) of the Fed. Rules Civ. P.) only where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Owens v. Tiber Island Condominium Assoc., D.C. App 373 A 2d 890, 893 (l977), quoting Conley v. Gibson, 355 US 41, 45, 46 (1957). For purposes of that motion, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Klenk v. Capitol Transit Co. D.C. Mun. App. 139 A.2d 275, 277 (1958)." (ibid).

In a complaint for damages sounding in tort, intentional infliction of emotional distress, defamation, assault, destruction of property, and conspiracy, appellants allege that an employee of appellees (Washington Times, World News Communications), who was acting in the scope of his employment, engaged in a civil conspiracy with identifiable members of a group called the Young Americans For Freedom to assault appellants and their property for the purpose of justifying and aggrandizing their joint political opposition to the content of appellants' message. (See, Complaint pare. 4, 5).

Appellees relied on three apparently convoluted arguments to substantiate the claim that appellant failed to state a claim.

First, appellees reasoned that in cases of intentional infliction of emotional distress:

"...liability has been found only where the conduct has 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." (Restatement (2d) of Torts, Section 46 (1965).)

Assuming, as it would appear Judge Hannon did not, the truth of appellant's allegations, initially we note that:

"Allegedly libelous matter is 'defamatory' not only if it brings a party into hatred, contempt, or ridicule by asserting some moral discredit on his part, but also if it tends to make him be shunned or avoided, or deprived of the friendly association of a considerable number of respectable members of the community, though it imputes no moral terpitude to him." Brown v. Dufrey, 134 Ne 2d 469, 472-474. Counsel is, of course, correct in the observation that defendants' liability rests upon whether conduct is "...utterly intolerable in a civilized society."

All the same, it must be readily seen that appellants have alleged just such "utterly intolerable" behavior:

"(T)o engage in a civil conspiracy ... (to) abridge the civil rights of plaintiffs by means of premeditated violence for the unlawful purpose of intentionally inflicting emotional distress upon plaintiffs, and for the further purpose of attempting to justify and aggrandize defendants' political opposition to plaintiffs' high profile 24-hour year-around anti-nuclear vigil." (Complaint paragraph 4.)

"The vitality of civil and political institutions in our society depends on free discussion. As Justice Hughes wrote in DeJonge v Oregon, 299 U.S. 165, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is, therefore, one of the chief distinctions that sets us apart from totalitarian regimes.... Accordingly, a function of free speech under our system of government is to invite dispute. It may well serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech...is....protected ...unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.... There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by ... dominant political or community groups." (Terminiello v. Chicago 337 US 4, 5 (1948).)

Granting appellants the validity of their allegations, it becomes readily apparent that appellees' conduct, unchecked, would demolish the keystone of democracy, the unfettered exercise of individual belief and expression.

"The extreme and outrageous charactor of the conduct may arise from an abuse by the actor of a position, or a relation with the other which gives him actual or apparent authority over the other, or power to affect the other's interests." (Restatement (2d) of Torts Section 48, at 80.)

"A common carrier or other public utility is subject to liability ... inflicted by the utility's servants while otherwise acting within the scope of their employment." (Ibid at 81.)

"The rule stated in this section goes further and makes such a defendant liable for conduct which falls short of extreme outrage." (Ibid.)

Appellant submits that appellees' power to distort reality, multiplied as it is by the utility of appellees' presses and distribution network, unmistakably magnifies the ability of appellee to "affect the interests" of any individual who might be lawfully engaged in expressing an opinion to which appellee happens to be in opposition. For appellees to focus that power toward ad hominum attacks on individual sincerely engaged in addressing issues of broad public concern is extremely outrageous.

Second, appellees relied below on the representations that:

A) "(Appellants) made no effort to describe the actions which they claim constituted a 'raid',

B) "nor (do appellants) take issue with the accuracy of the description of those activities contained in the July 4, 1985 Washington Times article" (Motion to dismiss at 4).

It is self-evident that appellants did make an effort to describe the raid of July 4, 1986 in paragraph 4 and 5 of the Complaint.

Further appellants pointed out that the last sentence of Complaint Paragraph 6 had been unintentionally deleted by a typographical error. (See, Opposition to Defendant's Motion to Dismiss and to Quash Service of Process at 2 and 3, see also Motion for Summary Reversal, at 6 and 7). With the addition of the words which had been accidentally excluded from the Complaint, this error was corrected by appellant in the Superior Court.

"The Washington Times virtually 'cooked up' a story by sending Masty to report on and(/or) participate in an assault on the plaintiffs and their property as abovesaid, and to dis(tribute to the public an intentional, wrongful, malicious, libelous, and defamatory representation of that morning's (July 4, 1985) events.)." (Complaint paragraph 6, parentheses indicate omitted sentence.)

When the missing sentence from paragraph 6 is considered ("to distribute to the public an intentional wrongful, malicious, libelous, and defamatory representation of that morning's events"), taking appellants' allegations as true, it becomes obvious that the Masty article cannot be taken as an accurate representation of what transpired om the morning of July 4, 1985. In the light most favorable to appellants, the entire scenario, a vicious physical attack, eulogized by a vicious literary attack including the allegedly wrongful article, must be viewed as a classic example of extreme and outrageous conduct, beyond all bounds of decency, atrocious, immoral, and utterly intolerable in a civilized society.

"The actor's lack of privilege of 'just cause or excuse' is another element that must be assessed in determining whether his acts are so outrageous that harmful intent can be presumed." (Walden _ Covington, 415 A. 2d 1077; see also Clark _ Associated Retail Credit Men, 70 App D.C. 187, 188.)

Even assuming, arguendo, that appellees' public allegations with respect to the sanity of appellants or their activities were true, they should still be liable for malicious misrepresentations which resulted in appellants' emotional distress:

"A, an eccentric and mentally deficient old maid, has the delusion that a pot of gold is buried in her back yard, and is always digging for it. Knowing this B buries a pot with other contents in her yard, and when A digs it up, causes her to be escorted in triumph to the City Hall, where the pot is opened under circumstances of public humiliation to A. A suffers severe emotional disturbance and resulting illness. B is subject to liability to A for both." (Restatement (2d) of Torts, Section 46 at 75.)

"A knows that B. a Pennsylvania Dutch farmer, is extremely superstitious and believes in witchcraft. In order to force B to sell A his farm A goes through the ritual of putting a 'hex' on the farm, causing B to believe it is bewitched so that crops will not grow on it. B suffers severe emotional distress and resulting illness. A is subject to liability to B for both." (Ibid at 75, 76. See also, Wilkinson v. Downtown, 2 QED 57 (1897), Nickerson v. Hodges, 146 La. 735, 84 So. 37 (1920), Bielitski v. Obadiak, 15 Sask 153; DLR 627 (1922), and Great Atlantic and Pacific Tea Co. v. Roch, 160 Md. 189; 153 A. 22 (1931).)

Third:

"(Appellants) Complaint also purports to state a claim for civil conspiracy.... Under District of Columbia law, the essential elements of civil conspiracy are, 'an agreement to take part in an unlawful action or a lawful action in an unlawful manner, and an overt tortious act in furtherance of the agreement that causes injury."' (Motion to Dismiss at 5, citing Halberstam v. Welch, 705 F. 2d 472, 479 (DC App. 1983).) (Glasson v. Louisville, 518 F.2d 904.) Appellants believe that the Complaint states a number of tortious acts which caused injury, i.e.: