Wheeler v. Nebraska State Bar Ass'n
| Decision Date | 23 December 1993 |
| Docket Number | No. S-92-268,S-92-268 |
| Citation | 244 Neb. 786,508 N.W.2d 917 |
| Parties | Robert E. WHEELER, Appellant, v. NEBRASKA STATE BAR ASSOCIATION, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.
2. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff.
3. Demurrer: Pleadings. In ruling on a demurrer, the petition is to be construed liberally; if as so construed the petition states a cause of action, the demurrer is to be overruled.
4. Demurrer: Pleadings. If from the facts stated in the petition it appears that the plaintiff is entitled to any relief, a general demurrer will not lie.
5. Libel and Slander. The question of whether a particular publication is defamatory is, in the first instance, a question of law for the court.
6. Libel and Slander. In determining whether a statement implies a provably false factual assertion, both the language of the statement and the context in which the statement was made must be examined.
7. Libel and Slander. Ratings, being by their very nature subjective, cannot imply a provably false factual assertion.
Robert E. Wheeler, pro se.
Paula J. Metcalf, Douglas J. Peterson, and James A. Snowden, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee.
After the district court sustained the defendant-appellee Nebraska State Bar Association's demurrer to the plaintiff-appellant Robert E. Wheeler's amended petition, Wheeler elected to stand on that pleading. The district court thereafter dismissed the suit. Although Wheeler assigns additional errors, they are subsumed in his claim that the district court erroneously determined that the amended petition failed to state a cause of action. The record failing to sustain that claim, we affirm the judgment of the district court without reaching the other assignments of error.
Wheeler, a former county court judge, alleges in his amended petition that the bar association, in releasing its "NSBA Judicial Performance Evaluation--1990" of judges to the media, caused him to lose the 1990 election for retention in his judicial office and, in addition, has caused him to suffer general damage to his reputation which prevents him from gaining further employment. Wheeler further pleads that the bar association had reason to know that many of the lawyer survey responses were invalid, but nonetheless published the allegedly defamatory survey without investigating the truth or validity of the individual responses.
Averring that the bar association published the defamatory survey without regard to the truth or validity of the individual lawyer statements, Wheeler maintains that, in concert with its members, the bar association acted to defame him by including obviously invalid and vindictive responses in its survey.
More specifically, Wheeler asserts that prior to the release of the survey, the bar association published a news release in which, under the heading "Lawyers to rate judges' performance," the bar association stated its intention to publish an evaluation to give " ' "voters solid information about the judiciary to help them make informed decisions on judges standing for retention this November" ' " and to give " ' "each judge a report card of his or her strengths and weaknesses." ' " The release went on to claim that " '[t]o assure valid results, lawyers must base their evaluations on recent, first-hand experience with the judge....' " Wheeler professes that in making those statements, the bar association told the public that the survey's results were "fair, valid, and solidly based upon the facts of the judge's judicial performance."
The amended petition continues by reciting that on that same day, the bar association issued to its nonjudicial members a form on which they were to evaluate state and federal judges in 21 performance characteristics from a 1, very poor performance, to a 5, excellent performance.
The results, Wheeler asserts, were then received by the bar association and tabulated for distribution to the public without any statistical analysis to test the validity of the results obtained; nor did the bar association interpret the data collected or establish a mean or standard of deviation, despite the existence of a recognized science for evaluating the responses and drawing conclusions from the results. Wheeler also states that the bar association mailed the survey to all of its active members in disregard for the truth and validity of its results despite ethical restraints of the bar association that prohibit members from answering the survey if the member has not had sufficient experience with the judge's performance. Further, he alleges that more lawyers responded to his evaluation than there were lawyers with sufficient information to answer the survey and that, in fact, the number of lawyers who responded to his evaluation were more than the number who answered the survey of other judges with comparable judicial workloads and exposure.
Wheeler declares that the bar association made no investigation of the validity of the individual responses, nor did it establish any standards to assure the fairness and validity in its survey form and method. He concludes that the bar association released and published the judicial evaluation with actual malice and avers that the survey was used as the basis of further libel and defamation in a campaign against his retention, which use and abuse the bar association could reasonably have foreseen. Such actions, according to Wheeler, constitute libel per se.
Reciting that after the survey was published, he lost the retention election by a margin of 173 votes out of a total of 8,861 votes cast, he seeks, among other things, money damages for the loss of his position as a judge and for the loss of his reputation. In addition to claiming that he was defamed, he asserts he was deprived of his federal and state rights to procedural and substantive due process and trial by jury and that the denial of these rights may entitle him to relief under 42 U.S.C. § 1983 (1988).
Before proceeding further, we once again recall that in considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993); Gallion v. Woytassek, 244 Neb. 15, 504 N.W.2d 76 (1993); Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993); LaPan v. Myers, 241 Neb. 790, 491 N.W.2d 46 (1992).
A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff. St. Paul Fire & Marine Ins. Co., supra; Gallion, supra; Hamilton, supra; Gerken v. Hawkins Constr. Co., 243 Neb. 157, 498 N.W.2d 97 (1993).
In ruling on a demurrer, the petition is to be construed liberally; if as so construed the petition states a cause of action, the demurrer is to be overruled. St. Paul Fire & Marine Ins. Co., supra; Matheson v. Stork, 239 Neb. 547, 477 N.W.2d 156 (1991); Widga v. Sandell, 236 Neb. 798, 464 N.W.2d 155 (1991).
If from the facts stated in the petition it appears that the plaintiff is entitled to any relief, a general demurrer will not lie. St. Paul Fire & Marine Ins. Co., supra; Central Nebraska Public Power and Irrigation District v. Walston, 140 Neb. 190, 299 N.W. 609 (1941).
The question of whether a particular publication is defamatory is, in the first instance, a question of law for the court. Silence v. Journal Star Printing Co., 201 Neb 159, 266 N.W.2d 533 (1978). Obviously, the nature of the allegedly defamatory statement is critical; beginning with dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), appeal after remand 680 F.2d 527 (7th Cir.1982), cert. denied 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983), courts began to distinguish between statements of fact and opinion, holding that statements of opinion were protected by the First Amendment and thus not actionable. See Moyer v. Amador Val. Jnt. Union Sc. Dist., 225 Cal.App.3d 720, 275 Cal.Rptr. 494 (1990).
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.
Gertz, 418 U.S. at 339-40, 94 S.Ct. at 3006-07.
Sixteen years later, the U.S. Supreme Court rejected what it called "the creation of an artificial dichotomy between 'opinion' and 'fact.' " Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990), on remand sub. nom Milkovich v. News-Herald, 70 Ohio App.3d 480, 591 N.E.2d 394, cause dismissed 59 Ohio St.3d 702, 571 N.E.2d 137 (1991). The high court explained that the language in Gertz had been interpreted too broadly and was not intended to create a...
To continue reading
Request your trial
-
Hoiengs v. County of Adams
...or consider evidence which might be adduced at trial. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994); Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993); Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907 A statement of facts sufficient to ......
-
Moats v. Republican Party of Neb.
...Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). 35. See Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993). 36. Henry v. Halliburton, supra note 33. 37. Id. at 787 (quoting Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984))......
-
DeVaux v. DeVaux
...alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993); St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993); Gallion v. Woytassek......
-
Sinn v. City of Seward
...evidence which might be adduced at trial. DeVaux v. DeVaux, ante p. [245 Neb.] 611, 514 N.W.2d 640 (1994); Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993); Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907 A statement of facts sufficient to co......