Fleming v. Moore Petition for Certiorari

    88-1979
NO.

IN THE

Su p rem e (Eaurt af the JIHntieft S ta te s
October Term, 1988

JAMES N. FLEMING,
Petitioner,

v.
W. BEDFORD MOORE, III, et al,

Respondents.

ON WRIT OF CERTIORARI 
TO THE'UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT
PETITION FOR CERTIORARI

SAMUEL W. TUCKER *
HILL, TUCKER & MARSH 
P. 0. Box 27363 
Richmond, VA 23261 
(804) 648-9073 

J. BENJAMIN DICK 
421 Park Street, #2 
Charlottesville, VA 

22901
Attorneys for Petitioner 
* Cotmsel of Record

Brief Printing Specialist, 1D01 E. M ain S treet, Suite 210 
R ichm ond, Virginia 23219, (804) 644-0700



THE QUESTIONS PRESENTED FOR REVIEW
I

By this Court's denials of certiorari to 
review the State court's rulings on his 
First Amendment claims, is a black 
litigant precluded from collaterally 
attacking the libel judgment against him 
as being merely the imposition of an 
incident of slavery - in violation of the 
Thirteenth Amendment and in federally 
proscribed denial of equal protection of 
the Constitution of Virginia and her laws 
pertaining to libel?

II
When the petitioner, a black citizen of 
Virginia, has instituted a federal action 
seeking vindication of fundamental rights 
guaranteed by the Thirteenth and 
Fourteenth Amendments, may the district 
court, through invocation of the "Rooker- 
Feldman" doctrine, fail to exercise its 
mandated subject matter jurisdiction?

i



Ill
-Do the statutes, derived from the Civil 
■Rights Act of 1866, confer jurisdiction 
jupon federal district courts to secure 
to a black Virginian, against a punitive 
|state court judgment, the full and equal 
benefit of the constitutional privilege, 
jwhich white citizens of the Commonwealth 
have always enjoyed, to write or speak 
[pure expressions of opinion "however 
-ill-founded", particularly' in matters of 
"public concern, without inhibition by 
■actions for libel and slander?

ii



The Parties To The Proceeding 
In The Court Below

The petitioner is James N. Fleming. 
The respondents are: W. Bedford Moore,
III; his former attorney and his 
attorneys: E. Gerald Tremhlay, Lloyd T.
Smith, John K. Taggart, III, Melvin E. 
Gibson, Jr., and Thomas E. Albro; and 
certain active and retired Justices of the 
Supreme Court of Virginia, namely: Harry 
Lee Carrico, George Moffett Cochran, 
Richard Harding Poff, Asbury Christian 
Compton, Roscoe Bolar Stephenson, Jr., 
Charles Stevens Russell, Alexander Marks 
Harman, Jr., Thomas Christian Gordon, Jr., 
and William Carrington Thompson.

a

iii



TABLE OF CONTENTS
PAGE

THE QUESTIONS PRESENTED FOR
REVIEW--------------------      i

THE PARTIES TO THE PROCEEDINGS -----  iii
TABLE OF CONTENTS------ — -------- - j.v
TABLE OF AUTHORITIES----------- ---. vi
OPINIONS BELOW----- ■---------------- 1
JURISDICTION------ ----------- -----   i

Date of Judgment------------------ 1
Order on Rehearing------------  1,2
Order Granting Extension -— — — —  2
Statutory Provision Conferring

Certiorari Jurisdiction --------- 2
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED ------   2

STATEMENT OF THE CASE--------------- 8
BASIS FOR JURISDICTION OF

FEDERAL DISTRICT COURT-------   25
REASONS FOR ALLOWANCE OF WRIT------  26

I. Summary of Argument-----  2 6
II. The Bar of Rooker-Feldman,

As To This Case, Is 
Figmentary-------- ----- 28

A. Because The Violations 
of Section 1 of the 
Civil Rights Act of 
1866 Are Indisputable, 
Subject Matter Juris­
diction Pursuant To 
Section 3 Is Clear----  28

iv



TABLE OF CONTENTS
(CONTINUED)

PAGE
B. The Inapplicability

Of The Rooker-Feldman 
Doctrine Is Clear-----  32

C. This Action Is "Separa­
ble From And Collateral
To" The.State Litigation 39

D. Petitioner's Thirteenth
Amendment Claims Are Not 
Precluded---- — --- ?—  41

E. The Respondent State
Justices Do Not Have 
Absolute Immunity —--- — 44

III. The Several Opinions In 
Petitioner's Case Would 
Chill Unto Freezing The 
Exercise By Black 
Virginians Of Their 
Federally Promised Free 
And Uninhibited Right To 
Protest Racism ---------- --45

| APPENDIX------- --------------------

I

I

I
I

v

I



TABLE OF AUTHORITIES
PAGE

Baker v. Carr, 369 U.S. 186,
7 L.Ed.2d 663, 82 S.Ct. 691
(1962) ------------------    28,31

Cary v. Piphus, 435 U.S. 247,
55 L.Ed.2d 252, 98 S.Ct.
1042 (1968) — -------------------  26

Chapman v. Houston Welfare 
Rights Org., 441 U.S. 606,
60 L.Ed.2d 508, 99 S.Ct.
1905 (1979) -------- ------------  28,35

Chaves v. Johnson, 230 Va.
112, 335 S.E.2d 97 (1985) ---  9,10,22,

24,39,46,
48,49

City of Norfolk v. Stehpenson,
185 Va. 305, 38 S.E.2d 570’,
171 A.L.R. 1344 -------------- 22,42

District of Columbia Court of 
Appeals v. Feldman, 460 U.S.
462, 75 L.Ed.2d 206, 103
S.Ct. 1303 (1983) ------------ 26,36,37
See Rooker-Feldman doctrine
Fleming v. Moore, 221 Va. 884,
275 S.E.2d 632 (1981)
(Fleming I) ------------------ 15,17,29

Fleming v. Moore, sub nom.
The Gazette v. Harris, 229 
Va. 1, 43, 325 S.E.2d 713 
(Fleming II) (1985) ---- ------ 20

Fleming v. Moore, 780 F.2d 
438 (4th Cir. 1985), cert.
denied, No. 85-1532; ____
U.S. ____ (1986) ------------- 44

vi



TABLE OF AUTHORITIES
(CONTINUED)

PAGE
Forrester v. White, 484 U.S.

. 98 L.Ed.2d 555, 108 
S.Ct. 538 (1988) ------------  45
Great Coastal Express v.
Ellington, 230 Va. 142, 334
S.E.2d 846 (1985) ----- ------- 16

faring v. Prosise, 462 U.S.
306, 76 L.Ed.2d 595, 103 

1 S.Ct. 2368 (1983) -----------  43
Henry v. First Nat'l. Bank of 
Clarksdale,. 595 F.2d 291 
(5th Cir. 1979), cert, denied,
444 U.S. 1074 (1980) --------  38

Jones v. Alfred H. Mayer Co.,
392 U.S.409, 20 L.Ed.2d
1189, 88 S.Ct. 2186 (1986) --  32,33

Minneapolis v. St. Paul, etc.,
Railway Co. v. Moquin, 283
U.S. 520, 75 L.Ed. 1249, 51
S.Ct. 501 (1931) -------------  21

[Mitchum v. Foster, 407 U.S.
225, 32 L.Ed.2d 705, 92 S.Ct,
2151 (1972) — ---------------  28

Pennzoil Co. v. Texaco, ___
U.S. ___, 95 L.Ed.2d 1, 107
S.Ct. 1519 (1987) — ----------  36

Pulliam v. Allen, 466 U.S. 522,
80 L.Ed.2d 565, 104 S.Ct. 1970
(1984) ---------------------—  42

Rooker v. Fidelity Trust Co.,
263 U.S. 413, 68 L.Ed.ed 362,
44 S.Ct. 149 (1923) ---------  26,36,37
See Rooker-Feldman doctrine

vii



TABLE OF AUTHORITIES
(CONTINUED)

PAGE
Rooker Feldman doctrine 1,26,27

28,32,36
38

r
t

Vendo Co. v. Lektro-Vend Corp.,
443 U.S. 623, 53 L.Ed.2d
1009, 97 S.Ct. 2881 (1977) ----  35

CONSTITUTIONAL PROVISIONS
Constitution of the United States
Amendment XIII--------- ------ 2,9,10,

32,35,38
Amendment X I V -- ---------------  2

Constitution of Virginia
Article 1, Section 12 '--------  7,14

Statutes
Civil Rights Act of 1866

(14 Stat 27) ------------------ 2,9,10,
11,25,26,
27,32,33,
34

18 U.S.C. 241 — — -------------- 43
18 U.S.C. 242 --------— -------  43
28 U.S.C. 1254(1) ---------- 2
28 U.S.C. 1331---— — -------- 4,8,25
28 U.S.C. 1343 ------   4,25
28 U.S.C. 2201 ------      25
42 U.S.C. 1981 — ------- 5,10,25,27,33
42 U.S.C. 1983 --------------  5,10,25
42 U.S.C. 1985 --------------  5,25
42 U.S.C. 1986 — -------------  6,25

viii



Act of the General Assembly 
of Virginia of 1847-48 § 6 as 
carried into the Code of 
Virginia I860, Chapter CC 
Offences By Negroes, Section

TABLE OF AUTHORITIES
STATUTES CONTINUED

PAGE

11 (First)? and Section 12 --  9,14
App. 9 8

Federal Rules of Appellate 
Procedure, Rule 3 8 -- --------  31

ix



PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

The petitioner, James N. Fleming, 
respectfully prays that a writ of 
certiorari issue to review the judgment 
and opinion of the United States Court of 
Appeals for the Fourth Circuit entered in 
this proceeding on January 3, 1989.

OPINIONS BELOW
The "unpublished", per curiam, 

opinion of the United States Court of 
Appeals for the Fourth Circuit is set out 
in the appendix at pages 1 through 18. 
The unpublished memorandum of the District 
Judge is set out in the appendix at pages 
19 through 25.

GROUNDS FOR JURISDICTION 
The judgment sought to be reviewed 

is dated and was entered January 3, 1989
by the United States Court of Appeals for 
the Fourth Circuit. (App. 26-27)

Rehearing was denied by order filed



January 31, 1989. (App. 28) By order of 
the Chief Justice dated the 10th day of 
April, 1989, the time for filing this 
petition was extended to May 31, 1989.

Title 28 United States Code, Section 
1254(1) confers jurisdiction to review the 
judgment by writ of certiorari.

THE CONSTITUTIONAL PROVISIONS AND 
______ STATUTES INVOLVED
Constitution Of The United States: 

Amendment XIII 
Section 1.

Neither slavery nor involuntary 
servitude, except as a punishment for 
crime whereof the party shall have been 
duly convicted, shall exist within the 
United States, or any place subject to 
their jurisdiction.

Section 2.
Congress shall have power to enforce 

this article by appropriate legislation.
Amendment XIV 
Section 1.

*** No state shall make or enforce any 
law which shall abridge the privileges or 
immunities of citizens of the United 
States; nor shall any State deprive any 
person of life, liberty, or property,

2



without due process of law? nor deny to 
any person within its jurisdiction the 
equal protection of the laws.

*  *  *

civil Rights Act of 1866 (14 Stat 27)
An Act to Protect all Persons in the 
United States in their Civil Rights 

and furnish the Means of their Vindication 
[April 9, 1866]

Be it enacted by the Senate and 
House of Representatives of the United 
States of America in Congress assembled, 
That all persons born in the United States 
and not subject to any foreign power, ex­
cluding Indians not taxed, are hereby de­
clared to be■ citizens of the United 
States; and such citizens, of every race 
and color, without regard to any previous 
condition of slavery or involuntary ser­
vitude, except as a punishment for crime 
whereof the party shall have been duly 
convicted, shall have the same right, in 
every State and Territory in the United 
States, to make and enforce contracts, to 
sue, be parties, and give evidence, to in­
herit, purchase, lease, sell, hold, and 
convey real and personal property, and to 
full and equal benefit of all laws and 
proceedings for the security of oerson and 
property, as is enjoyed by white*citizens, 
and shall be subject to like punishment, 
pains, and penalties, and to none other, 
any law, statute, ordinance, regulation, 
or c u s t o m ,  to the c o n t r a r y  
notwithstanding.

*  *  *

SEC. 3. And be it further enacted, 
That the district courts of the United 
States, within their respective districts,

i

3



shall have, exclusively of the courts of 
the several States, cognizance of all 
crimes and offenses committed against the 
provisions of this act, and also, 
concurrently with the circuit courts of 
the United States, of all causes, civil 
and^ criminal, affecting persons who are 
denied or cannot enforce in the courts or 
judicial tribunals of the State or 
locality where they may be any of the 
rights secured to them by the first 
section of this act;

* * *
Title 28 U.S.C. 1331. Federal Question

The district courts shall have 
original jurisdiction of all civil actions 
arising under the Constitution, laws, or 
treaties of the United States.

Title 28 U.S.C. 1343 
Civil Rights and Elective Franchise

(a) The district courts shall have 
original jurisdiction of any civil action 
authorized by law to be commenced by any 
person;

(1) To recover damages for injury 
to his person or property, or because of 
the deprivation of any right or privilege 
of a citizen of the United States, by any 
act done in furtherance of any conspiracy 
mentioned in section 1985 of Title 42;

(2) To recover damages from any 
person who fails to prevent or to aid in 
preventing any wrongs mentioned in section 
1985 of Title 42 which he had knowledge 
were about to occur and power to prevent;

(3) To redress the deprivation, 
under color of any State law, statute, 
ordinance, regulation, custom or usage, of

4

;



any right, privilege or immunity secured 
by the Constitution of the United states 
or by any Act of Congress providing for 
equal rights of citizens or of all persons 
within the jurisdiction of the United 
States;

(4) To recover damages or to secure 
equitable or other relief under any Act of 
Congress providing for the protection of 
civil rights, including the right to vote.

it it it

Title 42 U.S.C. 1981.
Equal Rights Under the Law

All persons within the jurisdiction 
of the United States shall have the same 
right in every State and Territory to make 
and enforce contracts, to sue,- be parties, 
give evidence, and to the full and equal 
benefit .of all laws and proceedings for 
the security of persons and property as is 
enjoyed by white citizens, and shall be 
subject to like punishment, pains, 
penalties, taxes, licenses, and exactions 
of every kind, and to no other.

Title 42 U.S.C. 1983.
Civil Action for Deprivation of Rights

Every person who, under color of any 
statute, ordinance, regulation, custom, or 
usage, of any State or Territory or the 
District of Columbia, subjects, or causes 
to be subjected, any citizen of the United 
States or other person within the 
jurisdiction thereof to the deprivation of 
any rights, privileges, or immunities 
secured by the Constitution and laws, 
shall be liable to the party Injured in an 
action at law,suit in equity, or other 
proper proceeding for redress.

5



Title 42 U.S.C. 1985. 
Conspiracy to Interfere With Civil Rights

*  *  *

Depriving persons of rights or privileges
(3) If two or more persons in any 

State or Territory conspire or go in 
disguise on the highway or on the premises 
of another, for the purpose of depriving, 
either directly or indirectly, any person 
or class of persons of the equal 
protection of the laws, or of equal 
privileges and immunities under the laws; 
* * * in any case of conspiracy set forth 
in this section, if one or more persons 
engaged therein do, or cause to be done, 
any act in furtherance of the object of 
such conspiracy, whereby another is 
injured in his person or property, or 
deprived of having and exercising any
right or privilege of a citizen of the 
United States, the party so injured or 
deprived may have an action for the
recovery of damages occasioned by such
injury or deprivation, against any one or 
more of the conspirators.

Title 42 U.S.C. 1986.
Action For Neglect to Prevent.

Every person who, having knowledge that 
any of the wrongs conspired to be done, 
and mentioned in section 1985 of this 
title, are about to be committed, and 
having power to prevent or aid in 
preventing the commission of the same, 
neglects or refuses so to do, if such
wrongful act be committed, shall be liable 
to the party injured, or his legal 
representatives, for all damages caused by 
such wrongful act, which such person by 
reasonable diligence could have prevented;

6



and ̂ such damages may be recovered in an 
action on the case; and any number of 
persons guilty of such wrongful neglect or 
refusal may be joined as defendants in the action; * * *

Constitution Of Virginia 
Article I, Section 12

Freedom of speech and of the press; 
right peaceably to assemble, and to 
petition. — That the freedoms of speech 
and of the press are among the great 
bulwarks of liberty, and can never be 
restrained except by despotic governments; 
that any citizen may freely speak, write, 
and publish his sentiments on all 
subjects, being responsible for the abuse 
of that right; that the General Assembly 
shall not pass any law 'abridging the 
freedom of speech or of the press, nor the 
right of the people peaceably to assemble, 
and to petition the government for the 
redress of grievances.

7



STATEMENT OF THE CASE
The petitioner, James N. Fleming, is 

a black person, a native citizen of 
Virginia, and a veteran of the Korean 
conflict. The respondents are white 
Virginians. Invoking the "original 
jurisdiction" (23 U.S.C. 1343) of the 
federal district court, the petitioner 
filed this action for redress of 
unconstitutional abuse of state judicial 
power for the purpose and with the effect 
of depriving him, solely because of his 
race and color, of his right pursuant to 
the Thirteenth Amendment to be free of all 
badges and incidents of slavery and of his 
right pursuant to the Fourteenth Amendment 
not to be denied the equal protection of 
the Constitution and laws of the 
Commonwealth of Virginia.

Since the earliest days of the 
Commonwealth, white Virginians have 
enjoyed the constitutional privilege of

8



writing or speaking "any pure expression
of opinion, not amounting to 'fighting
words', * * * however ill-founded, without
inhibition by actions for libel and
slander". Chaves v. Johnson. 230 Va. 112,
119, 335 S.E.2d 97, 101-2 (1985). In this
case and notwithstanding the Thirteenth
Amendment and the 18 66 Civil Rights Act
for the enforcement thereof, the Virginia
judiciary has, •in effect, resurrected the
General Assembly's 1847-48 enactment that

[a] negro shall be punished with 
stripes: First, if he use provoking 
language or menacing gestures to a 
white person:

(App. 98) ;
making, substitution of lata 20th Century 
financial ruin for early 19th Century 
corporal punishment to the Negro who, even 
in a matter of public concern, dares to 
make a pure expression of opinion by which 
a white person is "provoked".

Pursuant to Section 3 of the Civil 
Rights Act of 1866, invoking what in 42

9

rnm w rniM <m m iM M )Bm SKtH KSm n



is termedU.S.C. 1983 is termed "original 
jurisdiction", and seeking injunctive 
relief and recovery of damages, petitioner 
commenced this action as a collateral 
attack against a state court libel 
judgment which is itself a violation of 
the Constitution; being a denial of those 
fundamental citizenship rights which the 
Thirteenth Amendment and its implementing 
statutes secured primarily to black 
persons. The complaint charges, and it is 
indisputable, that "the only basis for 
distinction", between the holding in 
Shaves v. Johnson, supra, and the earlier 
state court defamation action against 
which, for ten years, petitioner had been 
and was unsuccessfully defending, "is that 
the Fleming cases suggest and permit 
analogy" with the foregoing quotation from 
Virginia's early 19th Century proscription 
of Offenses By Negroes. (App. 65; 
Complaint 1 25). Nevertheless, and

10

I

.... - -



despite the obviousness of the imposition 
of an incident of slavery upon the 
petitioner, the lower federal courts have 
disclaimed the 1866 grant of "cognizance 
of all . . . causes, civil and criminal, 
affecting persons who are denied or cannot 
enforce in the courts . . .  of the state .
. . any of the rights secured to them by 
the first section of [the act of 1866]", 
specifically, "the right . . .  to full and 
equal benefit of all laws and proceedings 
for the security of person and property, 
as is enjoyed by white citizens and [to] 
be subject to like punishment, pains and 
penalties, and to none other." (Civil 
Rights Act of 1866, Sections 3 and 1 
(supra, p. 3); 42 U.S.C. 1981, 1983 
(supra, p. 5).

The alleged defamation stemmed from 
the effort of the petitioner, a real 
estate developer, to obtain re-zoning to 
permit construction of low cost housing in

11



Albemarle County, near Charlottesville, 
Virginia, on property adjoining the 
residential estate of the respondent 
Moore. Professing altruistic motivation 
(i.e., concern for the reservoir), Moore 
had actively opposed such re-zoning for 
fourteen months. in January of 1976, 
after Moore had manifested interest in a 
suggested tree buffer strip 100 feet wide 
(which would, confiscate eight acres of 
petitioner's land) to mask the proposed 
development from view at Moore's home, 
petitioner wrote the article, captioned 
"Racism" (App. 82), which Moore, in his 
action against Fleming, described as a 
"false, scandalous, malicious, insulting 
and defamatory libel", asserting that 
words used therein "from their usual 
construction and common acceptance, 
insults and tend to violence and breach of 
the peace." The article appeared in a 
newspaper published in the City of

12



newspaperCharlottesville and in a
published in the surrounding County of
Albemarle. in the third paragraph,
Fleming expressed his opinion concerning
the motivation for Moore's opposition:

"[A] man who wants to deprive 
working people of the same 
opportunities that Mr. Jefferson 
sought for them, *** Bedford Moore,
. . . does not want any black people 
within his sight".
Moore filed actions for libel in the 

Circuit Court of the City of Charlottes­
ville and in the Circuit Court of the 
County of Albemarle (App. 84) , demanding 
in each case $500,000 as compensatory 
damages and $500,00 as punitive damages. 
The Albemarle County litigation ended with 
the entry of final judgment for the 
plaintiff for $66,667.67 as compensatory 
damages and $166,666.67 as punitive 
damages.

As early as 1776, the citizens of 
Virginia had enshrined in their Bill of 
Rights "as the basis and foundation of

13



government * * * [t]hat the freedom of the 
press is one of the bulwarks of liberty, 
and can never be restrained but by 
despotic governments." However, flowing 
from the institution of slavery and by 
custom prevailing when the Virginia Bill 
of Rights was enunciated, and by statute 
enacted in 1847-48, it was established in 
Virginia that this freedom did not apply 
to black people and that

"[a] negro shall be punished with 
stripes: First, If he use provoking 
language or menacing gestures to a 
white person: * * (App. 98)
The instant complaint shows that,

notwithstanding the Thirteenth Amendment,
the Supreme Court of Virginia yet
tolerates, and in the case against . this
petitioner actively encourages, a
continuing viability of the above quoted
section of the pre-Civil War statutes
proscribing "Offenses By Negroes".
Allegations in petitioner's federal
complaint clearly and overwhelmingly

\ <

14



support this conclusion.
The 3 , January 1977 motions for 

judgment over signature of E. Gerald 
Tremblay, then of the Charlottesville law 
firm of Tremblay & Smith, alleged that W. 
Bedford Moore, therein identified as "a 
member of the white race", was "greatly 
insulted, mortified, held up to ridicule, 
humiliated [and] aggrieved" by the publi­
cation which . ( in the heat of the zoning 
controversy) had been authored by James N. 
Fleming who, in those pleadings, is 
identified as "a member of the black 
race". (App. 84, 85)

Judge Berry instructed the jury that 
Fleming's publication was libel per se 
(for which damages could be awarded not­
withstanding the total absence of pleading 
or proof that the plaintiff had suffered 
any monetary loss). That jury awarded 
$10,000 as compensatory damages and 
$100,000 as punitive damages. On appeal,

15



the Supreme Court of Virginia concluded
that, "while the allegation might have 
adversely affected Moore's work [as a 
university professor], the statements did 
not necessarily affect him in his partic­
ular profession and consequently were not 
defamatory per se." Fleming v. Moore. 221 
Va. 884, 891, 275 S.E. 2d 632 (1981)
[Fleming I). (Emphasis by the court.)

The Supreme Court of Virginia, 
however, (1) rejected out of hand
Fleming's claim of constitutional 
privilege, (2) admittedly "modified" the 
ancient and universal requirement of proof 
of special damages in actions of libel per 
guod1. and (3) remanded the action for re­

1However, on 6 September 1985, in its 
opinion in Great Coastal Express v.
Ellington. 230 Va. 142, 334 S.E. 2d 846 
(1985) , the Virginia court, without so 
saying, repudiated its tortured reasoning 
in the penultimate paragraph of Fleming I. 
by stating, obiter dictum, the reason why 
in cases of alleged defamation per quod 
the plaintiff must plead and prove 
pecuniary loss, viz: "It is difficult, if 
not impossible, to prove with mathematical

16



trial, thereby making possible the 
punishment of a black person for authoring 
a publication which was merely "provoking"
to a white person. (Fleming I. supra).

The court's awareness that Moore is 
white and that Fleming is black and the 
influence of that circumstance upon its 
decision are disclosed by its distortion 
of the evidence to reach its predetermined 
conclusion.

Fleming, a black real estate broker 
and developer * * * proposed to 
construct a planned unit development 
of high density residential units 
for a predominantly black, lower- 
middle-income group of occupants. 
[221 Va. at 887]
ii* * * Moore's position was that the 
project * * * would also detract 
from the value of his own property. 
* * * Moore felt that the [tree] 
buffer would be a good idea since it

precision the quantum of damages for 
injury to reputation, humiliation, and 
embarrassment which may flow from a 
defamation. For this reason, the common 
law, as early as 1670, modified the usual 
standard of proof of damages in those 
cases where the words uttered were 
actionable per se." (230 Va. at 148? 334
S.E. 2d at 850) .

I

I

17



would screen his property from the 
"Evergreen" development. [221 Va. at 887] * * *
"Since Moore's involvement at the 
P'-itlic hearings was in his capacity 
as an adjoining private landowner 
whose property might be affected by 
the proposed development, we 
conclude that he was not a public 
figure. Therefore, he . was not 
required to show, as a prerequisite 
to recovery of compensatory damages, 
that Fleming acted with malice that 
met the New York Times standard. 
[221 Va. at 892] * * *

:

* * * Since Fleming is not a media 
defendant and Moore is not a public 
figure, Gertz [v. Robert Welch. 
Incu., 418 U.S. 323 (1974)] does not 
control the present case [221 Va. at 
89].

Moore's testimony disclosed no 
concern of his that the project would 
detract from the value of his property. 
Except that he welcomed the idea of a tree 
buffer, ha offered no testimony as to how 
his property might be affected by the 
proposed development. His testimony was 
that his concern was the protection of the 
reservoir. In a pre-trial deposition 
reproduced in Record No. 78-1061 of the

18

Isf1*



Supreme Court of Virginia (Joint Appendix 
at pages 378) , he testified that he would 
have no objection to the color of the 
collar, or to the color of the skin, of 
the residents of the proposed development 
"if they're good neighbors".

In his testimony in pre-trial 
deposition and at trial, Moore never 
wavered from the stance he had 
consistently- taken before the county 
authorities that his opposition to the 
proposed development was for the good of 
his neighbors and the county as a whole.

On 21 October 1982, the second jury 
(from which Moore had peremptorily 
eliminated the two black veniremen who 
were otherwise qualified) found a 
"compensatory" award of $100,000 for 
Moore's admitted measurable loss of 
nothing. Further, substituting financial 
ruin for physical chastisement, they 
awarded "punitive" damages of $250,000

19



with pre-judgment interest § 12% from 16 
January 1976. On the day the verdict was 
returned the award totaled $552,993.14; 
thereafter to increase at the rate of 
$115.06 a day. On 3 June 1983 when 
judgment was entered, it would have been 
worth $578,870.86.

In its order allowing a second 
appeal in the action for alleged libel, 
the Supreme Court of Virginia refused to 
entertain the question of constitutional 
privilege. (App. 92-97) The opinion in 
Fleming II (sub nom. The Gazette v. 
Harris), 229 Va. 1, 43, 325 S.E. 2d 713, 
742 (1985), held that the award of 
$100,000 as compensatory damages was "so 
out of proportion to the damages sustained 
to suggest that it is not the product of a 
fair and impartial decision" (229 Va. at 
48) and that the pjinitive award of 
$250,000 "on its face indicates prejudice

i

20



or partiality''2 (229 Va. at 51). 
Nevertheless, the court sustained the 
finding of liability. But Virginia's pre- 
Civil War legislation concerning such 
Offenses By Negroes had limited punishment 
to 3 9 stripes at any one time. (App. 98) 
Hence, the court required remittitur of a 
"substantial" .. portion of both awards or, 
at the option of the plaintiff, a new 
trial limited to the measure of damages. 
Neither the lack of fairness and 
impartiality nor the indication of 
prejudice and partiality was seen as 
vitiating the decision to punish Fleming 
for publishing the article by which a 
white person was provoked. The appellate 
court was concerned only by the severity 
of the punishment.

2This Court's admonition in 
Minneapolis, St. Paul, etc. Railway Co. v. 
Moquin, 283 U.S. 520, 521 (1931), is that 
appeals to passion and prejudice "may be 
quite as effective to beget a wholly wrong 
verdict as to produce an excessive one".

21



lingering viability of the 1347-48 statute
came on 7 March 1986 when, by order
denying re-hearing of Fleming's petition
for appeal from the final judgment for
$233,333.34 entered after the remittitur
proceedings, the Supreme Court of Virginia
refused to conform3 the judgment against
Fleming to its 6 September 1985 holding
(involving two white litigants) in Chaves
v. Johnson, supra. In Chaves. the Supreme
Court of Virginia had held:

Pure expressions of opinion, not 
amounting to "fighting words," can­
not form the basis of an action for 
defamation. The First Amendment to 
the Federal Constitution and article 
1 section 12 of the Constitution of 
Virginia protect the right of the 
people to teach, preach, write, or 
speak any such opinion, however ill-

The crowning manifestation of the

3In City of Norfolk v. Stephenson. 
185 Va. 305, 315, 38 S.E. 2d, 570, 574-75, 
171 ALR 1344, 1350-51 (1946), the court
had held that the decision of the 
appellate court would conform to an 
intervening change in the rules which 
govern citing United States v. The 
Schooner Peggy. 1 Cranch (5 U.S.) 103, 110 
(1801) and other authorities.

22



founded, without inhibition by 
actions for libel and slander. 
"[E]rror of opinion may be tolerated 
where reason is left free to combat 
it." Thomas Jefferson's First 
Inaugural Address (1801). "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." 
■Segtz. v. Robert Welch .Inc.. 418 U.S. 
323, 339-40 (1974) .

* * *

It is for the court not the jury, to 
determine as a matter of law whether 
an allegedly libelous statement is 
one of fact or one of opinion. * * *

(230 Va. at 119)

Fleming's complaint, in paragraph 25 
thereof, alleges: "That which was written
and published by Fleming of and concerning 
Moore is more readily seen as pure 
expression of opinion4 than that which was 
ŵ-’i-'̂t-en and published by Johnson of and 
concerning Chaves.5 The only basis for

4One can only opine what another t 
person "wants" or "does not want".

5 * * * In a letter to the members of j 
ths Council of the City of Fredericksburg, 
Johnson, an architect, had charged (1) 
that his competitor, Chaves, "has had no

»
23 j



distinction between Chaves v. Johnson and
the Fleming cases is that the Fleming 
cases suggest and permit analogy with the 
punishment of a Negro for his use of 
language which provoked a white person." 
(App. 65) On motion to dismiss, this 
allegation is taken as true.

Petitioner's federal complaint 
requested interlocutory injunctive relief 
against enforcement of payment of the 
defamation judgment and prays judgment for 
$750,000 in compensatory damages and 
$250,000 in punitive damages against Moore 
(the defamation plaintiff), against 
Moore's attorneys, and against the

prior experience in this type of project" 
and (2) that council had "agree[d] to pay 
[to Chaves] an Architectural fee that is 
over 50% more than what could be consider­
ed a reasonable fee." In Chaves' ensuant 
action for damages, the trial court set 
aside the verdict for the plaintiff on the 
defamation count, "on the grounds that 
Johnson's statements were mere statements 
of opinion." (230 Va. at 118; 335 S.E. 2d 
at 101) (Complaint 1 24) . The Supreme
Court of Virginia agreed.

24



j

Court of Virginia, jointly and severally, 
for their having denied to Fleming (or
having caused Fleming to be denied) the
"full and equal benefit of all laws and 
proceedings for the security of person and 
property as is enjoyed by white citizens" 
and for their having subjected him to 
punishment and penalties to which white
citizens are not subject. (Civil Rights 
Act of 1866 (14' Stat 27); 42 U.S.C. 1981)

Basis For Jurisdiction 
Of Federal District Court

Jurisdiction of the district 
court was invoked under 28 U.S.C. 2201
and, further, under 28 U.S.C. 13 31 and 
1343(a); this being an action arising 
under 42 U.S.C. 1981, 1983, 1985(3), and j 
1986.

participating Justices of the Supreme

On motions of the defendants, the
district court summarily dismissed the
action "for lack of subject matter juris

25



diction”, citing as authority District of 
Columbia Court of Appeals v. Feldman. 460 
U.S. 462 (1983). The Court of Appeals for 
the Fourth Circuit affirmed, citing the 
Rooker-Feldman doctrine fRooker v. 
Fidelity Trust Co. . 2 63 U.S. 413 (192 3)
and District of Columbia Court of Appeals 
v. Feldman, supra.) and 28 U.S.C. § 1257.

REASONS FOR ALLOWANCE OF THE WRIT
I

Summary Of The Argument
Ultimately, this litigation should

firmly establish that no person may with
impunity impose a badge or incident of
slavery, upon a black person in violation
of the Thirteenth Amendment and the Civil
Rights Act of 18 66 (14 Stat 27) .

"By making the deprivation of 
["absolute"] right actionable for 
nominal damages without proof of 
actual injury, the law recognizes 
the importance to organized society 
that those rights be scrupulously 
observed; " Cary v. Piphus, 435 U.S. 
247, 266 (1978).

26



Presently, however, there are only two 
questions before this Court:

(1) Whether the Congress has ever 
repealed its 18 66 grant unto the lower 
federal courts of "cognizance of . . . all 
causes, civil and criminal, affecting 
persons who are denied or cannot enforce 
in the courts or judicial tribunals of 
the State or locality where they may be"
(14 Stat 27, Sec 3) their right "to full 
and equal benefit of all laws and 
proceedings . . . as is enjoyed by white
citizens and to be subject to like punish­
ment, pains and penalties, and to none 
other" (Id. Sec 1; 42 U.S.C. 1981); and

(2) Whether, by the so-called 
Rooker-Feldman doctrine or by any other 
means, this Court has ever pretended to 
repeal such grant of jurisdiction.

r

"The history of the revision makes 
abundantly clear that Congress did j 
not intend to alter the content of j 
federal statutory law."

27



Chapman v . Houston Welfare Rights 
Organization, 441 U.S. 600, 625 (1979)
(Concurring opinion). In Hitchum v. 
Foster, 407 U.S. 225, 242 (1972) the Court 
noted that Congress "realized that state 
officers might, in fact, be antipathetic 
to the vindication of those [federally 
created] rights; and it believed that 
these failings extended to the state 
courts."

II
The Bar of Rooker-Feldman, As to This Case, 

Is Figmentary
A

Because The Violations Of Section 1 
Of The Civil Rights Act of 1866 
Are Indisputable, Subject Matter 
Jurisdiction Pursuant To Section 3 

Is Clear_______
The relevant teachings of Baker v. 

Carr, 369 u.s. 186, 199 (1962) are (l) 
that "[d]ismissal of the complaint upon 
the ground of lack of jurisdiction of the 
subject matter would . . .  be justified 
only if that claim were 'so attenuated and

28



unsubstantial as to be absolutely devoid
of merit'" and (2) that without deeming
"the asserted federal constitutional claim
unsubstantial and frivolous, [it] should
not have dismissed the complaint for want
of jurisdiction of the subject matter."

Although they were unable or
unwilling to vindicate the constitutional
liberties which the courts of Virginia had
denied to this petitioner solely because
of race and color, certain jurists in the
courts below perceived fundamental flaws
in the underlying defamation litigation.
Dissenting from the order of remand in
Fleming I. supra. Justice Harrison wrote:

"I would enter final judgment, for 
the defendant." (221 Va at 894).
At the 16 January 1987 hearing on 

this petitioner's application for inter­
locutory injunctive relief, Chief District 
Judge Turk said:

"I think the Virginia Supreme Court 
was wrong in not following the 
dissent of Albertis Harrison at the

29



time because I think he was 
absolutely right” (App. 33-34).
Three days later, in the order of 

the Court of Appeals for the Fdurth 
Circuit denying interlocutory injunctive 
relief, Circuit Judge H. E. Widener, Jr., 
wrote:

"It is claimed that this is a badge 
of slavery, which, of course, it 
is." (App. 36).
Senior District Judge Robert R. 

Merhige, Jr., judge designate, evidenced 
his recognition of the injustice of which 
the petitioner complains:

"In essence, plaintiff claims that 
the state libel suit judgment was an 
'incident of slavery' in violation 
of the Thirteenth Amendment because 
it penalizes a black person for 
speaking out' against a white person, 
as traditionally occurred by custom 
and statute. He next claims that 
his constitutional right to speak 
and publish his opinions has been 
infringed upon by this judgment, 
while the rights of white persons 
are not similarly infringed upon, in 
violation of the Equal Protection 
Clause." (App. 22-23).
The per curiam opinion of the court

of appeals does not entirely avoid recog-
30



nition of merit in the petitioner's basic
contention. After noting that this Court
had declined certiorari review of the
First Amendment challenges, the opinion
below acknowledges that

"[t]he Thirteenth Amendment and 
equal protection arguments raised by 
Fleming.present a harder question" 
(App. 13)

—  a question which that court avoided by
suggesting claim preclusion. Even so, in
declining to impose sanctions under Fed.
R. App. P. 38, the court of appeals
concluded its opinion, viz:

"We cannot say that Fleming's juris­
dictional arguments sank to the 
level of frivolousrtess." (App. 18)
According to Baker v. Carr, supra.

jurisdiction of the federal district court
is manifest by every recorded observation
of any federal judge who has considered
this case in the courts below.

31



B.
The Inapplicability Of The Rooker-Feldman 
_________ Limitation Is C l e a r ______

The Thirteenth Amendment created a
universal charter of freedom, abolishing
every badge and indicia of , inferiority
flowing from the institution of slavery
and creating an affirmative duty on every
branch of government to enforce its
mandate. The Civil Rights Act of 1866 was
passed for the enforcement of the
Thirteenth Amendment. Concerning that
Act, this Court has said:

[I]t is clear that the Act was 
designed to do just what its terms 
suggest: to prohibit all racial
discrimination, whether or not under 
color of law, with respect to the 
rights enumerated therein.

Jones v. Alfred H. Mayer Co. , 392 U.S.
409, 436 (1986). The narrow holdings in
Jones were [1] "that Section 1982 bars all
racial discrimination, private as well as
public, in the sale or rental of property,
and [2] that the statute, thus construed,

32

v

i.



is a valid exercise of the power of 
Congress to enforce the Thirteenth 
Amendment." (392 U.S. at 413; emphasis by 
the Court).

However, as this Court in Jones v.
Mayer Co. noted, the Civil Rights Act of
1866 was not intended to be read narrowly.

Of course, Senator Trumbill's bill 
would, as he pointed out, "destroy 
all [the] discriminations" embodied 
in the Black Codes, but it would do 
more? It would affirmatively secure 
for all men, whatever their race or 
color what the Senator called the 
"great fundamental right" 
[including] the right to enforce 
rights in the courts . . . .  As to 
those basic civil rights, the 
Senator said, the bill would "break 
down all discrimination between 
black men and white men."
That the bill would indeed have so 
sweeping an effect was seen as its 
great virtue by its friends and as 
its great dangers by its enemies but 
was disputed by none.

392 U.S. at 430-31.
Accordingly, we submit that Section

1981 (also derived from Section 1 of the
1866 Act) bars all action, private as well
as public, which imposes upon a black

33



person any other badge or incident of 
slavery, e.g., "punishment, pains, 
penalties . . . and exactions" to which
white citizens are not subject; and we 
further submit that this specific 
statutory bar transcends any and all, 
provisions, doctrines, or theories of law 
by which its evasion might be sought.

Jurisdiction for petitioner's case 
was conferred on district courts by 
Section 3 of the Civil Rights Act of 1866. 
Not until 1875 did Congress extend to the 
circuit courts original jurisdiction, 
concurrent with the courts of the several 
States, "of all suits of a civil nature at 
common law or in equity, where the matter 
in dispute exceeds, exclusive of costs, 
the sum or value of five hundred dollars, 
and arising under the Constitution or laws 
of the United States, or treaties made 
. . The district courts had no general
"arising under" jurisdiction until the

34



adoption of the 1911 Judicial Code when 
the district courts became the sole fed­
eral courts of first instance. (Justice 
White, concurring in Chapman v. Houston 
Welfare Rights Org.. supra.)

It was to enforce the Thirteenth 
Amendment (rather than to extend federal 
protection to commercial corporations) 
that Congress first crafted the unique 
"original jurisdiction" to entertain 
collateral attack against state court 
judgments. After a Circuit Justice denied 
a stay of execution pending petition for 
certiorari to the Illinois court, the 
judgment debtor filed in federal court the 
collateral attack which reached this Court 
as Vendo Co. vs. Lektro-Vend Corp., 433 
U.S. 623 (1977). Four Justices agreed 
with the lower courts that federal 
jurisdiction existed. Five Justices 
considered that jurisdiction would have 
existed under somewhat different facts.

35



The sepa r a t e  opinions and
concurrences of six of the Justices who
participated in Pennzoil Co. v. Texaco,
_ U.S.___ , 95 L.Ed. 2d 1, 107 S. Ct. 1519
(1987), made crystal clear the
inapplicability of the Rooker-Feldman
doctrine to this case if, indeed, such was
not abundantly clear from the Court's
rejection of Pennzoil's argument that
Rooker-Feldman was an absolute bar.

Justice Scalia (with whom Justice
O'Connor joined) wrote separately

"only to indicate that I do not 
believe that the so-called Rooker- 
Feldman doctrine deprives the court 
of jurisdiction to decide Texaco's 
challenge to the constitutionality 
of the Texas stay and lien 
provisions."
Justice Brennan (with whom Justice

Marshall joined) wrote:
"Further, I reject Pennzoil's 
contention that District of Columbia 
Court of Appeals v . Feldman, 460
U.S. 462 (1983), and Rooker v.
Fidelity Trust Co.. 263 U.S. 413
(1923) , forbid collateral review in 
this instance. In Rooker and 
Feldman. the Court held that lower

36



federal courts lack jurisdiction to 
engage in appellate review of state 
court determinations. [Emphasis
added.] In this case, however, 
Texaco filed the 1983 action only 
to p r o t e c t  its f e d e r a l  
constitutional right to a meaningful 
opportunity for appellate review, 
not to challenge the merits of the 
Texas suit. Texaco's federal action 
seeking a stay of judgment pending 
appeal is therefore an action 
"'separable from and collateral to'" 
the merits of the state court 
judgment." [Citations omitted.]

Justice Blackmun wrote:
"In addition, for the reasons given 
by Justice Brennan . . ., I believe
that federal collateral review is 
not barred by the principles 
announced in District of Columbia 
Court of Appeals v. Feldman. 460 
U.S. 462 (1983), and Rooker v.
Fidelity Trust Co.. 263 U.S. 413
(1923) . "

In footnote 3 of his opinion, Justice
Stevens wrote:

"For the reasons stated by Justice 
Brennan . « . and Justice Scalia ... 
I do not believe that the doctrine 
described in . . . Feldman . . . and 
Rooker . . . bars the federal courts 
from considering Texaco's claims."
Justice Brennan pointed out that the

underlying issues in Pennzoil arising
out of a commercial contract dispute - do

37



not involve fundamental constitutional
rights", as was the case in Henry v. First 
National Bank of Clarksdale. 595 F.2d 291, 
299-300 (5th cir. 1979), cert, denied 444 
U.S. 1074 (1980). Nevertheless, he would 
have placed Pennzoil beyond the reach of 
Rooker and Feldman, but only to the extent 
that Texaco, Inc., sought to protect its 
federal constitutional right to a 
meaningful opportunity for review in the 
state's appellate court. Here, as in 
Henry. Fleming's constitutional claims 
involve fundamental federal constitutional 
rights. Neither Rooker nor Feldman bars 
their assertion and vindication iri a 
district court of the United States.

Disclaimer of subject matter 
jurisdiction in this case is retreat from 
the Thirteenth Amendment and from the Act 
which the 39th Congress passed for that 
Amendment's enforcement. Such disclaimer, 
if permitted to stand, would restore the

38



slave code.
C.

This Action Is "Separable From And 
Collateral To" The State Litigation

The opinion below suggests (1) that 
the petitioner's Thirteenth Amendment and 
Equal Protection claims are "inextricably 
intertwined" with the state court decision 
and, (2) hence, because they "could have 
and should have been raised" in the 
petition to the Supreme Court of Virginia 
for conformation with the then recent 
explication of the Virginia Constitution 
in Chaves v. Johnson, supra. petitioner is 
now precluded from raising them in a 
federal court. We are not told, however, 
what principle or precedent in state law 
might be encountered. The phrase 
"inextricably intertwined" is not a 
talismanic charm, the mere recitation of 
which will permit the lower federal courts 
to blindly defer to States Rights.

This action is "separable from and 
39



collateral to" the state litigation.
There is and there can be no 
constitutionally permissible theory or 
process of state law which could lead to 
the constitutionally forbidden result 
which the state courts achieved in the 
Fleming cases. There is and can be no 
" int ertwin e m e n t " (inextricable or 
otherwise) of the federal constitutional 
principle with state law because there is 
and can be no state law or valid "existing 
Virginia precedents" permitting or leading 
to the abridgment of the fundamental 
rights secured by the Thirteenth Amendment 
and its statutory implementation. No 
process of reasoning can make lawful the 
imposition of badges and incidents of 
slavery which fundamental law clearly 
forbids.

The courts below disavowed 
jurisdiction to conduct appellate review 
of a State court decision. In this case,

40



appellate review of the State litigation 
is not called for. The manner in which 
petitioner was found liable and answerable 
in damages is immaterial. He may no more 
be mulcted in damages for making free 
expression of opinion (as white citizens 
have been constitutionally privileged to 
do since the earliest days of the 
Commonwealth) than he may be fined and 
imprisoned for attending a religious 
worship service on the Sabbath. Appellate 
review of a judgment purporting to effect 
either result would be superfluous. The 
abridgment of fundamental right -- the 
obvious unconstitutionality of the 
judgment itself —  makes it subject- to 
collateral attack.

D.
Petitioner's Thirteenth Amendment Claims 

Are Not Precluded
The complaint, in paragraph 4, 

clearly states that "[t]he violation of

» 41



the Thirteenth Amendment herein demon­
strated and the concomitant violation of 
the Equal Protection Clause , of the 
Fourteenth Amendment have not been 
previously charged in any proceeding in 
any court." (App. 46-47). Moreover, the 
petitioner could not have raised these 
arguments in his application to the 
Supreme Court of Virginia for a rehearing 
of his third petition for appeal and for 
conformation of the final judgment against 
him to its 15 September 1985 holding in 
Chaves v. Johnson, supra. As, in Pulliam 
V. Allen. 466 U.S. 522 (1984):

"It is no longer proper to assume 
that a state court will not act to 
prevent a federal constitutional 
deprivation or that a state judge 
will be implicated in that 
deprivation." (Emphasis added).

Until such had actually occurred,
petitioner could not charge that the
Virginia court would disregard this
Court's precedent which it had adopted and
followed in City of Norfolk v. Stephenson,

42



supra. Moreover, it would have been most
impolitic to charge tantamount violation
of 18 U.S.C. 241 or 18 U.S.C. 242 except
in a forum where proof may be heard.

Then, too, Fleming had neither "a
full and fair opportunity [nor] an
adequate incentive to litigate 'to the
hilt' the issues in question" (Haring v.
Prosise. 462 U.S. 306, 311 (1983)).

Moreover, additional exceptions to 
collateral estoppel may be warranted 
in § 1983 actions in light of the 
"understanding of § 1983" that "the 
federal courts could step in where 
the state courts were unable or 
unwilling to protect federal 
rights." (462 U.S. at 313-314)
In Haring, this Court canvassed the

relevant decisions of the Supreme Court of
Virginia to determine the extent to which
28 U.S.C. 1738 requires preclusive effect
to be given to final judgments of Virginia
courts. This Court found:

[Collateral estoppel precludes the 
litigation of only those issues 
necessary to support the judgment 
entered in the first action. As the 
Virginia Supreme Court stated in

43



Petrus v. Robbins, 196 Va 322, 330,
83 SE 2d 408, 412 (1954), "[tjo
render the judgment conclusive, it 
must appear by the record of the 
prior suit that the particular 
matter sought to be concluded was 
necessarily tried or determined,- 
that is, that the verdict could not 
have been rendered without deciding 
that matter." (462 U.S. at 315)
Petitioner's earlier federal case

(Fleming v. Moore. 780 F.2d 438, 4th Cir.
1985; cert, denied April 21, 1986, __ U.S.
___ ) produced no decision on the merits;
hence, it is not preclusive of any of the
instant assertions.

E.
The Respondent State Justices 
Do Not Have Absolute Immunity
The district court hinted that

judicial immunity might illuminate a
"flaw" in the petitioner's complaint.
The court of appeals, in footnote 7 of its
per curiam opinion, intimated that the
respondent Justices of the Supreme Court
of Virginia, acting within their judicial
capacities, "enjoy absolute immunity from

44



monetary damages". We think the question 
has been put to rest, however, by the 
holding in Forrester v. White, 484 U.S.
__, 98L.Ed.2d 555, 563, 108 S.Ct. 538, 542
(1988), that absolute immunity does not 
attend appellate justices serving in the 
"ordinary mechanisms of review" and that 
if appellate justices claim exemption from 
personal liability they have the burden of 
showing that such exemption is "justified 
by overriding considerations of public 
policy."

III
The Several Opinions In Petitioner's Case 
Would Chill Unto Freezing The Exercise By 

Black Virginians Of Their Federally 
Promised Free And Uninhibited 

Right To Protest Racism
Already there is indication that the

Fleming opinions will encourage the bar
and bench to complete the resurrection of
the 1847-48 proscription of a Negro's use
of "provoking language" to [or concerning]
a white person and to disregard the

45



Nation's promise to black persons of "full 
and equal benefit" of the fundamental 
right of free Virginians to teach, preach, 
write or speak any pure expression of 
opinion "without inhibition by actions for 
libel or slander" (Chaves v. Johnson. 
supra).

On 12 May 1989, a panel of the 
United States Court of Appeals for the 
Fourth Circuit heard arguments concerning 
the right of black defendants to remove to 
federal court an action for alleged 
defamation brought by a white police 
officer against a black citizen who, in a 
matter of public concern, made pure 
expression of his opinion by which the 
police officer was offended. (Upchurch v. 
Wheeler, et al. , 4th Cir. Record No. 88- 
2661). Solely because Aaron Wheeler (a 
black man, serving as chairman of the 
legal redress committee of the Virginia 
Beach Branch of the NAACP) was quoted in

46



the press as having characterized, as a 
senseless, racially motivated murder, the 
20 June 1987 fatal shooting of an unarmed 
24 year old black man by police officer 
Eddie Upchurch (who is white), Upchurch 
brought action against Wheeler and the 
Virginia State Conference NAACP in the 
Circuit Court of the City of Virginia 
Beach, demanding "[c]ompensatory damages 
. . . for lost wages, benefits, damages to 
his reputation and standing in the commu­
nity, embarrassment, humiliation and 
mental suffering in the amount of 
$1,000,000" and "[p]unitive damages . . .
for the defamatory statements made inten­
tionally, maliciously, and with the 
express intent to cause harm and damage to 
the plaintiff, in the amount of 
$1,000,000." (App. 99-109)

By pre-trial discovery, the 
defendants developed that Wheeler's 
alleged statements followed public dis­

47



closure of accounts of eyewitnesses, the 
report of findings of the medical exam­
iner, and reports that there were no 
fingerprints of the victim on the 
officer's gun and no powder residue on the 
victim's hand; all of which contradicted 
the officer's unsupported statement (which 
the Commonwealth's Attorney accepted) that 
the weapon was unintentionally discharged 
in a struggle for its possession. (App. 
115-117)

Defendant's motion for summary 
judgment (App. 109-111), citing Chaves v. 
Johnson, supra, was denied. Citing Chaves 
v. Johnson, the defendants then petitioned 
the Supreme Court of Virginia for a Writ 
of Mandamus to compel the trial court, "in 
advance of trial, to rule as a matter of 
law whether the alleged utterances of 
Aaron Wheeler were statements of fact or 
expressions of opinion." Mandamus was 
denied.

48



Wheeler had merely expressed his 
opinion (gleaned from official statements 
and public knowledge) as to what was in 
the mind of the police officer when the 
fatal shot was fired. Removal of the 
defamation action to federal court was 
sought after the state court had overruled 
the defendants' motions for summary judg­
ment and thereby had denied Wheeler's 
right, without- inhibition bv actions for
like1_____ slander, to publicly disagree
with the self serving explanation of the 
white policeman and that policeman's 
"exoneration" by the Commonwealth's 
Attorney. (App. 112)

When viewed in contrast with Chaves 
v. Johnson, the Upchurch case, as does the 
Fleming case, demonstrates that, in 
Virginia, the law of libel is one thing if 
the defendant is white and another thing 
if the defendant is black and the 
plaintiff is white.

49



CONCLUSION
The promise of the Virginia 

Constitution to white citizens is that 
they may make any pure expression of 
opinion without inhibition by actions for 
libel and slander. The same freedom to 
black persons in Virginia is the commit­
ment of the Nation. Petitioner prays that 
a writ of certiorari to the judgment of 
the United States Court of Appeals for the 
Fourth Circuit will be granted.

JAMES N. FLEMING, Petitioner 
By Counsel

Samuel W. Tucker

J. Benjamin Dick

SAMUEL W. TUCKER* 
HILL, TUCKER & MARSH 

P. O. Box 27363 
Richmond, VA 23261 
(804) 648-9073

* Counsel of Record

J. BENJAMIN DICK 
421 Park Street 
Charlottesville, 
VA 22901 

(804) 977-6607

50



CONTENTS OF APPENDIX
Page

OPINION - Court of Appeals 4th Cir. 1
MEMORANDUM - D.C.W.D. Va. Merhige,

Judge Designate 19
JUDGMENT ORDER - Court of Appeals

4th Circuit 26
ORDER - Court of Appeals 4th Cir.

denying rehearing 28
EXCERPT from Transcript of

January 16, 1988 30
ORDER - Court of Appeals 4th Cir.

(Judge Widener) Denying
Injunctive Relief -
January 19, 1988 34

AMENDED COMPLAINT - Filed
Feb. 5, 1987 41

EXHIBIT 1 - The subject
advertisement 82

EXHIBIT 2 - Motion for Judgment
(Libel Action) 84

EXHIBIT 3 - Final Judgment Order 88
ASSIGNMENTS OF ERROR- From September

2, 1983 Petition 
for Appeal 92

ORDER - Rejectiong claim of
privilege and limiting
appeal to measure of
damages 95

EXCERPT - From Code Of Virginia 1860 98
MOTION for Judgment in Upchurch v.

Wheeler, et al 99



Page
MOTION of defendant for Summary 

Judgment in Upchurch v. 
Wheeler, et al

PETITION for Removal in Upchurch 
v. Wheeler, et al

109

112



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

NO. 87-6619

JAMES W. FLEMING,
Plaintiff-Appellant,

versus
W. BEDFORD MOORE; E. GERALD TREMBLAY;
LLOYD T. SMITH; JOHN K. TAGGART, lit; 
MELVIN E. GIBSON, JR.; THOMAS E. ALBRO; 
HARRY LEE CARRICO, Chief Justice of the 
Supreme Court of Virginia; GEORGE MOFFETT 
COCHRAN, Justice of the Supreme Court 
of Virginia; RICHARD HARDING POFF,
Justice of the Supreme Court of Virginia; 
ASBURY CHRISTIAN COMPTON, Justice of the 
Supreme Court of Virginia; ROSCOE BOLAR 
STEPHENSON, JR. , Justice of the Supreme 
Court of Virginia; CHARLES STEVENS 
RUSSELL, Justice of the Supreme Court of 
Virginia: ALEXANDER MARKS HARMAN, JR., 
Senior Justice of the Supreme Court of 
Virginia; THOMAS CHRISTIAN GORDON, JR., 
Retired Justice of the Supreme Court of 
Virginia; WILLIAM CARRINGTON THOMPSON, 
Retired Justice of the Supreme Court of 
Virginia,

Defendants-Appellees.

Appeal from the United States District 
Court for the Western District of 
Virginia, at Richmond. Robert R. Merhige, 
Jr., Senior District Judge. (CA-87-4-C).



Argued: October 7, 1988
Decided: January 3, 1989

Before HALL, MURNAGHAN, AND CHAPMAN, 
■ Circuit Judges.

Samuel Wilbert Tucker (HILL, TUCKER & 
tlARSH; J. Benjamin Dick on brief) for 
(Appellant. Jay T. Swett (Ellen L. Bane, 
MCGUIRE, WOODS, BATTLE & BOOTHE on brief); 
,Guy W. Horsley, Jr., Assistant Attorney 
General (Thomas E. Albro, SMITH, TAGGART, 
GIBSON & ALBRO on brief) for Appellees.
PER CURIAM:

This appeal represents yet another 
in a long series of attempts by James N. 
Fleming to overturn a Virginia Supreme 
Court decision upholding a libel judgment
against him. Clearly, neither this Court 
nor the district court has authority to
sit in appellate review of the Supreme
Court of Virginia, or any other state
court. Accordingly, we affirm the
district court's dismissal of Fleming's 
suit for lack of subject matter 
jurisdiction.

2
‘,yKr- 'y-



I.
The dispute giving rise to the case 

began in 1976 when the appellant, James N. 
Fleming, p u b l i s h e d  a newspaper 
advertisement charging W. Bedford Moore 
III of racism for opposing a proposed low 
income housing development near 
Charlottesville, Virginia. Moore sued 
Fleming for defamation in Albemarle County 
Circuit Court. Two trials followed. At 
the first, the jury found in Moore's 
favor, but the Virginia Supreme Court 
reversed, holding that the trial court 
erred in ruling that the advertisement was 
defamatory per se. Fleming v. Moore. 221 
Va. 884, 275 S.E.2d 632 (1981), cert.
denied, 469 U.S. 966 (1984). At the
second trial, the jury again ruled in 
Moore's favor and awarded him damages. 
The Virginia :Supreme Court upheld 
Fleming's liability but reversed the 
damage award as excessive. Fleming v .



Moore, sub. nom. Gazette, Inc, v. Harris,
229 Va. 1, 325 S.E.2d 713 (1985), cert. 
denied. 472 U.S. 1032 (1985). On remand 
the state circuit court entered a judgment 
of $233,333.34 in favor of Moore.

In the meantime, the Virginia 
Supreme Court decided Chaves v. Johnson.
230 Va. 112, 335, S.E.2d 97 (1985), 
wherein the court stated that "[p]ure 
expressions of opinion, not amounting to 
'fighting words', cannot form the basis of 
an action for defamation." Id. at 119, 
335 S.E.2d at 101. Fleming believed the 
rule announced i*n Chaves forbade entry of 
a libel judgment against him. The 
Virginia. Supreme court refused, however, 
to reconsider the libel judgment against 
Fleming in light of Chaves. Fleming once 
again petitioned the United States Supreme 
Court for a writ of certiorari, which was 
denied. Fleming v. Moore. 479 U.S. 890 
(1986). Fleming then petitioned for a

I



rehearing, but that request was denied. 
479 U.S. 1012 (1986). By Fleming's own
account,1 his petition for rehearing asked 
the United States Supreme Court to require 
the Virginia court to reconsider the 
judgment against him in light of Chaves.

Unsatisfied with pursuing the proper 
route for review of state court judgments,
(i .e.. petition to the United States 
Supreme Court for a writ of certiorari), 
Fleming latched onto another strategy: 
challenging the Virginia decision through 
lawsuits in federal district court. In 
1984, he filed a § 1983 action2 against 
Moore, the man he had allegedly libeled, 
seeking to enjoin him from enforcing the 
defamation judgment awarded by the 
Virginia courts. The district court 
dismissed the • suit, and this Court

1This court does not have before it a 
copy of Fleming's petition for rehearing.

242 U.S.C. § 1983.
5



A
affirmed, reasoning that "Fleming's sole 
possible federal remedy is by appeal from 
the Supreme Court of Virginia to the 
United States Supreme Court." Fleming v. 
Moore. 780 F.2d 438 (4th Cir. 1985)
("Fleming I"). cert, denied. 475 U.S. 1123 
(1986) .

Undaunted, Fleming brought the 
present action in the federal district 
court for the Western District of 
Virginia. He filed suit under 42 U.S.C.§§ 
1981, 1983 , 1985 (3), 1986 and 1988,
alleging that Moore, his attorneys and the 
justices of the Virginia Supreme Court who 
ruled against him on various appeals had 
deprived him of his rights under the 
Thirteenth Amendment, the Equal Protection 
Clause of the Fourteenth Amendment, and 
the First Amendment (as incorporated 
through the Fourteenth) . Fleming claimed 
that the Virginia Supreme Court decision 
imposed a badge of slavery on him within

6



the meaning on the Thirteenth Amendment by 
punishing him as a black person for 
criticizing a white man. He also claimed 
that the Chaves decision and the Virginia 
Supreme Court's refusal to reconsider his 
case in light of it, represented a 
violation of equal protection by 
demonstrating Virginia's willingness to 
protect whites' freedom to express their 
opinions, while denying similar protection 
to blacks.3

Fleming asked the district court to 
declare the Virginia Supreme Court 
judgment null and void, to enjoin 
permanently the enforcement of the libel 
judgment and to award $1,000,000 in 
compensatory and punitive damages against 
the defendants.

The district court rejected all

3Fleming asserts that the defendant 
in Chaves was white. However, the 
Virginia Supreme Court's opinion in Chaves 
makes no. reference to the race of any 
party.

7



claims for lack of subject matter 
jurisdiction. This appeal followed.

II.
Even if we were to assume arguendo, 

in our opinion, that the Virginia Supreme 
Court was in error in upholding the libel 
judgment against Fleming, we would be 
without jurisdiction to correct the 
mistake. Neither the district court nor 
this Court could grant relief to Fleming 
on any of his claims without deciding that 
the Virginia Supreme Court wrongly decided 
the merits of Fleming's state appeal. In 
effect, Fleming asks us to sit in 
appellate review of a states's highest 
court. This we may not do.

In a line of cases stretching over 
the past 65 years, the Supreme Court has 
emphasized that federal district courts 
and federal courts of appeals have no 
authority to review a final judgment of a 
state court that has acted in its judicial

s



capacity. See District of Columbia Court
of Appeals v. Feldman. 460 U.S. 462, 482
(1983) ; Rooker v. Fidelitv Trust Co. . 263
U.S. 413, 415, 416 (1923). Only the
United States Supreme Court has that
power. Feldman, 460 U.S. at 482; 28
U.S.C. § 1257.

Appellant argues, however, that the 
Rooker-Feldman doctrine does not apply 
where, as here, the plaintiff alleges 
violations of fundamental constitutional 
rights. That assertion is clearly 
incorrect. The plaintiff in Feldman had 
alleged a violation of his Fifth Amendment 
rights and yet the Supreme Court ruled 
that he could not challenge a District of 
Columbia Court of Appeals decision in 
federal district court.4 460 U.S. at 468- 
69 & n.3, 482.

4For purposes of the Rooker-Feldman 
doctrine, the Court of Appeals of the 
District of Columbia is equivalent to a 
state's highest court. 460 U.S. at 464.

9



The appellant also asserts that the 
Rooker-Feldman doctrine is inapplicable 
where, as here, a plaintiff sues under 
federal statutes that expressly allow a 
remedy for deprivation of civil rights. 
In support of the proposition, appellant 
cites Mitchum v. Foster. 407 U.S. 225 
(1972) , in which the Supreme Court held 
that § 1983 actions fell within the
exceptions to the Anti-Injunction Act,5 
and therefore a federal district court was 
not absolutely precluded under all 
circumstances from enjoining a pending 
state court proceeding. Id. at 243. 
Mitchum provides no support for Fleming's 
argument. Mitchum in no way authorized 
use of § 1983 to obtain appellate review 
of final state court decisions in federal 
district courts. Numerous circuits, 
including this one, have refused to allow 
§1983 plaintiffs to obtain judicial review

528 U.S.C. § 2283. 10



of state court judgments in lower federal
courts. in Fleming I. this Court stated 
that "[w]e detect nothing in 42 U.S.C.S 
1983 that would permit a federal court to 
relitigate the libel issues" decided 
adversely to Fleming by the Virginia 
Supreme Court. 780 F.2d at 440. See also 
Worldwide Church of God v. McNair, 805
F. 2d 888 , 893 n.4 (9th Cir. 1986) ("Cases
subsequent to Feldman make it clear that 
Feldman's jurisdictional bar applies in 
the § 1983 context, as elsewhere")? Curry 
v. Baker. 802 F.2d 1302, 1310 n.5 (11th
Cir.), cert. dismissed. 479 U.S. 1023 
(1986); Hale v. Harney. 786 F.2d 688, 691 
(5th Cir. 1986; Brinkmann v. Johnston. 793 
F.2d 111, 113 (5th Cir. 1986).

Contrary to Fleming's argument, the 
Supreme Court's 'decision in Pennzoil Co. 
v. Texaco, Inc. f 481 U.S. 1, 107 S. Ct.
1519 (1987) , provides no support for his
position. Although five .justices stated

11



in Pennzoil that the Rooker-Feldman
doctrine did not preclude Texaco's § 1983 
suit in federal court,6 the facts of that 
case are clearly distinguishable from the 
instant one. As Justice Brennan 
explained:

Texaco filed the § 1983 action only 
to p r o t e c t  its f e d e r a l  
constitutional right to a meaningful 
opportunity to appellate review, not 
to challenge the merits of the Texas 
suit. Texaco's Federal action 
seeking a stay of judgment pending 
appeal is therefore an action 
"'separable from and collateral to'" 
the merits of the state court 
judgment.

481 U.S. at _____, 107 S. Ct. at 1531
(Brennan, J., concurring) (emphasis 
supplied) (citations omitted). By 
contrast, the instant appeal seeks to 
overturn the Virginia Supreme Court's 
decision on the merits.

6The Pennzoil Court, however, held 
that the federal district court should 
have abstained from hearing Texaco's 
constitutional claims on the basis of the 
doctrine enunciated in Younger v. Harris.
401 U.S. 37 (1971). See 481 U.S. at ___,
107 S. Ct. at 1525.

12



Fleming's First Amendment arguments 
obviously present a direct challenge to 
the Virginia Supreme Court decision. He 
had ample opportunity to raise his First 
Amendment challenges before the Virginia 
Supreme Court and to petition the United 
States Supreme Court for a writ of 
certiorari on those constitutional rulings 
adverse to him.

The Thirteenth Amendment and equal 
protection arguments raised by Fleming 
present a harder question. As we 
understand Fleming's position, the alleged 
violations of the Thirteenth and 
Fourteenth Amendments did not become 
apparent until the Virginia Supreme Coux-t 
rendered its decision in Chaves. which 
took place after Fleming's first two 
appeals to the Virginia court. According 
to that theory, Fleming would have had no 
reason or opportunity to raise the 
Thirteenth and Fourteenth Amendment

13



arguments when his appeals were before the 
Virginia Supreme Court because those 
constitutional violations did not arise 
until later, when Chaves was decided. 
Such an argument lacks merit. By 
Fleming's own account, he petitioned the 
Virginia Supreme Court for a rehearing of 
his case in light of Chaves, and when that 
court refused, he 1 petitioned the United 
States Supreme Court for a rehearing 
following a denial of certiorari. Fleming 
could have and should have raised his 
Thirteenth and Fourteenth Amendment 
arguments in those rehearing petitions. 
We do not have before us the content of 
those petitions and thus do not know 
whether Fleming actually preserved the 
arguments by raising them. Nonetheless, 
the Supreme Court has emphasized that a 
litigant's failure to raise constitutional 
claims in state court does not provide 
federal district courts with jurisdiction

14 •



over those claims if they are 
"inextricably intertwined" with the state 
court decision. Feldman. 460 U.S, at 482- 
84 n.16.

In this case, Flemings Thirteenth 
Amendment and equal protection arguments 
are so "inextricably intertwined" with the 
Virginia Supreme Court's decision that 
federal district court consideration of 
those issues would, in effect, constitute 
review of a final judgment of a state 
court. To decide if the Virginia court 
applied a different standard for Fleming 
than for white libel defendants the 
district court would have to second-guess 
the V i r g i n i a  S u p r e m e  Court's 
interpretation of existing Virginia 
precedents and its application of such 
case law to the facts of the Fleming- 
Moore dispute. Such second-guessing would 
constitute impermissible appellate review 
of a state court decision.

15



F l e m i n g  c a n n o t avoid the
restrictions of the Rooker-Feldman 
doctrine by framing his challenge as civil 
rights actions against the state court 
justices,7 the attorneys and the plaintiff 
in the original libel suit. See, e.g. . 
Hale. 786 F.2d at 691 (federal district
court had no jurisdiction to consider 
plaintiff's §1983 action against ex-wife, 
her lawyer, and state judge who rendered 
divorce and child custody decree because 
such action was "inextricably intertwined" 
with the state court decision). The

7 By deciding this case on
jurisdictional grounds we do not mean to 
intimate that judicial immunity is 
unavailable to protect the justices of the 
Virginia Supreme Court from this type of 
lawsuit. It is well established, and has 
been for many years, that judges acting 
within their judicial capacities enjoy
absolute immunity from monetary damages, 
unless those jurists act in "clear absence 
of all jurisdiction." Stump v. Sparkman. 
435 U.S. 349, 355-57 (1978); Bradley v.
Fisher. 80 U.S. (13 Wall.) 335, 351
(1872) . Clearly, the justices of the
Virginia Supreme Court had jurisdiction to 
decide the appeal of the libel judgment 
against Fleming.

16



appellant's argument that the defendants 
violated his constitutional rights is 
premised on the assumption that the 
Virginia Supreme Court wrongly decided the 
merits of Fleming's case, either as a 
matter of federal or of state law. Such a 
determination would require the district 
■court to sit in appellate review of the 
Virginia Supreme Court decision.

In conclusion, this case represents 
an attempt by a litigant to obtain review 
of a state court judgment in a federal 
district court by framing it as a claim 
for violation of constitutional rights. 
Such an attempt flies in the face of the 
Rooker-Feldman doctrine and is merely a 
variation of a similar attempt this Court 
rejected three years ago in Fleming I. 780 
F.2d 438. The district court properly 
dismissed this case for lack of subject 
matter jurisdiction.

Although we find Fleming's arguments

17



without merit, we decline to award 
attorneys fees and double costs to the 
appellees pursuant to our authority under 
Fed. R. App. P. 38. We cannot say that 
Fleming's jurisdictional arguments sank to 
the level of frivolousness.

AFFIRMED.

18



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF VIRGINIA 

CHARLOTTESVILLE DIVISION

Filed:
July 22, 1987

JAMES N. FLEMING, )

)
Plaintiff, ) Civil Action

) No. 87-Q004-C
v. )

)
W. BEDFORD MOORE, III, )

et al., )

)
Defendants. )

MEMORANDUM
This matter comes before the Court 

on defendants' motions to dismiss the 
instant action under Rule 12(b)(6) of the 
Federal Rules of Civil Procedure. Having 
been fully briefed and argued, it is now

. 19



ripe for disposition.
Factual Background

The plaintiff, James N. Fleming, is 
a black real estate developer. The defen­
dants are as follows: (1) W. Bedford
Moore, III —  a white male who obtained a 
libel judgment against the plaintiff in 
the state court; (2) the present and re­
tired Justices of the Virginia Supreme 
Court -- who have heard and ruled upon a 
variety of issues related to the Moore v. 
Fleming libel suit; (3) Judge Tremblay—
a former member of the law firm that rep­
resented Mr. Moore in his libel suit 
against the plaintiff; and (4) Messrs. 
Smith, Taggart, Gibson and Albro—  
present members of the law firm that 
represented Mr. Moore in his libel suit.

The instant action arises out of an 
earlier state court libel suit brought by 
defendant Moore against the plaintiff. In 
that suit, the Albemarle County Circuit

20



Court found that Mr. Fleming had libelled 
Moore by publishing a letter in a Char­
lottesville newspaper, accusing Moore of 
opposing Fleming's proposed housing de­
velopment on land adjoining Moore's be­
cause he did not want "any black people 
within his sight." On appeal, the 
Virginia Supreme Court affirmed Fleming's 
liability, but reversed the jury's damage 
award as excessive and remanded. On 
remand, the circuit 'court ordered 
remittitur and entered judgment for 
defendant in the sum of $233,333.34.

Since that time, plaintiff has 
unsuccessfully sought appellate review on 
several occasions before both the Virginia 
and United States Supreme Courts. He also 
has unsuccessfully filed certain^ collater­
al actions in both the Eastern and Western 
Districts of Virginia, alleging various 
constitutional violations in connection
with the libel suit.



Plaintiff filed the instant action 
in the Western District on January 16, 
1987, and filed his first amended 
complaint, on February 5, 1987. By order 
dated March 27, 1987, the Western District 
judges recused themselves, and the case 
was assigned to the undersigned.

The instant action alleges 
violations of the Thirteenth Amendment; 
the Equal Protection clause of the 
Fourteenth Amendment; the Free Speech and 
Free Press Clauses of the Fourteenth 
Amendment; and 42 U.S.C. §§1981, 1983. In 
addition, plaintiff has sought leave to 
amend to add claims under 42 U.S.C. §§ 
1985(3), 1986 and 1988.

In essence, plaintiff claims that 
the state libel suit judgment was an 
"incident of slavery" in violation of the 
Thirteenth Amendment because it penalizes 
a black person for speaking out against a 
white person, as traditionally occurred by

22



custom and statute. He next claims that 
his constitutional right to speak and pub­
lish his opinions has been infringed upon 
by this judgment, while the rights of 
white persons are not similarly infringed 
upon, in violation of the Equal Protection 
Clause.

1. Motion to Amend Complaint 
As an initial matter, plaintiff has 

been granted permission to amend his 
complaint to add claims under 42 U.S.C.§§ 
1985 (3), 1986 and 1988 , and they will be
treated within the instant motion.

2• Motions to Dismiss 
The Court finds, however, that it is 

without jurisdiction to hear the instant 
claims as, despite plaintiff's prostesta- 
tions to the contrary, they fundamentally 
seek federal court review of a final state 
court judgment. ' See District Court of 
Columbia Court of Appeals v, Feldman, 460 
U.S. 462 (1983) (federal district court

23



lacks jurisdiction to hear challenge to 
state court decision even if allegation 
that state court acted unconstitution­
ally) . In addition, plaintiff seeks a 
permanent injunction against execution on 
the state court judgment —  a matter which 
also is outside of this Court's jurisdic­
tion. The Court also notes several other 
flaws with plaintiff's complaint, which 
need not be fully addressed because of the 
Court's finding on jurisdiction, including 
judicial immunity and insufficient allega­
tions to state an equal protection claim 
against the attorney defendants.

The fundamental flaw in plaintiff's 
complaint, however, is that once again 
plaintiff seeks federal court review of 
the state court's libel judgment. As the 
Supreme Court explicitly held in Feldman. 
supra. "United States district courts . . 
. do not have jurisdiction, however, over 
challenges to state court decisions in

. 24



particular cases arising out of judicial 
proceedings even if those challenges 
allege that the state court's action was 
unconstitutional. Review of those 
decisions may be had only in this Court." 
D.C. Court of Appeals v. Feldman. 460 U.S. 
462, 486 (1983).

Because what plaintiff seeks is 
federal court review of the state court's 
action in his particular case alleging its 
unconstitutionality, this Court is without 
jurisdiction, and his complaint must be 
dismissed.

An appropriate order shall issue.
/s/ Robert R. Merhiqe, Jr.____
UNITED STATES DISTRICT JUDGE

Date: 07/22/87

25



JUDGMENT
UNITED STATES COURT OF APPEALS 

for the
Fourth Circuit 
No. 87-6619

JAMES W. FLEMING
Plaintiff - Appellant

v.
W. BEDFORD MOORE; E. GERALD TREMBLAY;
LLOYD T. SMITH; JOHN K. TAGGART, III; 
MELVIN E. GIBSON, JR.; THOMAS E. ALBRO; 
HARRY LEE CARRICO, Chief Justice of the 
Supreme Court of Virginia; GEORGE MOFFETT 
COCHRAN, Justice of the Supreme Court 
of Virginia; RICHARD HARDING POFF,
Justice of the Supreme Court of Virginia; 
ASBURY CHRISTIAN COMPTON, Justice of the 
Supreme Court of Virginia; ROSCOE BOLAR 
STEPHENSON, JR. , Justice of the Supreme 
Court of Virginia; CHARLES STEVENS 
RUSSELL, Justice of the Supreme Court of 
Virginia: ALEXANDER MARKS HARMAN, JR., 
Senior Justice of the Supreme Court- of 
Virginia; THOMAS CHRISTIAN GORDON, JR., 
Retired Justice of the Supreme Court of 
Virginia; WILLIAM CARRINGTON THOMPSON, 
Retired Justice

Defendant - Appellee

APPEAL FROM the United States 
District Court for the Western District of

26



Virginia.
THIS CAUSE came on to be heard on 

the record from the United States District 
Court for the Western District of Virginia 
and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now 
here ordered and adjudged by this Court 
that the judgment of the said District 
Court appealed from, in this cause, be, 
and the same is hereby, affirmed.

/s/ John M. Greacen 
CLERK

FILED
JAN. 3, 1989 
U.S. COURT OF APPEALS 

FOURTH CIRCUIT

27



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 87-6619
FILED
JAN. 31, 1989 
U.S. Court of 

Appeals
Fourth Circuit

James W. Fleming
Plaintiff - Appellant 

versus
W. Bedford Moore, et al

Defendants - Appellees

On Petition for Rehearing with Suggestion 
for Rehearing In Banc.

O R D E R

The appellant's petition for 
rehearing and suggestion for rehearing in 
banc were submitted to this Court. As no 
member of this Court or the panel 
requested a poll on the suggestion for 
rehearing in banc, and

28



As the panel considered the petition 
for rehearing and is of the opinion that 
it should be denied,

IT IS ORDERED that the petition for 
rehearing and suggestion for rehearing in 
banc are denied.

Entered at the direction of Judge 
Murnaghan, with the concurrence of Judge 
Hall and Judge Chapman.

For the Court,

JOHN M. GREACEN_______
CLERK

29



STENOGRAPH IS. REPORT of the 
hearing held in the case of James M. 
Fleming, Plaintiff, versus T. Bedford 
Moore, III, Defendant, Civil Action #87-4- 
C, and incidents thereof, as heard before 
the Honorable James C. Turk, Chief 
District Judge, in Lynchburg, Virginia on 
January 16, 1987.

APPEARANCES: S. W. Tucker, Esq.
Hill, Tucker & Marsh 
P. 0. Box 27363 
Richmond, Virginia 23261
J. Benjamin Dick, Esq.
421 Park Street - Suite 2 
Charlottesville, Virginia

22901
Counsel for Plaintiff

Thomas E. Albro, Esq.
M. E. Gibson, Jr., Esq. 
Smith, Taggart, Gibson and 
Albro

105 - 109 East High Street 
Charlottesville, Virginia

22901
Counsel for Defendant

*  *  *

30



MR. TUCKER: What I'm claiming is
that the charge against Fleming was that 
he, as a black person, had spoken disparag
-- or written disparagingly of a white
person causing that person to be provoked, 
which was the same offense for which a 
slave would have been ---

THE COURT: I'm not sure. I don't
have the motion for judgment. I'm not 
sure they even mention the fact that Mr. 
Fleming might be black.

MR. TUCKER: It does mention it.
THE COURT: It does?
MR. TUCKER: It does.
THE COURT: I don't know.
MR. TUCKER: The motion is ——  The

motion for judgment is Exhibit #2 attached 
to the complaint.

THE COURT: Okay.
MR. TUCKER: • For our complaint under 

the Thirteenth Amendment, we do not have 
to show state action and we submit that

31



for our instant complaint claiming the 
denial of equal protection under the laws, 
that that was -—  that that is where the- 
—  where the state court in Fleming's case 
departed from long existing law, one of 
them founded deep in the Constitution and 
one founded deep in the common law, and 
has since made it clear by subsequent 
opinions that those departures from the 
common law are not a part of the law of 
Virginia. In other words, two (2) 
different rules of law were carved out for 
James Fleming in order to permit him to be 
punished for violating the slaves code—  
the slave codes. And both of those
exceptions were --

THE COURT: But that isn't what, I 
mean, a jury found the publication to be 
libelous. I mean, I'm perfectly frank to 
say I agree with the dissent that Mr. 
Justice Albertis Harrison wrote in the 
case. I don't think it could be libelous

32



as a matter of law, but I can't, you know, 
put my judgment ahead of the judgment of 
the Virginia Supreme Court. And I think 
Mr. Fleming has been wronged. I'm not 
saying he's been wronged because he's a 
black person. That I do not know. I 
think that the —  I think the Virginia 
Supreme Court was wrong in not following 
the dissent of Albertis Harrison at the 
time because I think he was absolutely 
right. I do not think the publication was 
libelous. I think it was nothing but an 
expression of Mr. Fleming's opinion of Mr. 
Bedford — - of Mr. Moore. But I can't 
substitute my opinion for the other, I 
mean, for the other court's.

MR. TUCKER: That's not what we're 
asking. That's not what we're asking. 
Let's look at it this way. Certainly, if 
Judge Turk had been the Circuit Judge for 
the City of Albemarle, the County of 
Albemarle, when that case was first tried

, 33



the first motion to strike --
THE COURT: Would have been granted

by me if I had been the judge.
* * *

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 87-3506
FILED:
JAN. 22, 1987 
U.S. Court Of 
Appeals
Fourth Circuit

JAMES N. FLEMING,

Plaintiff-Appellant,
versus

W. BEDFORD MOORE, III,
Defendant-Appellee.

Appearances: S. W. Tucker, Esquire
B. Benjamin Dick, Esquire, 
for Appellant.
Thomas E. Albro, Esquire, 
submitted a memorandum via 
telephone, for Appellee.

O R D E R

34



This is a motion tor an injunction 
pending appeal or a stay of an order of 
the district court denying a temporary- 
restraining order and preliminary 
injunction in a case filed to enjoin the 
collection of a final judgment of the 
Circuit Court of Albemarle County. The 
case has been here before, Fleming v. 
Moore. 780 F.2d 438 (4th Cir. 1985). It 
has been to the Supreme Court of Virginia 
twice1, and petitions for certiorari have 
been denied by the United States Supreme 
Court on four occasions.2

The case arose out of a judgment for 
libel obtained by Moore, a white man, 
against Fleming, a black man, who had

1Gazette v. Harris, 325 S.E.2d 713 
(Va. 1985); Fleming v. Moore. 275 S.E.2d 
632 (Va. 1981).

2Flemlng v. Moore. No. 85-2168, cert, 
den. 55 U.S.L.W. 3258 (1986); Fleming v.
Moore. No. 85-1532, cert. den. 54 U.S.L.W. 
3697 (1986) ; Fleming v. Moore. No. 84-
1740, cert. den. 53 U.S.L.W. 3895 (1985);
Fleming v. Moore. No. 84-382, cert. den. 
53 U.S.L.W. 3325 (1984),

35



published an advertisement in certain 
Charlottesville newspapers accusing the 
white man of racism. The judgment of the 
Circuit Court of Albemarle County became 
final when the Supreme Court of the United 
States denied the latest petition for 
certiorari October 14, 1986, rehearing 
denied December 8, 1986.

Fleming now says that the judgment 
of the state court was in violation of the 
Thirteenth Amendment to the Constitution 
because it is claimed it gives effect to 
an 1840 Virginia statute, reenacted in 
1860, making it a crime for a black man to 
use provoking language to a white man. It 
is claimed that this is a badge . of 
slavery, which, of course, it is.

It is also claimed by Fleming that 
the Virginia Supreme Court has been 
inconsistent in its; decisions with respect 
to the proof required for monetary damages 
in cases of libel and slander, as well as

36



in its construction of the Virginia 
Constitution on freedom of expression, Va. 
Const. Art. I 12, and that such 
inconsistencies deny to Fleming the equal 
protection of the laws simply by virtue of 
being inconsistent since that has worked 
to Fleming's disadvantage in this case. 
They add that it is more than coincidence 
that the Fleming is black [sic].

The Thirteenth Amendment question 
could have been raised in the case from 
its very beginning, yet it has never been 
raised until the complaint in the instant 
and latest case was filed in the district 
court.

The question concerning equal 
protection of the laws, even if there has 
been a mistake, is simply an error of 
state law.

In these circumstances, I am of 
opinion the district court was correct in 
its holding that it did not have

37



jurisdiction to enjoin the collection of 
this state judgment. The case is 
indistinguishable from Rooker v. Fidelity 
Trust Co.. 263 U.S. 413 (1923), in which
the court described a similar attempt as 
being an exercise of appellate 
jurisdiction, p.416. The reasoning of 
Rooker has been more recently affirmed in
D.C. Court of Appeals v. Feldman, 460 U.S.
462 (1933) , where the court stated that
the District of Columbia District Court
was without authority to review final
determinations of the District of Columbia 
Court of Appeals in judicial proceedings 
and that review of such proceedings could 
be obtained only in the Supreme Court. 
The case cited Rooker for its authority, 
p. 476.

The defendant, relies principally on 
Simon v. Southern Rv.. 236 U.S. 492 
(1915), which holds that a federal court 
may set aside a judgment of a state court

38



obtained without jurisdiction. That is 
simply not this case.

In conclusion, I feel there is 
little likelihood that Fleming will 
prevail on appeal. I also do not feel 
that the public interest requires that a 
stay be issued in this case. The instant 
case is not different in any great respect 
from this case the last time it was before 
us. There, a First Amendment right was 
being used to collaterally attack what is 
essentially the same state court judgment. 
Here, it is the Thirteenth and Fourteenth 
Amendments which Fleming seeks to use in 
attacking the state court judgment. We
said in that case that "Fleming's sole 
possible federal remedy" is in the United 
States Supreme Court. I think this case 
is not different. I do not think there is 
any more irreparable injury than exists in 
the payment of any other final judgment.

It is accordingly ADJUDGED and

39



ORDERED that the motion for an injunction 
or stay pending appeal shall be, and the 
same thereby is, denied.

The attorneys objected to every 
adverse ruling in this order which would 
be sustained by the record.

Enter this 19th day of January 1987. 
/s/ H. E. Widener, Jr.

H. E. Widener, Jr.
United States Circuit Judge

40



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF VIRGINIA

Charlottesville Division
JAMES N. FLEMING 
304-A Ridge Street 
Charlottesville, VA 22901

vs.
Plaintiff,

CIVIL ACTION
W. BEDFORD MOORE, III 
Shack Mountain 
Route 5, Lamb 1s Road 
Star Route 657 
Charlottesville, VA 22901

NO. 87-0004-C

E. GERALD TREMBLAY :Clerk's Office
Charlottesville, VA :U.S. Dist.

':Court
LLOYD T. SMITH 
105-109 East High Street 
Charlottesville, VA 22901

JOHN K. TAGGART, III 
105-109 East High Street 
Charlottesville, VA 22901

FILED:
Feb. 5, 1987 
Joyce F. Witt, 

Clerk
By s/V. Harris 
Deputy Clerk

MELVIN E. GIBSON, JR. 
105-109 East High Street 
Charlottesville, VA 22901

THOMAS E. ALBRO 
105-109 East High Street 
Charlottesville, VA 22901

HON. HARRY LEE CARRICO 
Chief Justice of the 
Supreme Court of’ Virginia 
101 North 8th Street 
Richmond, VA 23219

41



HON. GEORGE MOFFETT COCHRAN 
Justice of the 
Supreme Court of Virginia 
P. O. Box 156 
Staunton, VA 24401

HON. RICHARD HARDING POFF 
Justice of the 
Supreme Court of Virginia 
101 North 8th Street 
Richmond, VA 23219

HON. ASBURY CHRISTIAN 
COMPTON, Justice of the 
Supreme Court of Virginia 
101 North 8th Street 
Richmond, VA 24426

HON. ROSCOE BOLAR 
STEPHENSON,' JR.
Justice of the 
Supreme Court of Virginia 
P. 0. Box 198 
Covington, VA 24426

HON. CHARLES STEVENS 
RUSSELL, Justice of the 
Supreme Court of Virginia 
101 North 8th Street 
Richmond, VA 23219

HON ALEXANDER MARKS HARMAN, 
JR., Senior Justice of the 
Supreme Court of Virginia 
P. 0. Box 1438 
Pulaski, VA 24301

HON. THOMAS CHRISTIAN 
GORDON, JR., Retired 
Justice of the 
Supreme Court of Virginia 
101 North 8th Street 
Richmond, VA 23219

42



HON. WILLIAM CARRINGTON :
THOMPSON, Retired Justice :
400 Masonic Temple :
Danville, VA 24541, :

Defendants. :

AMENDED AND SUPPLEMENTAL COMPLAINT 
Preliminary Statements

1. This action is for redress of
unconstitutional abuse of state power for
the purpose and with the effect of 
depriving the plaintiff, solely because of 
his race and color, (1) of his right 
pursuant to the Thirteenth Amendment to be 
free from all badges and incidents of 
chattel slavery, (2) of his right pursuant 
to the First and Fourteenth Amendments to 
freedom of speech and of the press, and
(3) of his right pursuant to the
Fourteenth Amendment not to be denied the 
equal protection of the Constitution and 
laws of the Commonwealth of Virginia.

2. Plaintiff seeks an adjudication 
that the judgment of the Circuit Court of

43



the County of Albemarle entered against
him on 13 May 1985 in an action for
alleged defamation commenced on 3 January
1977 by. W. Bedford Moore, III, violates
the Constitution of the United States,
specifically the Thirteenth Amendment, the
Freedom of Speech and Press provisions of
the First Amendment as protected against
state abridgement by the Fourteenth
Amendment, and the Equal Protection Clause
of the Fourteenth Amendment. The
publication on which the judgment is
based, hereto attached as PX 1, is
incorporated herein by this reference. Of
and concerning the defendant who then was
and for 14 months had been opposing
Fleming's application for re-zoning to
permit a low cost housing development on
property adjoining the defendant's
residential estate, Fleming wrote:

"[A] man who wants to deprive 
working people of the same 
opportunities that Mr. Jefferson 
sought for them, * * * Bedford Moore

44



. . . does not want any black people 
within his sight."

Plaintiff alleges that said judgment 
inflicts a punishment upon him, a Negro, 
solely for his use of provoking language 
to or concerning a white person which, as 
an incident of slavery imposed by custom 
and by statute prior to the adoption of 
the Thirteenth Amendment, a Negro was 
forbidden to do. Further, the plaintiff 
seeks recovery of damages as herein shown 
and injunctive relief against the imminent 
execution on said judgment and against any 
further steps to enforce payment thereof.

3. In an action which this court 
dismissed by order entered 27 March 1985 
(Fleming v. Moore, C.A. #84-0042-C), the 
defamation judgment was alleged to be in 
violation of the First and Fourteenth 
Amendments. This court disavowed 
"appellate" jurisdiction to correct an 
apparent injustice done in the state 
courts. The court of appeals affirmed the

45



order of dismissal for perceived absence 
of state action to support federal 
jurisdiction under the Fourteenth 
Amendment. Fleming v. Moore, 780 F.2d 438 I
(4th Cir. 1985) , cert, denied (No. 85- 
1532) .

4. Not until 6 September 1985 
(when the Supreme Court of Virginia

iI
decided two defamation cases in which no 
Negro was involved) did it become apparent 
that, in cases involving white persons, 
the rights, privileges and immunities j
which had always been enjoyed by white

1
inhabitants of the Commonwealth would not 
be curtailed or otherwise adversely 
affected by anything decided or written by 
the Supreme Court of Virginia in its 
opinion in the first appeal of the 
defamation action, Fleming v. Moore, 221 
Va. 884, 275 S. E . 2d 634 (1981) (Fleming
I). The violation of the Thirteenth 
Amendment herein demonstrated and the

46



concomitant violation of the Equal 
Protection Clause of the Fourteenth 
Amendment have not been previously charged 
in any proceeding in any court, 

Jurisdiction
5. Jurisdiction of this Court is 

invoked under Title 28, United States 
Code, Section 2201 and, further, under 
Title 28 United States Code, Sections 1331 
and 1343 (a). This is an action for a 
declaratory judgment determining a 
question in actual controversy between the 
parties, for recovery of damages, and for 
injunctive relief. This action arises 
under Article Six, Section Two, under the 
Thirteenth Amendment, under the First and 
Fourteenth Amendments, and under the Equal 
Protection Clause of the Fourteenth 
Amendment to the Constitution of the 
United States and under Title 42, United 
States Code, Sections 1981, 1983, 1985(3), 
1986 and 1988.

47



Justiciable Controversy
6. In an action for alleged 

defamation, W . Bedford Moore, III 
(defendant herein) has a purported final 
judgment against James N. Fleming 
(plaintiff herein) for the sum of 
$233,333.34 with interest thereon at the 
rate of 12% per annum from 13 May 1985; 
and, except as is hereinafter shown, 
payment thereof is secured by appeal bonds 
with liquidatable surety in sums 
aggregating $258,700. The instant 
plaintiff, Fleming, contends that the 
purported judgment is unconstitutional 
and, hence, a nullity.

The Parties
7. Plaintiff is a Negro or black 

person and a descendant of slaves, was 
born in Albemarle County, Virginia, 
resides in the City of Charlottesville, 
Virginia, and throughout his life has 
performed and executed the duties and

48
4

* " -» •- ’ , r?  ' , < • _  ' i, • ̂ J  „,*v Kt , .'<■



responsibilities of citizenship of his 
state and nation, including service in the 
armed forces of this nation in the Korean 
conflict. All other parties to this 
action are Caucasians or white persons.

8. Prior to his appointment and 
qualification as one the judges of the 
Sixteenth Judicial Circuit of Virginia 
which includes the City of Charlottesville 
and the surrounding County of Albemarle, 
the defendant E. GERALD TREMBLAY was a 
partner' in the Charlottesville law firm 
then known as Tremblay and Smith which is 
presently known as Smith, Taggart, Gibson 
& Albro. The defendants LLOYD T. SMITH, 
JOHN K. TAGGART, III, MELVIN E. GIBSON, 
JR., and THOMAS E. ALBRO are the present 
partners and members of said law firm. 
Each of said defendants, as a condition of 
his qualification as an attorney-at-law, 
swore that he would support the 
Constitution of the United States. As

49
W t M l ,  W *  ̂ ,r "



attorneys at law all of said defendants 
have counseled with and represented the 
defendant W. BEDFORD MOORE, III, in the 
above mentioned action for alleged 
defamation and have consulted with each 
other with respect to that representation; 
and the defendant TREMBLAY was lead 
counsel for Moore in the first trial of 
said action. The defendants named in this 
paragraph will sometimes be referred to as 
the defendant attorneys and their client.

9. In their considerations of the 
said action for alleged defamation, the 
defendant attorneys and their client 
resolved to file and prosecute said action 
for alleged defamation and thereby• to 
injure and oppress James N. Fleming solely 
because he, a black person, had exercised 
his right and privilege, secured to him by 
the Constitution and laws of the United 
States, to write and publish his pure 
expression of opinion, however ill

50



founded, concerning the motivation of his 
white opponent in the zoning controversy, 
as freely and as much without inhibition 
by action for libel or slander as in 
Virginia white citizens have had the right 
and privilege to do since the earliest 
days of the Commonwealth.

10. The defendants the Honorable 
Chief Justice HARRY LEE CARRICO, and the 
Honorable Justices GEORGE' MOFFETT COCHRAN, 
RICHARD HARDING POFF, ASBURY CHRISTIAN 
COMPTON, ROSCOE BOLAR STEPHENSON, JR., 
CHARLES STEVENS RUSSELL, ALEXANDER MARKS 
HARMAN, JR.,' THOMAS CHRISTIAN GORDON, JR., 
and WILLIAM CARRINGTON THOMPSON, sometimes 
hereinafter referred to as defendant 
justices, are or at varying times during 
the pendency of the action for alleged 
defamation were Justices of the Supreme 
Court of Virginia; and they or varying 
combinations of four or more of them have 
constituted a majority of that court in

51



its two opinions and corresponding 
judgments on appeal of the said action for 
alleged defamation; and varying 
combinations of three of them have entered 
or concurred in the entry of orders 
granting, limiting, or denying Fleming's 
petitions for appeal to that court or his 
petition for rehearing,

11. In their consideration of 
Fleming's first appeal, the five defendant 
justices first named resolved to and did 
remand the litigation for a second trial 
and thereby and otherwise made possible 
the punishment, injury and oppression of 
James N. Fleming solely because he, a 
black person, had dared to exercise his 
right and privilege, secured to him by the 
Constitution and laws of the United States 
and by the Constitution of Virginia as 
well, to write . and publish his pure 
expression of opinion, however ill 
founded, concerning the motivation of his

52



white opponent in the zoning controversy, 
and to do so as freely and as much without 
inhibition by action for libel or slander 
as in Virginia white citizens have had the 
right and privilege to do since the 
earliest days of the Commonwealth.

12. In the order granting Fleming's 
second appeal, entered following an oral 
presentation before three of the defendant 
justices, the Supreme Court of Virginia 
rejected consideration or reconsideration 
of Fleming's claim that his publication 
was an absolutely privileged expression of 
opinion under the First Amendment and his 
claim that summary judgment in his favor 
should have been entered for the failure 
of the plaintiff in the action for alleged 
libel to prove special damages.

13. Following the refusal of the 
Supreme Court of Virginia to allow Fleming 
a third appeal, that court, or a panel of 
three of the defendant justices, denied

53



Fleming's timely petition for rehearing 
and thereby refused to conform the 
judgment in the libel action against 
Fleming to its holdings, published after 
Fleming's third petition for appeal had 
been filed, (1) that the First Amendment 
to the Federal Constitution and article 1, 
section 12 of the Constitution of Virginia 
protect the right of the people to teach, 
preach, write, or speak any opinion (not 
amounting to "fighting wcprds") , however 
ill-founded, without inhibition by actions 
for libel and slander and (2) that it is 
for the court, not the jury, to determine 
as a matter of law whether an allegedly 
libellous statement is one of fact or one 
of opinion.

Incidents And Badges Of Slavery In The 
Land Of The Free; And Vestiges Thereof

14. Before the Federal Constitution 
was ordained and established, the citizens 
of Virginia had enshrined in their Bill of 
Rights "as the basis and foundation of

- 54



government * * *
"12. That the freedom of the press 
is one of the great bulwarks of 
liberty, and can never be restrained 
but by despotic governments."

The constitutional convention of 1867
proposed, and the voters of Virginia
subsequently adopted, this addition:

"and any citizen may speak, write 
and publish his sentiments on all 
subjects, being responsible for the 
abuse of that liberty."

The convention which produced the
Constitution of Virginia of 1902 inserted
the adverb "freely" immediately before
"speak, write and publish". As revised in
1971, the , Constitution of Virginia, in
section 12 of article I (Bill of Rights),
provides:

That the freedoms of speech and of 
the press are among the great 
bulwarks of liberty, and can never 
be restrained except by despotic 
governments; that any citizen may 
freely speak, write, and publish his 
sentiments on all subjects, being 
responsible for the abuse of that 
right; that the General Assembly 
shall not pass any law abridging the 
freedom of speech or of the press, 
nor the right of the people

55



I
peaceably to assemble, and to

I petition the government for the
redress of grievances.
15. Prior to the adoption of the

Lhirteenth Amendment, the plaintiff's
.ancestors, and all other inhabitants of
Virginia who were of the plaintiff's race
[and color, were excluded by custom and by
law from the rank of citizen of Virginia;
and by custom and by law they were denied
freedom of the press or any other freedom
which would be inconsistent with their
subjugation. The social climate then
prevailing is illustrated by a section of
a statute enacted by the General Assembly
of Virginia in the 1847-8 Session and
carried over into the Code of Virginia
1860 as Section 11 of Chapter 200
(OFFENSES BY NEGROES), viz;

"A negro shall be punished with
stripes; First, If he use provoking 
language or menacing gestures to a 
white person; * *
16. Within the memory of persons

now living, white citizens generally have

56



resented speech by a black person when 
delivered in a manner characterized by 
them as impudent; and for such impudence 
black citizens have been visited with 
violence and other public displays of 
hostility. Social institutions and 
conventions taught many Negroes to be 
humble, subservient, and as reverentially 
respectful to white persons as their 
forebears were required to be; and those 
social institutions and conventions have 
taught many white persons, particularly in 
Albemarle County, to expect Negroes to be 
that way and to resent Negroes who are 
not.

17. No single individual could have 
been more qualified to make assessment of 
the attitude of white citizens of 
Albemarle County toward black people than 
Bernard Chamberlain, Esquire a life long 
resident of the county and an attorney 
practicing there since 1922. During the

. 57



October, 1982 re-trial of the defamation 
action, upon being asked on direct 
examination by counsel for the plaintiff 
therein (Moore) if, in his twenty-five 
years of intimate acquaintance, he had 
heard Professor Moore say anything 
degrading about black people, Attorney 
Chamberlain answered in these words: "I 
never have; strange thing, I never have."

18. On November 18, 1977 a jury of 
white citizens of that county, impaneled 
to try only the issue of damages, made 
awards of a mere $18,000 in an action for 
wrongful death against two white men, one 
of whom had shot and killed the unarmed 23 
year old black man who was fleeing from 
them. Lane v. Scott. 220 Va. 578, 260 
S. E . 2d 238 (1979), cert denied, 446 U.S. 
986 (1980). Exactly eighteen days later, 
a jury of white citizens of that county 
returned a verdict for the plaintiff in an 
action for libel and awarded damages

58



against the black defendant totaling 
$110,000 upon pleading and proof that the 
defendant, "a member of the black race", 
had published an advertisement (PX-1 
herewith) of and concerning plaintiff, " a 
member of the white race", and that on 
account thereof "the plaintiff has been 
greatly insulted, mortified, held up to 
ridicule, humiliated, and aggrieved." A 
copy of the body of the motion for 
judgment in the action fob libel, as set 
out in the Supreme Court of Virginia 
Record No. 78-1061 at pages 1 and 2 of the 
Appendix, is herewith filed, marked PX-2.

19. On retrial of the defamation 
action on October 12, 1982 the plaintiff 
in that action (Moore) peremptorily struck
from the venire the only two black
c iti z ens who were found free from
exception and then, when testifying,
appealed to the propensities and
proclivities of the jurors in these words:

59



"I felt that he had put a gap in my 
honor that could only be restored by 
vindication of my fellow citizens on 
this jury." Fleming v. Moore. sub 
nom. The Gazette v. Harris. 229 Va. 
1, 47, 325 S. E . 2d 713, 744 (1985),
cert. denied (No. 84-382); cert. 
denied (No. 84-1740); cert. denied 
(No. 85-2168), rehearing denied 
December 8, 1986.

That jury responded to the plea for
vindication by finding for the plaintiff
and making awards of $100,000 for
compensatory damages and $250,000 for
punitive damages and interest on the
$250,000 award at the rate of 12% a year
from January 15, 1976— the date of the
publication. The appellate court held, 
and here the plaintiff alleges, that the 
compensatory damage award of $100,000 was 
"not the product of a fair and impartial 
decision" and that the punitive damage 
award of $250,000 "on its face indicates 
prejudice or partiality." (229 Va. at 48, 
51; 325 S.E.2d at 745, 747).

20. A copy of the final judgment of 
the Circuit Court of the County of



Albemarle, as entered on 13 May 1985 
following remittitur proceedings, is 
herewith filed, marked PX-3. The Supreme 
Court of Virginia refused appeal from that 
judgment and the Supreme Court of the 
United States denied petition for writ of 
certiorari and denied petition for 
rehearing.

Freedom Of The Press Did Not 
Avail The Black Defendant

21. The Virginia cpurts turned deaf
ears to the black defendant's
protestations that he had a constitutional
privilege to publish his opinion
concerning the professed motivation of his
white opponent in the on-going zoning
controversy. In Fleming I, the appellant
argued:

"The article authored by Fleming 
appearing in the Cavalier Daily on 
January 15th and 16th, 1976 was
constitutionally protected speech. 
It was not per se libelous, by any 
definition, of Professor Moore and 
the Court committed reversible error 
in allowing the case to be presented 
to a jury over Fleming's well put

61



motion to test the sufficiency of 
the claim." (Supreme Court of 
Virginia Record No. 78-1061 - Brief 
of Appellant, page 20.)
22. In Fleming X/ the court

correctly held "that the trial court erred
in ruling that Fleming's advertisement was
defamatory per se" (221 Va. at 891; 275
S.E.2d at 636); and then the court went on
to "resolve other issues that otherwise
may arise again upon retrial." Focusing
on Gertz v. Robert Welch, Inc.. 418 U.S.
323, 345 (1974) (and making no mention of
section 12 of article I (Bill of Rights)
of the Constitution of Virginia), the
Supreme Court of Virginia held: "Since
Fleming is not a media defendant and Moore
is not a public . figure, Gertz does not
control." (221 Va. at 893? 275 S.E.2d at
638.) Except for the dissenting opinion
of Justice Harrison who would have entered
final judgment for the defendant, there is
no recognition in Fleming I of the
d e f e n d a n t ' s  claim of absol u t e

62



constitutional privilege. By its silence 
on the point of privilege, the appellate 
court indicated its approval of punishment 
of the "black" realtor whose publication 
had provoked a "white" university 
professor.

23 . In Fleming II, one of the
questions presented in the petition for
appeal was -

"(A) Was the advertisement an
absolutely privileged expression of 
opinion under the First Amendment?"

In discussing what standard might be set
for an alleged libel by a private
individual published in a newspaper on a
matter of public concern, the petition for
appeal noted that Article 12 of Virginia's
Bill of Rights "is no less soaring than
its federal counterpart." The state
appellate court refused to entertain the
question of constitutional privilege.

24. Seven months after the Virginia
court decided Fleming II. it decided a

63



ease (Chaves v, Johnson. 230 Va. 112, 335 
S.E.2d 97 (1985)) the facts in which did
not suggest analogy with the punishment of 
a Negro for using provoking language to or 
concerning a white person. In a letter to 
the members of the Council of the City of 
Fredricksburg, Johnson, an architect, had 
charged (1) that his competitor, Chaves, 
"has had no prior experience in this type 
of project" and (2) that council had 
"a gree[d ] to pay [to Chaves] an 
Architectural fee that is over 50% more 
than what could be considered a reasonable 
fee." in Chaves' ensuant action for 
damages,, the trial court set aside the 
verdict for the plaintiff on the 
defamation count, "on the grounds that 
Johnson's 1 statements were mere statements 
of opinion." (230 Va. at 118; 335 S.E.2d 
at 101).

The Supreme Court of Virginia 
affirmed, saying;

6|



"Pure expressions of opinion, 
not amounting to 'fighting words,' 
cannot form the basis of an action 
for defamation. The First Amendment 
to the Federal Constitution and 
article 1, section 12 of the 
Constitution of Virginia protect the 
right of the people to teach, 
preach, write, or speak, any such 
opinion, however ill-founded, 
without inhibition by actions for 
libel and slander. • '[E]rror of 
opinion may be tolerated where 
reason is left free to combat it. ' 
Thomas Jefferson's First Inaugural 
Address (1801). '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.' Gertz 
v. Robert Welch. Inc., 418 U.S. 323, 
339-40 (1974) .

"It is for the court not the 
jury, to determine as a matter of 
law whether an allegedly libelous 
statement is one of fact or one of 
opinion. * * *» (230 Va. at 119,
335 S .E .2d at 101-2 (1985)).
25. That which was written and

published by Fleming of and concerning
Moore is more readily seen as pure
expression of opinion than that which was
written and published by Johnson of and
concerning Chaves. The only basis for
distinction between Chaves v. Johnson and

, 65



the Fleming cases is that the Fleming 
cases suggest and permit analogy with the 
punishment of a Negro for his use of 
language which provoked a white person.

For Fleming's Case Only,
The Common Law Was Tortured
26. In Fleming I, the court held 

that the trial court had erred in ruling 
that Fleming's advertisement was defama­
tory per se. With respect to recovery of 
damages in actions for libel per guod, the 
settled law in Virginia was stated by its 
highest court in Moseley v. Moss. 47 Va.
(6 Gratt.) 534, 538 (1850), viz:

"The common law does not give 
reparation for all derogatory or 
disparaging words. To make such 
words actionable, unless special 
damages be shewn, they must impute 
some offence against the law, 
punishable criminally; or the having 
a contagious disorder tending to 
exclude from society; or which may 
affect one injuriously in his office 
or trust, or in his trade, 
profession or occupation; or which, 
in the case of a libel or written 
slander, tend to make the party 
subject -to disgrace, ridicule or 
contempt. Words spoken that are 
merely vituperative, or insulting,

-  66



or imputing only disorderly or 
immoral conduct, or ignoble habits, 
propensities or inclinations, or the 
want of delicacy, refinement or good 
breeding, are not regarded by the 
common law as sufficiently 
substantial to be treated as 
injuries calling for redress in 
damages." (emphasis added).

That doctrine was followed in M. Rosenburg
& Sons v. Craft. 182 Va. 182, 29 S.E.2d
375, 151 A.L.R. 1095 (1944) and in Shupe
v. Rose's Stores. 213 Va. 374, 192 S.E.2d 
776 (1972). In Shupe, the court was urged 
to overrule its earlier holdings that 
where the alleged defamatory language is 
not actionable per se and there were no 
allegations or proof of special damages, 
the trial court had properly dismissed the 
action; and the court responded: "We know
of no logical reason for overruling those 
cases and decline to do so." (213 Va. at
376, 192 S.E .2d at 767).

27. In his defamation action 
against Fleming, Moore's only allegation 
of damages was that

67



"on account of said libel, the 
plaintiff has been greatly insulted, 
mortified, held up to ridicule, 
humiliated, aggrieved, and has 
sustained and is entitled to recover 
general and punitive damages." (PX~ 
2)
28. The evidence in support of that

allegation is limited to Moore's testimony 
that, on occasion, he was insulted, 
ridiculed, mortified, upset, embarrassed, 
etc., and, as quoted in Fleming II: "I
felt that he had put a gap in my honor."

29. In Fleming I, the appellant
argued: "It is clear that in order for W.
Bedford Moore, III, to prevail the article 
published by Fleming must be either 
libelous per se or its publication must 
have occasioned, a special loss, which 
Moore must have properly plead and proved 
in his evidence. See Rosenberg and Sons 
V. Craft, 182 Va. 512, 29 S.E.2d 375."
(Supreme Court of Virginia Record No. 78- 
1061 - Brief of Appellant, page 20).

30. In Fleming I, we read:

68



"Moore did not allege or prove that 
he suffered any monetary loss. He 
did allege, however, that he had 
been insulted, mortified, held up to 
ridicule, and humiliated by the 
statement. * * * To the extent that 
language in Shupe may be construed 
to indicate that emotional upset and 
embarrassment cannot constitute 
'special damages', it is hereby 
modified." (211 Va. at 894 ; 275 
S.E .2d at 639).
31. The court did not indicate what 

in Fleming's case was the "logical 
reason", absent from its earlier cases, 
for not following the long standing 
decisions requiring proof of special 
damages in actions for defamation per 
quod. In the penultimate paragraph of its 
opinion in Fleming I, the court removed a 
common law obstacle to the infliction of 
punishment for Fleming's provoking 
language concerning a white person by 
"modifying" the concept of "special 
damages" which, until Fleming I, was 
universally considered as meaning the loss 
of some tangible thing of objectively 
determinable value.

69



32. Seven months after the decision
in Fleming II, the court decided Great
Coastal Express v. Ellington. 230 Va. 142,
334 S. E. 2d 846 (1985) and, in so doing,
upheld the ruling of the trial court that
commercial bribery (a Class III
misdemeanor punishable by a fine) was a
criminal offense involving moral turpitude
and, hence, that an accusation of
commercial bribery was defamation per se.
The appellant was upheld in its argument
"that damages for embarrassment and
humiliation would be presumed without
proof of pecuniary loss." (230 Va. at
146; 334 S.E.2d at 849). Without so
saying, the court repudiated the tortured
reasoning in the penultimate paragraph of
Fleming I by stating, obiter dictum, the
reason why, in cases of alleged defamation
per guod, the plaintiff must plead and
prove pecuniary loss, viz;

"It is difficult, if not impossible, 
to prove with mathematical precision

- 70



the quantum of damages for injury to 
reputation, humilation, and 
embarrassment which may flow from a 
defamation. For this reason, the 
common law, as early as 1670, 
modified the usual standard of proof 
of damages in those cases where the 
words uttered were actionable per 
se.11 (230 Va. at 148; 334 S.E.2d at
850)

Thus the notion expressed in Fleming I, 
that " ' special damages' . . . are not to
be limited to pecuniary loss", has been 
limited to an action based upon a Negro's 
use of provoking language to or concerning 
a white person.

No Other Remedy Is Available
33. By order of 24 January 1986 the 

Supreme Court of Virginia refused the 
instant plaintiff's (Fleming's) 13 August 
1985 petition for appeal from the 13 . May 
1985 final judgment order of the Circuit 
Court of the County of Albemai'le (PX-3) . 
Thereupon, on 30 January 1986, Fleming 
filed a petition for rehearing wherein, 
inter alia, he called the attention of the 
court to its 6 September 1985 decision in

71



Chaves v. Johnson (supra), in which (as in 
Fleming I) there was neither public figure 
nor media defendant; and he argued that, 
his case being indistinguishable from 
Chaves, the court should terminate the 
defamation litigation by an entry of final 
judgment for the defendant therein. 
Rehearing was denied on 7 .March 1986.

34. Plaintiff (Fleming) petitioned 
the Supreme Court of the United States for 
a writ of certiorari, tendering questions 
arising under the First Amendment and, 
also, suggesting that its recent decision 
concerning racial discrimination in jury 
selection in criminal . cases should be 
extended to civil cases in which racial 
issues are involved. By timely petition 
for rehearing, following denial of 
certiorari, he sought remand of the case 
to the Supreme Court of Virginia for 
reconsideration in the light of its 6 
September 1985 opinions in Great Coastal

72



Express v. Ellington (supra) and in Chaves
v. Johnson (supra). Rehearing was denied.

Irreparable Injury And Compensable 
Damages

35. From the first time a judge of 
the Circuit Court of the County of 
Albemarle ruled that the subject 
publication was not constitutionally 
privileged expression of opinion, the 
plaintiff has been and continues to be 
irreparably injured by being denied the 
rights of speech and press which all 
American citizens and, particularly, all 
citizens of Virginia enjoy. Such
irreparable injury is exacerbated by the 
circumstance that the constitutional 
privilege is denied him solely because he, 
a black person, wrote uncomplimentarily of 
and concerning a white person. Such 
irreparable injury will continue until a 
court of the United States having 
jurisdiction in the premises will have 
adjudged and ruled that the subject

73



publication was pure expression of opinion 
within constitutional protection of 
freedom of speech and press, which could 
not lawfully have been denied to the 
plaintiff because of his race, or because 
of the race of any person of or concerning 
whom any part of it was written, or for 
any other reason.

36. At all times during the 
pendency of the defamation litigation, and 
particularly upon and after the failure 
and refusal of the Supreme Court of 
Virginia on 5 March 1981 to give effect to 
his constitutional privilege as the dis­
senting Justice Albertis Sydney Harrison, 
Jr., would have done, the plaintiff, 
Fleming, has endured and continues to en­
dure mental anguish of the greatest 
conceivable severity as a result of the 
denial, solely because of race, of his 
right as a citizen of the United States 
and of the Commonwealth of Virginia to



freely express his opinion contradicting 
the professedly altruistic motivations of 
his opponent in a then on-going zoning 
controversy. Moreover, in his defense of 
the defamation litigation for a decade, 
the plaintiff, Fleming, has incurred enor­
mous expense. And because the defendants 
have, and each of them has, knowingly and 
wilfully inflicted injury and oppression 
upon the plaintiff, solely because of race 
and in violation of the Thirteenth 
Amendment, the plaintiff claims and is 
entitled to recover punitive damages.

37. Plaintiff is informed and 
alleges that upon sight draft of the 
defendant W. Bedford Moore, III, dated 
January 16, 1987, drawn under the irrev­
ocable letter of credit securing plain­
tiff's appeal bond filed on June 11, 1985 
in the Clerk's Office of the Circuit Court 
of Albemarle County, Albemarle Bank & 
Trust Co. on January 20, 1987 delivered to

75
W IT”



the defendant Moore the sum of $233,000. 
Unless injunctive relief as is herein 
prayed will be granted, the defendant 
Moore will cause to be liquidated a cer­
tificate of deposit of the principal sum 
of $25,700 with interest thereon accrued 
which stands as security on the plain­
tiff's additional bond in the defamation 
action, and said defendant will cause ex­
ecution to be issued against other proper­
ties of the plaintiff and will take other 
steps in further enforcement of the 
judgment.

38. Moreover, there is yet pending 
in the Circuit Court of the City of 
Charlottesville an action for alleged 
defamation styled W. Bedford Moore, III, 
plaintiff vs. James N. Fleming, defendant, 
based upon the appearance of the subject 
advertisement (PX-1) in a newspaper 
published in the City of Charlottesville. 
A copy of the motion for judgment in that

- 76



action is herewith filed, marked PX-4.
WHEREFORE, plaintiff prays:
(a) That the court will advance 

this case on the docket and order a speedy 
hearing at the earliest practicable date;

(b) That the court will adjudge and 
declare (1) that in the action commenced 
on January 3, 1977 in the Circuit Court of 
the County of Albemarle by W. Bedford 
Moore, III against James N. Fleming, the 
very essence of the motion for judgment is 
a charge that a black person wrote and 
caused to be published an advertisement 
protesting racism and, in so doing, made a 
pure expression of opinion concerning the 
motivation of a white person therein named 
who then was opposing Fleming's 
application for re-zoning and who thereby 
was "greatly insulted, mortified, held up 
to ridicule, humiliated, and aggrieved"; 
(2) that such charge is analogous to a 
prosecution for the use by a Negro of

77



provoking language to a white person 
which, prior to the ratification of the 
Thirteenth Amendment to the Constitution, 
would have been a violation of an Act of 
the General Assembly of Virginia passed at 
its 1847-8 session and carried over into 
the 1860 Code of Virginia as one of the 
proscribed offenses by Negroes; (3) that 
the conduct of such action in a court of 
law, subjecting the defendant therein to 
punishment, penalties, and exactions to 
which white citizens are not subjected, 
was a vestige of slavery, impermissible 
under the Thirteenth Amendment; (4) that 
the Thirteenth Amendment and 42 U.S.C. 
1981 obviously preclude jurisdiction in 
any court, state or federal, to reduce any 
person to slavery or to impose a badge or 
incident of slavery upon any black person;
(5) that the denial by the Circuit Court 
of the County of Albemarle and the Supreme 
Court of Virginia to James N. Fleming of

78



the right, secured in section 12 of arti­
cle I (Bill of Rights) of the Constitution 
of Virginia, to speak, write, and publish 
his sentiments and opinion, however ill 
founded, in his advertisement protesting 
racism, as freely and without inhibition 
by actions for libel and slander as was 
subsequently accorded the white defen­
dant in Chaves v. Johnson, 230 Va 112 
(1985), violated the First and Fourteenth 
Amendments' guaranty of freedom of speech 
and of the press and, also, the Equal 
Protection Clause of the Fourteenth Amend­
ment; (6) that the Thirteenth Amendment 
and the Equal Protection Clause of the 
Fourteenth Amendment were offended by the 
denial by the Circuit Court of the County 
of Albemarle and the Supreme Court of 
Virginia of the benefit of the common law 
requirement of allegation and proof of 
monetary loss or other measurable special 
damages in an action for defamation per

79



guod, the viability of which common-law 
requirement was subsequently recognized in 
Great Coastal Express v . Ellington, 2 3 0
Va. 142 (1985); and (7) that the final 
judgment of the Circuit Court of the 
County of Albemarle entered on 13 May 1985 
in the action styled W. Bedford Moore, III 
v. James N. Fleming is unconstitutional, 
null, and void;

(c) That the court will permanently 
enjoin and restrain the defendant, w. 
Bedford Moore, III, from causing execution 
to be issued upon, or otherwise taking 
steps to enforce payment of the judgment 
of the Circuit Court of the County of 
Albemarle entered on 13 May 19 8 5 in the 
action styled W. Bedford Moore, III v. 
James N. Fleming;

(d) That the plaintiff recover 
against the defendants jointly and 
severally, compensatory damages in the sum 
of $750,000 and punitive damages in the

80

—̂ ;.. v)t v »■?



sum of $250,000; and
(e) That the plaintiff will have 

such other and further relief as is just.

JjkL James N. Fleming
James N. Fleming

/s/ S. W. Tucker______
S. W. TUCKER
HILL, TUCKER & MARSH

509 North Third Street 
P. 0. Box 27363 
Richmond, VA 23261-7363 
(804) 648-9073

Of Counsel for Plaintiff

/s/ J. Beniamin Dick 
J. BENJAMIN DICK

421 Park Street, Suite 2 
Charlottesville, VA 22901 
(804) 977-6608

Of Counsel for Plaintiff

[Verfication Omitted]

81



[PX-1]
The Cavalier Daily, University of 
Virginia, Charlottesville, Friday, January 
16, 1976

R A C I S M
I have endeavored to realize the 

opportunity to provide housing and 
pleasant surroundings for working people- 
the sort of people who made this the great 
country that it is.

I do not expect any Farmington 
members to buy my houses. The tenured 
position-holders who live off the public 
dole at the expense of the working people 
are already well-housed, and could not be 
expected to live in a racially-integrated 
neighborhood, anyhow.

There is a great deal of irony in 
the fact that here in Mr. Jefferson's 
country 200 years after his vision of 
situating his beloved Monticello upon the 
hill-top overlooking the developing 
community we have a replica of Monticello 
upon the hill overlooking my property 
which is occupied by a man who wants to 
deprive working people of the same 
opportunities that Mr. Jefferson sought 
for them. Mr. Jefferson even located his 
slaves' quarters down the hill from his 
house, but Bedford Moore, the occupant of 
little Monticello does not want any black 
people within his sight.

There is a great conflict waging 
between the haves , and the have-nots. 
Obviously we . have created too much 
financial security for the tenured segment 
of the economic community whose greed is 
repeatedly shown by their expression of

- 82



"I've got mine - too bad about you".
I am a lover of liberty and freedom 

of opportunity. I cannot stand by and see 
the have-nots oppressed by the no-growth 
people who are living off of our work. I 
know that this Country did not achieve the 
highest living standard in the world by 
no-growth or by oppression of the working 
man, and yet today the opportunity to 
improve one's living standard is being 
violently opposed by the same people who 
oppose my proposed neighborhood.

Pollution of the reservoir is being 
used as the current excuse to foster no­
growth. ! The solution, of course, is to 
remove the guaranteed incomes of these 
greedy people and put them in the position' 
of seeing the world through the eyes of 
one seeking the opportunity to improve his 
or her living standard. Only then would 
they admit that the pollution excuse is a 
sham.

I will develop Evergreen, and a lot 
of people will benefit from it.

Signed: JAMES N. FLEMING
Advertisement



V I R G I N I A :
IN THE CIRCUIT COURT OF ALBEMARLE COUNTY

W. BEDFORD MOORE, III, 
Plaintiff, 

v .
JAMES N. FLEMING,

Defendant.

)
)
)
)) At Law No. 97 6-L 
)) [Filed 3 Jan.
) 1977]
)

[PX 2]
MOTION FOR JUDGMENT

To the Honorable David F. Berry, Judge of 
Said Court:

Comes now the plaintiff, W. Bedford 
Moore, III, by counsel, and respectfully 
moves this Court for judgment against the 
defendant, James N. Fleming, and in 
support of his motion states the 
following:

1. At all times mentioned herein, 
W. Bedford Moore, III, has been a private 
citizen residing at "Shack Mountain" in a 
racially integrated area of Albemarle 
County, Virginia. Plaintiff is a member 
of the white race and is a professor at

84



the University of Virginia.
2. At all times mentioned herein, 

James N. Fleming has been a real estate 
developer engaged in the development of a 
proposed residential subdivision known as 
"Evergreen" which abuts the "Shack 
Mountain" property owned by the plaintiff. 
James N. Fleming is a member of the black 
race.

3. From time to time since the 
latter part of 1974, plaintiff has 
exercised his constitutional rights as a 
citizen to raise issues before 
governmental agencies of the County of 
Albemarle concerning the environmental 
impact of "Evergreen" on the Albemarle- 
Charlottesville Reservoir and the 
surrounding area, including "Shack 
Mountain." At no time have any of 
plaintiff's efforts in this regard been 
motivated by concerns relating to race or 
to the defendant personally.

85



4. On January 15 and 16, 1976,
defendant wrongfully, willfully, 
maliciously and injurisouly published a 
certain false, scandalous, malicious, 
insulting and defamatory libel of and 
concerning plaintiff, purporting to have 
been written by defendant, in a certain 
daily newspaper of general circulation 
known as "The Cavalier Daily", published 
and circulated in the County of Albemarle 
and the surrounding area, having a 
circulation of approximately 15,000 
copies. This false, scandalous,
defamatory, insulting and libelous matter 
was printed in the form of an 
advertisement entitled "RACISM" a copy of 
which is attached hereto as Exhibit "A" 
and prayed to be read as a part of this 
pleading. This libelous matter was 
communicated, conveyed, and made known by 
the defendant to the plaintiff and divers 
other persons in Albemarle County and the

,86
! . n n i im n i iM



surrounding area.
5. These false, scandalous, 

malicious, defamatory and insulting words 
are, from their usual construction and 
common acceptance, insults and tend to 
violence and breach of the peace.

WHEREFORE, on account of said libel, 
the plaintiff has been greatly insulted, 
mortified, held up to ridicule, 
humiliated, aggrieved, and has sustained 
and is entitled to recover general and 
punitive damages, and plaintiff demands 
recovery from the defendant in the sum of 
FIVE H U N DRED THOUS A N D  DOLLARS 
($500,000.00) for general damages, and the 
sum of FIVE HUNDRED THOUSAND DOLLARS 
($500,000.00) for punitive damages, 
together with his attorneys' fees and the 
costs of this action.

Trial by jury is demanded.
W. BEDFORD MOORE, III 
By counsel

87



[PX 3]
FINAL JUDGMENT ORDER 
On April 16, 1985 came the

parties, by counsel, pursuant to the 
mandate of the Supreme Court of Virginia 
in Record Number 831446 dated February 1, 
1985, in which this case was remanded to 
the Circuit Court of Albemarle County for 
further proceedings consistent with the 
written opinion of the Supreme Court. In 
that opinion, the Supreme Court of 
Virginia affirmed the compensatory and 
punitive liability of James N. Fleming 
("Fleming") but reversed both damage 
awards as excessive. The Supreme Court of 
Virginia directed this Court to require W. 
Bedford Moore, III ("Moore") to remit a 
"substantial part" of his compensatory 
award and a "substantial part" of his 
punitive award, or else submit to a new 
trial on the issue of damages only.

For the reasons stated by this Court

8 3

V : ; v .  'V O  *V ... . . .  •



from the bench at the conclusion of the 
argument of counsel, the transcript of 
which hearing is hereby made a part of the 
record, it is ADJUDGED, ORDERED and 
DECREED that Moore shall submit to a new 
trial on the issue of damages only or 
shall remit one-third of the compensatory 
damage award of $100,000 and one-third of 
the punitive damage award of $250,000, 
resulting in a compensatory damage award 
of $66,666.67 and a punitive damage award 
of $166,666.67. Plaintiff's request for 
the award of prejudgment interest on the 
resulting compensatory damage award is 
denied.

The Court having ordered remittitur 
of damages as noted herein, Moore, by 
counsel, pursuant to Virginia Code 8.01- 
3 83.1, stated in open court that Moore 
accepts the remittitur and judgment of the 
court for the reduced sums, without 
protest or exception. Therefore,

.;a 89



It is ADJUDGED, ORDERED and DECREED, 
that the plaintiff, W. Bedford Moore, III, 
have judgment against the defendant, James 
N. Fleming, in accordance with the 
aforesaid judgment of the Court in the sum 
of TWO HUNDRED THIRTY THREE THOUSAND THREE 
HUNDRED THIRTY THREE AND 34/100 DOLLARS 
($233,333.34). It is further ADJUDGED, 
ORDERED and DECREED that pursuant to Rule 
5:9 of the Supreme Court of Virginia the 
transcript of the hearing of April 16, 
1985 ore tenus be, and the same hereby is, 
made a part of the record in this case.

Fleming having indicated his 
intention to appeal this Final Judgment 
Order, and having moved the Court, to 
suspend execution of this judgment, the 
Court ORDERS that execution of this 
judgment is suspended so long as Fleming 
timely prosecutes his appeals and 
thereafter so long as the matter is under 
consideration by the Supreme Court of

90



Virginia; provided, however, that Fleming 
or someone for him shall file in the 
office of the Clerk of this Court an 
appeal bond approved by the Judge of this 
Court within,thirty (30) days of the entry 
of this Order in the penalty of Two 
hundred thirty-three thousand Dollars 
($233,000.00), reciting this judgment and 
Fleming's intention to appeal this Final 
Judgment Order.' This Court further ORDERS 
that the two appeal bonds previously filed 
in this matter shall be released 3 0 days 
after the entry of this Order and the 
Clerk of this Court shall return them to 
counsel for Fleming.

ENTER /s/ F. W. Harkrader, Jr.
Judge

DATE: 5/13/85_________________

91



IN THE SUPREME COURT OF VIRGINIA 
AT RICHMOND 

JAMES N. FLEMING, 
Appellant, 

v.
W. BEDFORD MOORE, III, 

Appellee
PETITION FOR APPEAL
September 2, 1933 * * *

II. ASSIGNMENTS OF ERROR
(A) The trial court erred in 

failing to either grant Fleming's Motion 
to Dismiss or strike plaintiff's evidence
because the alleged libel was an 
absolutely privileged expression of 
opinion under the First Amendment.

(B) The trial court erred in 
failing to strike plaintiff's evidence 
because the alleged libel was not 
defamatory as a matter of law.

(C) The trial court erred in 
failing either to grant Fleming's Motion

92



for Summary Judgment or his motion to 
strike plaintiff's evidence because 
plaintiff failed to prove special damages, 
which must include but are not limited to 
monetary loss.

(D) The jury's award is so 
excessive that it indicates the jury was 
influenced by passion, prejudice or 
corruption, or misconceived or 
misconstrued the law or facts.

(E) The jury's award of prejudgment 
interest at the rate of 12% per annum is 
contrary to law because prejudgment 
interest is not allowable on punitive 
damages and, further, because 12% exceeds 
the maximum allowable rate of prejudgment 
interest.

ii

i

i
:

(F) The trial court erred in
concluding that Moore was not a public 
figure.

(G) The trial court erred in
refusing to instruct the jury that, in

93

. »—.. . . . .. . . . I'U) ». . 111!--'’.



order to find Fleming .liable for 
compensatory damages, it must find that 
Fleming knew what he was publishing was 
false or had reckless disregard for 
whether or not it was true.

(H) The trial court erred in 
refusing to strike plaintiff's evidence•on 
punitive damages because there was 
insufficient evidence on which the jury 
could conclude that Fleming knew what he 
was publishing was false or had reckless 
disregard for whether or not it was true.

(I) In the specific circumstances 
and context of this case, the plaintiff's 
striking every black juror to create a 
jury without blacks deprived Fleming of 
his right to due process under the Fifth 
and Fourteenth Amendments and to a jury 
trial under the Seventh Amendment.

94



VIRGINIA:

In the Supreme Court of Virginia 
held at the Supreme Court Building in the 
City of Richmond on Thursday the 7th day 
of June 1984.
James N. Fleming, Appellant,'

against Record No. 831446
Circuit Court No. 976-L

W. Bedford Moore, III, Appellee.
From the Circuit Court of Albemarle County

Upon the petition of James N.
Fleming an appeal is awarded him from a
judgment rendered by the Circuit Court of
Albemarle County on the 3rd day of June,
1983, in a certain proceeding then therein
depending, wherein W. Bedford Moore, III,
was plaintiff and the petitioner was
defendant.

And it appearing that an appeal bond 
in the penalty of $250,000, conditioned 
according to law, has heretofore been 
given in accordance with the provisions of

95



section 8.01-676 of the Code, additional 
bond is required in the amount of 
$460,000.

This appeal, however, is limited to 
the consideration of assignments of error 
D, E, G, and H which read as follows:

D The jury's award is so 
excessive that it indicates the jury was 
influenced by passion, prejudice or 
corruption, or misconceived or 
misconstrued the law or facts.

E The jury's award of prejudgment 
interest at the rate of 12% per annum is 
contrary to law because prejudgment 
interest is not allowable on punitive 
damages and, further, because 12% exceeds 
the maximum allowable rate of prejudgment 
interest.

G The trial court erred in 
refusing to instruct the jury that, in 
order to find Fleming liable for 
compensatory damages, it must find that



Fleming knew what he was publishing was 
false or had reckless disregard for 
whether or not it was true.

H The trial court erred in 
refusing to strike plaintiff's evidence on 
punitive damages because there was 
insufficient evidence on which the jury 
could conclude that Fleming knew what he 
was publishing was false or had reckless 
disregard for whether or not it was true.

On further consideration whereof, it 
is ordered that the parts of the record to 
be printed or reproduced in the appendix 
are to be limited to those parts of the 
record germane to assignments of error No. 
D, E, G and H, and the briefs to filed 
shall be limited to such discussion as is 
relevant to the assignments or error upon 
which this appeal is awarded.

This petition for appeal is refused 
as to the remaining assignments of error.

97



THE CODE OF VIRGINIA 
Second Edition

Including legislation to the year 
1860

Published pursuant to law 
* * *

815
■k k k

CHAPTER CC 
OFFENCES BY NEGROES

* * *
816 [TIT. 54,* * *

1847-8, p. 126,
§14 * * *

Id. § 6 11. A negro shall be punished
with stripes:

First, If he use: provoking
language or menacing gestures to a white 
person:

k  k k

817
*  *  *

12. Whenever, by statute, 
punishment with stripes is prescribed, the 
number of stripes shall be in the 
discretion of the court or justice by whom 
the offence is tried, so as not to exceed 
thirty-nine at one time.-



VIRGINIA: IN THE CIRCUIT COURT OF THE
CITY OF VIRGINIA BEACH
EDDIE UPCHURCH,

Complainant,
vs. No. CL 87-2930
AARON WHEELER
3206 Dunne Brook Court
Virginia Beach, VA 23456
AND

THE VIRGINIA CONFERENCE 
OF THE NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF 
COLORED PEOPLE 
SERVE ANY OFFICER:

112 East Clay Street 
Richmond, VA 23219

Defendants.

(MOTION FOR JUDGMENT 
[Filed December 23, 1987]

COMES NOW the Complainant, Eddie 
Upchurch, and respectfully alleges as 
follows:

1. Plaintiff is employed by the
City of Virginia Beach as a police 
officer, and was so employed on June 20, 
1987.

• On or about June 20, 1987,
99

2



while on duty, Officer Upchurch received a 
call from the Police Dispatcher to assist 
Officer Audrey Turner with the 
apprehension of three juveniles for curfew 
violation and shoplifting.

3. After the apprehension of the 
three juveniles at the intersection of 
Independence and Buchner in Virginia 
Beach, Officer Eddie Upchurch and Officer 
Turner attempted to release the three 
juveniles into the custody of one Fred T. 
Gilchrist, III.

4. During the release of the three 
juveniles to Fred T. Gilchrist, III, 
Maxine Gilchrist became disorderly and was 
placed under arrest b'y Officer Turner.

5. During Maxine Gilchrist's 
arrest, Fred T. Gilchrist, III assaulted 
Officer Turner on several occasions in an 
attempt to free Maxine Gilchrist from the 
arrest.

6. On or about June 20, 19 87, at

1-00



approximately 2:00 a.ra., Officer Eddie 
Upchurch attempted to arrest Fred T. 
Gilchrist, III for assault on a police 
officer and interfering with the duties of 
a police officer. During this arrest, 
Fred T. Gilchrist, III attempted to take 
Officer Eddie Upchurch's service revolver 
from him. A struggle ensued over the 
service revolver, and the service revolver 
was discharged one time, killing Fred T. 
Gilchrist, III.

7. As a' result of the shooting, 
the Virginia Beach Police Department's 
homicide squad, along with the Virginia 
Beach Police Department's internal affairs 
division and attorneys form the Virginia 
Beach Commonwealth Attorney's Office 
responded and initiated investigations 
into the shooting.

8. On or about June 24, 1987, 
Aaron Wheeler, Chairman of the Legal 
Redress Committee for the Virginia Beach

101
x r  -•••„ - ' V



Chapter of the National Association for 
the Advancement of Colored People called a 
press conference in which he characterized 
the shooting of Fred T. Gilchrist, III as 
"murder" and called for Officer Eddie 
Upchurch's and Officer Audrey Turner's 
termination from the Virginia Beach Police 
Department. At the time Aaron Wheeler 
made these statements, he had actual 
knowledge that the statements were false.

9. Prior to m a k i n g  these 
statements, Aaron Wheeler had had 
conversations with members of the Virginia 
Beach Police Department and Robert 
Humphries of the Virginia, Beach 
Commonwealth Attorney's Office. Both the 
Virginia Beach Police Department and the 
Commonwealth Attorney's Office had 
indicated to Mr. Wheeler that they were in 
the process of investigating the shooting 
and would share their■investigation with 
Aaron Wheeler and the NAACP. Therefore,

102



at the time Aaron Wheeler made these 
statements, he had actual knowledge that 
the investigations into the shooting had 
not been concluded, and his statements 
were made with reckless disregard of the 
probable falsity.

10. On or about July 3, 1987, after 
Commonwealth's Attorney Paul A. Sciortino 
cleared Officer Eddie Upchurch of any 
criminal wrong-doing in the shooting of 
Fred T. Gilchrist, III, Aaron Wheeler, as 
Chairman of the Legal Redress Committee 
for the National Association for the 
Advancement of Colored People, called a 
press conference and again accused Officer 
Eddie Upchurch of murder, insinuated that 
the shooting was racially motivated, and 
threatened the City of Virginia Beach that 
if they did not fire Officer Eddie 
Upchurch, that the black community would 
take action. At the time Aaron Wheeler 

statements about Officer

103
made these



Upchurch on July 3, 1987, he was aware 
that the Commonwealth's Attorney's Office 
had made a thorough investigation into the 
shooting and had determined that there was 
no criminal wrong-doing on the part of 
Officer Upchurch. Aaron Wheeler had 
actual knowledge that Officer Upchurch had 
not committed murder, and intentionally 
made these statements knowing them to be 

false.
11. on or about July 9, 1987, Garth 

Wheeler, President of the Fraternal Order 
of Police Lodge #8, called upon Aaron 
Wheeler to apologize for his verbal 
attacks on Officer Upchurch and to retract 
his statements. As a result of Garth 
Wheeler's request, Aaron Wheeler called a 
news conference in which he refused to 
retract his previous accusations and 
stated, "Hell will freeze over before I 
apologize over this incident for the 
shooting of that victim. People have

104



called this a black and white incident, 
and trying to keep race out of this is 
difficult."

12. On or about September 10, 1987, 
the Virginia Beach Police Department 
released the results of their 3 1/2 month 
investigation into the shooting of Fred T. 
Gilchrist, III by Officer Eddie Upchurch. 
Upchurch was cleared of any wrong-doing or 
violation of any departmental policies. 
As a result of this news release, Aaron 
Wheeler called another news conference in 
which he accused the Police Department of 
letting an injustice prevail and called 
upon the Mayor and the City Council to 
take another look at the incident and to 
dismiss the officer. Wheeler went on to 
indicate that if the Police Department 
refused to dismiss the officer, that the 
NAACP will take action on its own. At the 
time that Aaron Wheeler called this news 
conference, he had the results of three

... 105



different investigations which indicted 
that Officer Upchurch had done nothing 
criminally wrong and had not violated any 
departmental policies. Aaron Wheeler had 
actual knowledge that the statements he 
was making were false and the sole purpose 
was to slander Officer Upchurch and the 
Virginia Beach Police Department.

13. Aaron Wheeler made each of the 
foregoing statements to members of the 
local press, knowing or having reason to 
believe' that each statement would be 
printed 1 in the local newspapers or 
otherwise disseminated to the public.

14. On or about June 24, 1987, July
3, 1987, July 10,. 1987, August 16, 19 87,
and September 10, 1987, the malicious and 
defamatory statements made by the 
Defendant were published in The.Virginian- 
Pilot and Ledger Star’ newspapers and 
disseminated to the public.

15. At all times mentioned above

106



Aaron Wheeler was acting as Chairman of 
the Legal Redress Committee for the 
Virginia Beach Chapter of the State of 
Virginia and National Association for the 
Advancement of Colored People, herein 
before referred to as the NAACP.

16. The remarks made by the 
Defendant Aaron Wheeler were made with 
knowledge of their falsity and were made 
intentionally, maliciously and with the 
express intent to cause harm and damage to 
the Plaintiff.

17. At all times mentioned above, 
the NAACP was aware of the statements made 
by Wheeler, was aware of the results of 
the investigations which exonerated the 
Plaintiff yet did nothing to cause Wheeler 
to retract his said statements or set the 
record straight or offer any public or 
private apology to the Plaintiff. On the 
contrary, the NAACP approved and tacitly 
accepted as its own remarks, the

107



defamatory remarks made to the press by 
its representative, Aaron Wheeler.

18. As a direct result of the 
malicious defamatory statements that the 
Defendant made with actual knowledge of 
their falsity, the Plaintiff was deprived 
of income in the form of wages and other 
benefits. Plaintiff has also suffered 
damage to his reputation and standing in 
the community, embarrassment, humiliation 
and mental suffering.

WHEREFORE, Plaintiff respectfully 
prays this Court to award Plaintiff the 
following:

1. Compensatory damages from each 
Defendant, jointly and severally, for lost 
wages, benefits, damage to his reputation 
and standing in the community, 
embarrassment, humiliation and mental 
suffering, in the amount of $1,000,000.00.

2. Punitive damages from each 
Defendant, jointly and severally, for the

108



defamatory statements made intentionally, 
maliciously, and with the express intent 
to cause harm and damage to the Plaintiff, 
in the amount of $1,000,000.00.

3. Grant such additional relief as 
the Court deems proper.
Plaintiff requests a trial by jury.

EDDIE UPCHURCH

/s/ Kenneth W. Stolle____
KENNETH W. STOLLE
P. 0. Box 822
Virginia Beach, VA 23451

MOTION OF DEFENDANT 
VIRGINIA STATE CONFERENCE N.A.A.C.P.
________ FOR SUMMARY JUDGMENT________

[Filed June 8, 1988]
The defendant Virginia State 

Conference of the National Association for 
the Advancement of. Colored People moves 
the court to enter summary judgment for 
the defendants and to dismiss the 
plaintiff's action with prejudice.

109



The plaintiff's responses to the 
Request for Admission served on 21 March 
1988 and to the Interrogatory served on 21 
March 1988 establish that the sole bases 
for the plaintiff's action are his 
allegations:

(a) that Aaron Wheeler character­
ized as "murder" or as "senseless murder" 
the fatal shooting of Fred T. Gilchrist, 
III, by the plaintiff, Eddie Upchurch, and

(b) that Aaron Wheeler insinuated 
that the shooting was racially motivated.

In his answer to the request for 
admission (herewith filed), the plaintiff 
denies that these statements are the sole 
basis for the pending action. Yet, in 
response to the interrogatory (herewith 
filed) that he state what other basis 
there is for his action, the plaintiff 
says merely that the defendants made and 
continued to make numerous statements

110



characterizing the homicide as murder.
II

The alleged characterization of the 
fatal shooting of a citizen by a policeman 
as murder and the alleged disputation of 
the conclusion of the Commonwealth's 
Attorney that the homicide was an act of 
self defense and an accidental shooting 
are pure expressions of opinion not 
amounting to "fighting words" which, being 
privileged by the First Amendment to the 
Federal Constitution and by article 1, 
section 12 of the Constitution of Virgin­
ia, cannot form the basis of an action for 
defamation. As was said in Chaves v. 
Johnson. 230 Va. 112, 119, 335 S.E.2d 97, 
101-2 (1985) , "It is for the court, not
the jury, to determine as a matter of law 
whether an allegedly libellous statement 
is one of fact or one of opinion."

VIRGINIA STATE CONFERENCE OF 
THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED 
PEOPLE, Defendant

111



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

Norfolk Division
EDDIE UPCHURCH, :

Complainant, :
vs.
AARON WHEELER 
AND
THE VIRGINIA 
CONFERENCE OF THE 
NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT 
OF COLORED PEOPLE,

Defendants.

PETITION FOR REMOVAL
the Honorable Judges of the

States District Court for the
Eastern District of Virginia -

The petition of The Virginia State 
Conference of the National Association for 
the Advancement of Colored People 
(hereinafter "Conference") and of Aaron 
Wheeler (sometimes hereinafter "Wheeler") 
respectfully shows:

1. On or about 23 December 1987 an

C.A. NO. 88-0637-N

Filed:
Sept. 19, 1988

112



action .against petitioners for alleged 
defamation was commenced in the Circuit 
Court of the City of Virginia Beach, in 
the State of Virginia, entitled Eddie 
Upchurch, plaintiff, vs. Aaron Wheeler and 
the Virginia Conference of the National 
Association for the Advancement of Colored
People, defendants (At Law No. CL 87- 
2930). Photocopies of papers here 
material which have been filed or served, 
with identification as next shown, are
attached.

Exhibit #1 -

Exhibit #2 -

Exhibit #3 - 

Exhibit #4 -

Exhibit #5 -

Notice of Motion for 
Judgment - issued on 
6 January 1988
Motion for Bill of 
Particulars - served 
by Conference on 19 
January 1988
Bill of Particulars- 
served by plaintiff 
on 28 January 1988
Special Plea in Bar- 
filed by Conference 
on or about 9 
February 1988
Order [overruling 
P l e a  in B a r ] -

113



entered on____ March
1988

Exhibit #6 - R e q u e s t  f o r
Admissions - served 
by Conference on 21 
March 1988

Exhibit #7 - Answer to Request for 
Admissions - served 
by plaintiff on 13 
April 1988

Exhibit #8 - I n t e r r o g a t o r y -  
served by Conference 
on 21 March 1988

Exhibit #9 - A n s w e r  t o
I n t e r r o g a t o r y -  
served by plaintiff 
on 13 April 1988

Exhibit #10 - Motion of Summary 
Judgment - filed by 
Wheeler on or about 2 
April 1988

Exhibit #11 - Motion for Summary 
Judgment - filed by 
Conference on or 
about 7 June 1988

Exhibit #12 - Letter overruling 
Motions for Summary 
Judgment - dated 16 
August; mailed 17 
August; received by 
Wheeler's attorney on 
18 August; received 
by attorney for 
Conference on 19 
August 1988

Exhibit #13 - Sketch for order-
114



2

s u b m i t t e d ________
September 1988

The gravamen of the motion of 
judgment is that, as Chairman of the Legal 
Redress Committee of the Virginia Beach 
Branch of the National Association for the 
Advancement of Colored People, Wheeler in 
more than one press conference 
characterized as "murder" or as "senseless 
murder" the fatal shooting of a 24 year 
old black man by the plaintiff police 
officer (who is white) and insinuated that 
the shooting was racially motivated. The 
Conference is alleged to be vicariously 
liable for Wheeler's assertions. Wheeler 
is a black person..

3. Nowhere is there any suggestion 
that Aaron Wheeler was or ever claimed to 
have been or was believed to have been a 
witness to the homicide or to anything 
which led to the homicide. The Request 
for Admissions (Exhibit #6) , the Answer

115



thereto (Exhibit #7) the Interrogatory
(Exhibit #8) , the Answer thereto (Exhibit
#9) , and the newspaper articles submitted
with the Bill of Particulars (Exhibit #3),
which by reference are incorporated into
the Motion for Judgment (Exhibit #1),
establish the context in which Wheeler is
alleged to have characterized the fatal
shooting by the plaintiff police officer
as murder and to have insinuated that the
killing was racially motivated, e.g. :

"Upchurch [the instant plaintiff 
police officer] in his statement 
said he felt pressure on his gun, 
leading him to believe that 
Gilchrist was trying to take it.
" 'In an effort to prevent that from 
happening' Sciortino [attorney for 
the Commonwealth] said, Upchurch 
'grabbed his weapon and in the 
ensuing struggle he unintentionally 
discharged' the gun. The bullet 
struck Gilchrist in the chest. He 
fell to his knees and died.
"Other witnesses, including the 
three youths, Turner and Maxine 
Gilchrist, said Fred Gilchrist's 
hand was not on Upchurch's gun.
" 'No fingerprints other.than those 
of Officer Upchurch were found on

116



his weapon,' Sciortino said.
"The medical examiner’s findings 
'tend to corroborate’ witnesses' 
statements that the gun was 
'intentionally fired,' Sciortino 
said.
" 'In addition, the results of the 
gunshot residue test done on the 
victim's hand do not support the 
assertion that the victim had his 
hand on the officer's gun at the 
time it was discharged,' Sciortino 
said."

(Request for admissions - Item 4; 
Quotations from newspaper).

4. In his Motion for Summary
Judgment (Exhibit #10) the defendant
Wheeler asserted:

a. The alleged statements 
attributed to the. defendant as set 
forth in the motion for judgment 
constitute opinion, privileged under 
the First Amendment to the 
Constitution of the United States 
and Article I, Section 12 of the 
Constitution of Virginia.
b. The statements alleged to have 
been made by the defendant are not 
capable of defamatory meaning.
5. In its Motion for Summary 

Judgment (Exhibit #11), the Conference 

asserted:

117



i. The plaintiff's responses to 
the Request for Admission served on 
21 March 19 8 8 and to the 
Interrogatory served on 21 March 
1988 establish that the sole bases 
for the plaintiff's action are his 
allegations:

(a) that Aaron W h e e l e r  
characterized as "murder" or as 
"senseless murder" the fatal 
shooting of Fred T. Gilchrist, III 
by the plaintiff, Eddie Upchurch, 
and

(b) that Aaron W h e e l e r  
insinuated that the shooting was 
racially motivated.
ii. The alleged characterization of 
the fatal shooting of a citizen by a 
policeman as murder and the alleged 
disputation of the conclusion of the 
Commonwealth's Attorney that the 
homicide was an act of self defense 
and an accidental shooting are pure 
expressions of opinion not amounting 
to "fighting words" which, being 
privileged by the First Amendment to 
the Federal Constitution and by 
article 1/ section 12 of the 
Constitution of Virginia, cannot 
form the basis of an action for 
defamation.
6. Essentially the same position 

had been asserted by the conference in its 
Special Plea in Bar; the evidentiary bases 
for which were the Motion for Judgment 
(Exhibit #1), the Motion for Bill of

118



Particulars (Exhibit #2), the Bill of 
Particulars (Exhibit #3), and the' failure 
of the plaintiff to respond to the express 
requests for reply to new matter alleged 
in the Special Plea in Bar (Exhibit #4) 
as, by Rule 3 1 12 of the Rules of the 
Supreme Court of Virginia, the plaintiff 
was directed to do. The Honorable John K. 
Moore, Judge, who heard argument on the 
Special Plea in Bar and denied same, was 
not persuaded that the new matters stated 
in the Special Plea in Bar stood as 
admitted by the failure of the plaintiff 
to respond thereto.

7. By letter dated 16 August 1988, 
mailed on 17 August, received by Wheeler's 
attorney on 18 August by the Attorney for 
the Conference on 19 August 1988, the 
Honorable H. Calvin .Spain, Judge, who on 9 
August 1988 had heard the arguments of 
counsel, ruled that the Motions for 
Summary Judgment were "untimely" and for

119



such reason would be denied.
8. The above described litigation 

is a civil action which may be removed to 
this court by the petitioners, defendants 
therein, pursuant to the provisions of 
Title 28, United States Code, Section 
1443, in that, solely by reason of race 
and color, and in violation of Title 42, 
United States Code, Section 1981, 
petitioners are denied and cannot enforce 
in the courts of the State'of Virginia the 
right, under Article 1, Section 12 of the 
Constitution of Virginia, as construed in 
Chaves v. Johnson 230 Va. 112, 119, 335
S.E. 2d 97 101-2 (1985), "to teach,
preach, write, or speak any [pure 
expression of] opinion, however ill- 
founded, without inhibition by actions for 
libel and slander", and the concomitant 
right to have the court, in advance of 
trial, "determine as a matter of law 
whether [the] allegedly libelous

120



statements are assertions] of fact or
[expressions] of opinion". (id.).

9. Notwithstanding the Thirteenth
Amendment to the Constitution of the
United States and Section 1981 of Title 42
of the United States Code, the Courts of
Virginia and, particularly, the highest
court of the State of Virginia tolerate
the lingering viability of the 1847-48 Act
of the General Assembly of Virginia,
concerning Offenses By Negroes wherein,
inter alia. it was ordained:

"A negro shall by punished with 
stripes: First, if he use provoking 
language or menacing gestures to a 
white person."

Here, the failure of the court to rule 
whether Wheeler's assertions were fact or 
opinion subjects the petitioners to the 
onus of preparation and trial, and to the 
risk of an adverse verdict and judgment, 
for having mad pure expression of 
opinion, such as white citizens may freely 
make without inhibition by actions for

121
-rrr.*mrm. ;.W  . g&tHfV:



libel and slander.
10. In Fleming v. Moore. 221 Va.

884, 275 S.E. 2d 632 (1981) f Fleming I)
the Supreme Court of Virginia upheld the 
trial judge's denial of constitutional 
privilege to a black defendant's pure 
expression of opinion as to what was and 
what was not wanted by the white plaintiff 
who, for fourteen months, had actively 
opposed the defendant's applications for 
re-zoning to permit housing for people of 
low and moderate income. The only 
justification offered by the appellate 
court for such holding was: "Since Fleming 
is not a media defendant and Moore is not 
a public figure, Gertz [v. Robert Welch,
Inc., 418 U.S. 323 (1974)] does not

control the present case." (221 Va . at

893, 275 S.E. 2d at 638).
11. Because the trial court had

erroneously instructed the jury that
Fleming's expression of opinion was libel

122



per se. the Supreme Court of Virginia 
reversed. Noting, however, that under 
long established precedent Moore's failure 
to allege or prove monetary loss would bar 
recovery, the Supreme Court of Virginia 
"modified" its earlier holdings that 
emotional upset and embarrassment cannot 
constitute "special damages" (221 Va. at 
894; 275 S.E. 2d at 639) .

12. In allowing a second appeal,
Fleming v. Moore, sub nom, The Gazette v. 
Harris 229 Va. 1, 325 S.E. 2d 713 (1985)
(Fleming II), the Supreme Court of 
Virginia, without any stated reason then 
given summarily rejected the assignments 
of error which presented questions of 
constitutional privilege. In deciding the 
second appeal it arbitrarily adhered to 
its earlier disposition of such questions. 
(229 Va. at 46).

13. In light of the jury awards 
which, by reason of their excessiveness,

123



the court characterized as being "not the
product of a fair and impartial decision" 
and "on its face indicat[ive of] prejudice 
or partiality", the Supreme Court of 
Virginia remanded in Fleming II for 
"substantial" remittitur or, at the option 
of the plaintiff, a new trial limited to 
the assessment of damages. The 1847-48 
legislation on the subject of Offenses By 
Negroes limited the severity of punishment 
to thirty-nine (39) stripes at any one 

time.
14. Neither of the litigants in 

Chaves v. Johnson, supra, was black; and 
neither was either of the litigants in 
Great Coastal Express, Inc., v. Ellington 
230 Va. 142, 334 S.E. 2d 846 (1985). Both 
cases were decided on September 15, 1986. 
In Great Coastal the court, without so 
saying, repudiated the tortured reasoning 
of its penultimate paragraph of Fleming I 
which had given the second jury license to

‘ 124



punish Fleming for expressing his opinion 
and thereby provoking a white person.

15. By petitions for rehearing, 
timely filed following the denial of his 
third petition for appeal, Fleming asked 
the Supreme Court of Virginia to conform 
the final judgment in his case to the 
constitutional principles which then 
recently had been set forth in Chaves. 
Except for the difference in the race of 
the defendants, Fleming's case is 
i n d i s t i n g u i s h a b l e  from C h a v e s . 
Nevertheless, Fleming's 1985 petition for 
rehearing was denied.

16. But for such lingering 
viability of the 1847-48 legislation 
hereinabove mentioned, it is unlikely that 
the subject defamation action would have 
been brought? and it is certain that, if 
brought, it would have been summarily 
dismissed upon motion therefor and a 
showing that the action is predicated upon

125



a pure expression of opinion, not 
amounting to fighting words.

17. On 15 September 1988 the 
instant petitioners filed with the Supreme 
Court of Virginia their petition for a 
stay of the proceedings in the defamation 
action which is scheduled for trial on 21 
September 1988 and for a writ of mandamus 
ordering the circuit judge to whom the 
action is or will be assigned to make a 
determination and, in advance of trial, to 
rule as a matter of law whether the 
alleged utterances of Aaron Wheeler were 
statements of fact or expressions of 
opinion.

18. The thirteenth day after 
receipt by the defendants of the letter 
opinion of the Honorable H. Calvin Spain 
having been on Saturday, 17 September, or 
Sunday, 18 September, the petitioners are 
advised that this . petition may not be 
filed later than this 19th day of

126



September, 1988.
Wherefore, petitioners pray that the 

above action now pending against them in 
the Circuit Court of the City of Virginia 
Beach be removed therefrom to this court.

THE VIRGINIA STATE CONFERENCE 
OF NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, 

Petitioner
By: /s/ S. W. Tucker_________ ,

„ Its Attorney
AARON WHEELER, Petitioner
By: /s/ Sa-ad El'Amin_________,

His attorney

[Verification Omitted]

127