5 N.Y.2d 585 (1959)

E. Leonard Cheatum, Respondent, v. Louis A. Wehle, Appellant.

Court of Appeals of the State of New York.

Decided April 17, 1959.

Attorney(s) appearing for the Case

George R. Fearon and Vincent A. O'Neil for appellant.

John W. Tabner, Joseph Rosch and Nathan M. Medwin for respondent.

Judge DESMOND concurs with Judge DYE; Judge VAN VOORHIS concurs in part in a separate opinion but votes to sustain the first affirmative defense of fair comment (designated in answer as "II"), with which Chief Judge CONWAY and Judges FULD and FROESSEL agree; and to sustain the second affirmative defense of qualified privilege (designated in answer as "III") as a complete defense, with which Judge BURKE agrees; and to sustain the third affirmative defense (designated in answer as "IV") as a partial defense in mitigation insofar as it reiterates paragraphs 1 through 23, with which Chief Judge CONWAY and Judges FULD and FROESSEL agree.


This is an action for slander. The parties are well-known public figures. The plaintiff, Dr. E. Leonard Cheatum, is a nationally recognized authority on wild life and conservation. He has made it his life career, serving in course of time as a teacher, writer and organizer, and has held public positions in that field in the conservation departments of the United States in several States of the Union and at the time in question was and for some time prior thereto had been a civil service employee in the New York State Conservation Department.

The defendant, Louis A. Wehle, a successful business man, has interested himself in wild life conservation. It has been for him an absorbing hobby, leading to the operation of a licensed game farm in connection with his extensive land holdings and the sponsorship of the widely advertised and popular "Louis A. Wehle Fishing Contest" and "Louis A. Wehle Conservation Contest", which carry with them substantial cash prizes for winners in various and assorted categories of fishing and hunting. In this connection, he also published and widely distributed complimentary copies of a booklet known as the "New York State Fishing Guide", its authorship being credited to him as chairman of the board of the Genesee Brewing Company.

On January 1, 1955 Governor Harriman appointed Mr. Wehle to his official family as the State Conservation Commissioner. He qualified and assumed the duties of that office. At that time, Dr. Cheatum was Chief of the Bureau of Game, Division of Fish and Game, in the State Conservation Department and, as such, was directly under the supervision of and responsible to the commissioner.

On or about May 31, 1956 Commissioner Wehle was the guest of honor at a dinner held at the Hotel Woodruff, Watertown, New York, which was attended by over 150 other persons, including a number of local sportsmen, civic and business leaders, members of the press and sports writers. Commissioner Wehle made a speech on the general subject: "What's Wrong With The Conservation Department", in the course of which he allegedly said in part:

"At Albany I found a secret society or fraternity among the employees. They stood around in groups in the corridors, whispering among themselves and looking at me out of the corners of their eyes. They were out to oppose anything I favored. "My Grenadier Island project for toughening pheasants under semi-wild conditions was torpedoed by that bunch. "Twenty thousand birds were put on the island. All but five thousand died of botulism, a food poisoning. The reason they died was because the head of my game bureau, E. L. Cheatum, sent some five thousand birds there from the Delmar Game Farm. These birds were half dead from botulism when they were shipped. It was like taking kids with measles and putting them in a room with healthy kids. The rest contracted the disease as anyone might expect they would. "Cheatum was advised against sending these birds but he paid no heed. It was either deliberate sabotage or gross neglect on his part. It sunk the experiment. The State could well do without the services of such employees. What the Department needs is a good overhauling and that is what I plan to do right away — starting with Cheatum."

The plaintiff alleges in his complaint that the quoted words were uttered willfully, falsely and maliciously, with the intent to injure him and his good name and reputation and to destroy his usefulness in the field of conservation and demands damages in the sum of $200,000.

By his answer, the defendant-appellant denied generally all of the material allegations of the complaint and interposed a series of defenses which fall generally in the category of "fair comment", "immunity from suit based on official privilege" and by way of explanation and clarification of the language used as intending to mean something different from that attributed to it by the plaintiff.

Following joinder of issue, the plaintiff moved to strike the five separate defenses contained in the defendant's answer on the ground of legal insufficiency. The defendant cross-moved to dismiss the complaint for failure to state a cause of action (Rules Civ. Prac., rule 109). The Special Term granted plaintiff's motion in part and denied defendant's cross motion in its entirety.

On cross appeals to the Appellate Division, Third Department, that court unanimously modified, on the law, the order of Special Term by striking out the first defense (designated "II") as a complete defense and permitted it to remain as a partial defense only and by striking out the third affirmative defense (designated "IV") and, as so modified, otherwise affirmed. Thereafter, the Appellate Division denied the defendant-appellant's motion for reargument and granted his motion for leave to appeal to this court on four certified questions. We are satisfied that the complaint states a cause of action.

The defendant-appellant, by his first defense (designated "II"), contends that the complained of statements which related in any way to the plaintiff were made without malice and in good faith; that the Grenadier Island project was a matter of grave public interest and concern to the taxpayers and inhabitants of the State and that it was not only his right but his duty as Commissioner of the Department of Conservation to report upon and discuss the policies, personnel, projects and general operation of the department so that the public might be kept fully informed and advised regarding its conduct and administration; in other words, that the utterance, although derogatory and defamatory in nature, in light of the background and circumstances of its making, was a fully justified expression of opinion and fair comment.

While the activities of a person holding public office may properly be criticized, whenever such criticism is of a derogatory or defamatory nature, the defense of fair comment is not available to one who makes false and untrue statements or unjustifiable inferences (Toomey v. Farley, 2 N.Y.2d 71). Such protection, as we have said, "extends to a fair and honest statement of actual facts relating to public acts and to reasonable and justifiable comment thereon and criticism thereof. It does not extend to attacks upon private character or to publishing defamatory things about an official even if the writer in good faith makes the publication believing his statements are true; neither does it permit a person to draw conclusions that are or that the jury may find are improper and unjustifiable" (Bingham v. Gaynor, 203 N.Y. 27, 33).

Here it is not claimed that the opinion expressed — and it may be deemed an opinion because of its derogatory nature — is based on truth. In fact, a careful reading of the pleadings indicates that the defendant-appellant denied he uttered the complained of statement and at the same time he failed to allege what in fact he did say or that what in fact he said was true or that his comments were based on facts believed to be true. His defense depends on a conclusory allegation based on his own estimate of the situation and may not serve as a substitute for facts (Julian v. American Business Consultants, 2 N.Y.2d 1). The defendant charged the plaintiff with "either deliberate sabotage or gross neglect", but nowhere does he plead the truth of the statement or that it is based on facts believed to be true. To that extent at least the privilege attending fair comment is insufficient to constitute a complete defense. However that may be, the first alleged complete defense (designated "II") should not be stricken in its entirety, but should be allowed to stand so as to permit the defendant to prove "mitigating circumstances, including the sources of his information and the grounds for his belief, notwithstanding that he has pleaded or attempted to prove a justification" (Civ. Prac. Act, § 338; Crane v. New York World Tel. Corp., 308 N.Y. 470).

Under Federal decisions, it has long been held that an executive official is absolutely privileged to publish false and defamatory matter of another in the exercise of his executive function if the matter has some relation to the executive proceeding in which the official is acting (3 Restatement, Torts, § 591). The policy underlying such official privilege was succinctly enunciated by HARLAN, J., viz.: "In exercising the function of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint." (Spalding v. Vilas, 161 U.S. 483, 498.) This privilege protects a judicial officer in respect to acts done in the course of his judicial duties (Bradley v. Fisher, 13 Wall. [80 U. S.] 335) and has been applied to alleged libelous publications by a department head (Spalding v. Vilas, supra) and reiterated in Glass v. Ickes (117 F.2d 273, cert. denied 311 U.S. 718), Joint Anti-Fascist Refugee Comm. v. Clark (177 F.2d 79, revd. 342 U.S. 123). The doctrine of immunity based on official privilege is recognized in this State, being based upon "consideration of public policy and to secure the unembarrassed and efficient administration of justice and public affairs" (Hemmens v. Nelson, 138 N.Y. 517, 523), and has been held to include "official reports and communications by or to the executive head of a department of the government" (Hyman v. Press Pub. Co., 199 App. Div. 609, 611). The desirability of such a policy is easily recognized as essential in the conduct of official business. For instance, section 164 of the Executive Law requires each department head to make an annual report to the Governor and to the Legislature. It is quite important that the executive so reporting should be free to make such report without fear of reprisal by civil suit for damages. Such an official report is based on facts and figures which become a public document on a matter of public concern upon which the Governor and the Legislature may rely in proposing budgets and adopting ameliorative legislation. The Commissioner of Conservation annually makes such a report. We are told that for the calendar year 1955, the commissioner made a full report on the Grenadier Island project and also on the outbreak of botulism at Delmar, with credit being given for the discovery of a new technique to impede the disease by innoculation. In The Conservationist, an official magazine published by the Conservation Department during the same period, no mention was made of either the Grenadier Island experiment or the botulism outbreak at Delmar. In none of these official documents was any mention made of the matter elaborated upon in the complained of utterance.

The rationale underlying the absolute privilege accorded official reports made in due course is not to be confused with comments made in the course of an after-dinner speech to a group of citizens who can do nothing about it in any event. To extend the absolute privilege to such activities would lead to all sorts of abuses and do great harm to individual victims without improving the service of government. This case falls within that general condemnation, since Commissioner Wehle had at hand a ready, effective, orderly and legal means of dealing with Dr. Cheatum, such, for instance, as the filing of charges and giving him an opportunity to be heard. The speech made by Commissioner Wehle, as the Appellate Division observed, was not greatly different from a speech of a member of the Legislature speaking to his constituents, explaining his votes or berating some of his colleagues which enjoys no privilege outside the legislative halls. The succinct comment of the learned court below is worth quoting: "No legal or moral duty was fulfilled by the defendant in advising private citizens that plaintiff was guilty of negligence or deliberate sabotage, because the audience could do nothing about it in any event, and hence there was no qualified privilege (Bingham v. Gaynor, 203 N.Y. 27)." Whether such privilege existed is a question of law under the circumstances (Ashcroft v. Hammond, 197 N.Y. 488; 3 Restatement, Torts, § 619).

The third defense (designated as "IV") realleges the same allegation theretofore made (without repeating) for its first defense (designated as "II") and second defense (designated as "III") as a partial defense in mitigation of damages. Since, in the decision about to be made, the first defense (designated as "II") is being allowed as a complete defense insofar as it is based on fair comment, there is no need to repeat such allegations; likewise, since the allegations in the second defense (designated as "III") are deemed insufficient because the defense of absolute privilege is not available, they cannot stand as a partial defense for, in any event, the defendant has no immunity apart from his office. So viewed, a reallegation of the same matters based on the defense of absolute privilege has no place in the pleadings as a partial defense and was properly stricken in the court below for, quite obviously, its retention as a partial defense under such circumstances would be prejudicial to a fair trial.

Nothing more remains except a brief word as to the fourth defense (designated as "V") which was an attempted clarification and explanation of the language used while the fifth defense (designated as "VI") was a general denial that the reference to the secret society or fraternity among the employees had reference to Dr. Cheatum. The Appellate Division quite properly allowed the fourth defense to stand as relevant to the issue of punitive damage should that aspect be reached. In respect to the last partial defense, the Appellate Division succinctly disposed of it in the following comment: "The plaintiff has the burden of proving that the statements were reasonably understood by listeners in the sense that would make them defamatory (Restatement, Torts, § 613). It is immaterial what the defendant intended: the test is what his audience reasonably understood him to mean (Restatement, Torts, § 580; Linehan v. Nelson, 197 N.Y. 482)".

This partial defense was stricken, and properly so, since the defendant may prove under his general denial that he did not use the words which the complaint attributes to him.

The order appealed from should be affirmed, without costs, and each of the four certified questions answered in the affirmative.

VAN VOORHIS, J. (concurring in part).

The present appeal concerns only questions of pleading. The merits of the controversy are not before us for decision. The error in the order appealed from, in my judgment, consists in striking out the defenses of fair comment and of qualified privilege. Unless these defenses are allowed to stand, it is presumed that the words were false, uttered in malice and that plaintiff has been damaged (Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58; Byam v. Collins, 111 N.Y. 143, 158; Hunt v. Bennett, 19 N.Y. 173, 176; Devoy v. Irish World & Amer. Ind. Liberator Co., 208 App. Div. 319). If defendant's statement is protected by qualified privilege, however, malice is not presumed in aid of the plaintiff's case but must be proved as an actual fact as well as that the statement is false (Ashcroft v. Hammond, 197 N.Y. 488). If the jury were to find that the statement was not made maliciously, that would end the case under that defense. If the statement was fair comment upon facts truly stated, that would also be a complete defense to the action, and would not operate merely in mitigation as the order now provides. Mitigation formerly signified nothing except that it might reduce or avoid punitive damages (Bergmann v. Jones, 94 N.Y. 51; Abell v. Cornwall Ind. Corp., 241 N.Y. 327). Since Fleckenstein v. Friedman (266 N.Y. 19) it may relate to compensatory damage, but mitigation remains far removed from being a complete defense.

The first affirmative defense in the answer (designated "II") was held to be insufficient to allege a defense in fair comment, on the basis that its allegations do not tend to plead the truth of the assertion that plaintiff was guilty of "deliberate sabotage or gross neglect". This is the one slanderous charge in the speech. On it depends the plaintiff's cause of action. In analyzing the issues, the first point to determine is whether these five words are the expression of an opinion by Mr. Wehle or the statement of a fact. If asserted as a fact, the appropriate defense is called "justification." If put forward as an opinion, the appropriate defense is known as "fair comment." Although Judge DYE at one point calls these words of defendant an opinion, the defense is held insufficient as pleaded in the answer for the reason that the words are not alleged to be true as a fact. This confuses the defense of fair comment with a defense of justification. Justification may be pleaded where the defamation consists in the assertion of derogatory facts, such as that a woman is unchaste or that a person has committed a crime. The defense of truth, in such instance, consists in alleging that those facts are true. In the present case the defamatory charge against plaintiff does not consist in the facts themselves which defendant avers to be true, but in the conclusion or opinion about plaintiff which defendant has drawn from those facts. In other words, the slanderous nature of what he is quoted as having said consists in comment about plaintiff which defendant made on the basis of facts which he claims to be true. In such case the conventional defense is fair comment not justification. In pleading justification, to be sure, all of the derogatory facts in the charge must be alleged to be true. The justification must be as broad as the charge (White v. Barry, 288 N.Y. 37). But where, as here, the defamation consists not in the facts themselves but in comment based on them, it is enough that the facts are alleged to be true and that the comment is alleged to have been warranted by those facts and to have been made in good faith. Judge DYE's opinion states that the defense of fair comment is defective in this answer for the reason that it does not "plead the truth of the statement" that plaintiff is chargeable with "sabotage or gross neglect". The reply to that is that in pleading the defense of fair comment it is not necessary or customary to plead the truth of the adverse comment or opinion which a defendant has expressed concerning a plaintiff, but to allege that the facts on which the comment is based are true and that the comment is a conclusion reasonably drawn from those facts, made in good faith, without malice, and honestly believed by defendant to be correct. All of these matters are contained in defendant Wehle's answer, which is ample to entitle him to have these questions presented to a jury.

The facts underlying this comment of sabotage or gross neglect, which defendant claims to be true, are, both as stated in the speech and as alleged in the answer, that in violation of instructions from his superior, plaintiff shipped a large number of pheasants infected with botulism to the Grenadier Island game project, either knowing that they were infected or without using reasonable care to discover that they were healthy. If plaintiff knew that these pheasants were infected with this highly communicable disease and deliberately placed them with the healthy pheasants in the project area, the answer alleges that it was fair comment for defendant to have drawn and expressed the conclusion that plaintiff intentionally sabotaged the project. If plaintiff did not know that the pheasants which he shipped were diseased, but transferred them to the project area against defendant's orders without taking the trouble to find out, then the answer alleges that he should have known that they were diseased in the exercise of his duties as supervisor of the project and that his failure to ascertain the fact and his shipment of the pheasants against defendant's instructions warranted the comment of gross neglect.

It is consequently erroneous, in my view, to hold that the answer is defective in not alleging the truth of the opinion that plaintiff is chargeable with sabotage or gross neglect. That is not fact but comment, as Judge DYE's opinion recognizes. The facts on which the comment is based are alleged to be true, and the comment is alleged to have been warranted by the facts stated and to have been made honestly and without malice.

That is the test of fair comment under the authorities, the leading ones being Foley v. Press Pub. Co. (226 App. Div. 535); Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers (260 N.Y. 106); Hoeppner v. Dunkirk Print. Co. (254 N.Y. 95).

If established at the trial, it is a complete defense to the action. The defense meets this test as it is pleaded in the answer. If evidence is introduced at the trial to support these allegations, the law requires that it be left to the jury to determine whether the facts underlying the comment were true, and whether the conclusion publicly drawn from them by defendant was fair comment or malicious slander. The usual rule applies that it is for the jury to decide whether the defense of fair comment has been established (Seelman, Law of Libel, § 246, and cases cited). The criticism of plaintiff by defendant concerned the administration of the Conservation Department. It involved public affairs, regarding which "the high, the low, the rich, the poor, the weak, the powerful, the ignorant, the learned, the friend, the foe have equal right to express their opinions" (Seelman, Law of Libel, § 235). Seelman reasons beyond Foley v. Press Pub. Co. (supra) and Briarcliff Lodge Hotel Co. v. Citizen-Sentinel Publishers (supra) that comment should not be actionable if it is warranted by the facts even where the commentator is inspired by malice, but we are not confronted with that problem since the answer affirmatively alleges that this comment was made by defendant without malice and as an expression of his honest opinion.

The other defense in the answer which seems to me to have been erroneously stricken relates to privilege. Fair comment is a right open to all and is based upon the truth of the facts underlying the comment. Privilege depends upon occasions or relationships and protects a defendant even though the facts underlying the defamatory material turn out to be false. The defense of privilege in this answer, in my opinion, is not so clearly sufficient in law as the defense of fair comment. I agree with the majority that the absolute privilege is absent which would protect an official report or a speech on the floor of the Legislature or of Congress. Nevertheless a wise public policy would direct that a public officer, reporting to the public or to his constituents concerning the administration of the public business of the State, should be accorded qualified privilege. In many relationships the courts have found a qualified privilege the effect of which is to do away with the implied malice flowing from defamatory statements, and to require proof of actual malice and of falsehood in order to establish the cause of action. In the absence of a relationship entailing qualified privilege, it is, of course, sufficient for a plaintiff to show that defamatory words were spoken of and concerning him. If the libel or slander is per se, the law presumes malice, falsity and damages (Corrigan v. Bobbs-Merrill Co., supra; Byam v. Collins, supra). In cases of qualified privilege, however, malice and falsity are not presumed but must be proved (Ashcroft v. Hammond, supra).

In his answer Mr. Wehle pleaded that he is head of the Department of Conservation of the State of New York, the responsibility for the activities of which rested upon him; that the speech which he made at the Hotel Woodruff, alleged in the sixth paragraph of the amended complaint, was an oral report of the activities of the Conservation Department to a group of sportsmen and others having a special interest in conservation, and that it included a report respecting the so-called Grenadier Island project. Qualified privilege has been held to extend to communications to district attorneys; by credit agencies to prospective creditors; the report of a title searching company to its applicant; by the director of an institution to its executive committee; reports to employees regarding the motives and way of life of labor leaders conducting an organizational campaign; to a bishop about the clergy; reports of subordinates to superiors; to addressees of telegrams by a telegraph company; to prospective employers in giving references concerning the merits or demerits of employees; letters from a society to its members; communications between stockholders; by a bank to its correspondent; to a Governor on an application for pardon, and to the Secretary of the Treasury about the removal of a customs officer (Washburn v. Cooke, 3 Denio 110; Ormsby v. Douglass, 37 N.Y. 477; Hemmens v. Nelson, 138 N.Y. 517; Ashcroft v. Hammond, 197 N.Y. 488, supra; Pecue v. West, 233 N.Y. 316; Andrews v. Gardiner, 224 N.Y. 440; Ajello v. Title Guar. & Trust Co., 249 N.Y. 548; Pendleton v. Hawkins, 11 App. Div. 602; Browne v. Prudden-Winslow Co., 195 App. Div. 419; Leganowicz v. Rone, 240 App. Div. 731; Klein v. Western Union Tel. Co., 257 App. Div. 336; Meyers v. Huschle Bros., 274 App. Div. 80; Seelman, Law of Libel, §§ 257-265; Law of Slander, § 35). In these and many other instances it is not enough to sustain the cause of action that the statements are defamatory. "If the defendant made the statements in good faith, believing them to be true, he will be protected, even if a man of wider reasoning powers or greater skill in sifting evidence would have hesitated. * * * So if he fairly and in good faith relies on hearsay * * * which often may reasonably induce action or belief." (Pecue v. West, 233 N.Y. 316, 322, supra.)

From these diversified relationships to which qualified privilege has been attached, it is plain that it is not limited to official reports by public officers. It is said that under Bingham v. Gaynor (203 N.Y. 27, 32) qualified privilege does not apply to statements made by public officers to the public. That case is not authority for such a sweeping rule. What was decided there was simply that a letter to the Mayor of New York City containing libelous matter about a public officer or employee lost its privilege by being given first to the newspapers.

One does not need to go all the way of Glass v. Ickes (117 F.2d 273, 277, cert. denied 311 U.S. 718) where the Federal Court of Appeals held that a press release by Secretary Ickes was protected by absolute privilege, in which he sought to forestall contributions to an oil lobbying fund. The opinion by Judge, afterwards Chief Justice, VINSON, said: "Some contention is made by the appellant that this privilege applies only to communications between governmental officials, and not to those from an official to the general public. No such limitation is justified by the language of the Supreme Court in the Vilas [Spalding v. Vilas, 161 U.S. 483] case, nor has this court recognized such a distinction. On the contrary, we have previously held a communication, released generally to the press, within this executive privilege."

The Supreme Court of Pennsylvania held to similar effect in Matson v. Margiotti (371 Pa. 188 [1952]) where the State Attorney General had written a letter to a District Attorney advising him that one of his assistants had communist affiliations, which was released to the press.

It seems that unless qualified privilege is extended to the utterances of public officers whose duty it is to keep the public informed about the operation of their departments, informing the public will become difficult and dangerous concerning governmental affairs in which the people are and ought to be concerned. It is enough, in such situations, if a plaintiff may recover in a slander or libel suit on proving actual malice and falsehood, without their being presumed in his favor.

The circumstance that the answer contains a denial that the statement attributed to defendant in the complaint was made, does not preclude him from pleading the affirmative defenses of fair comment and qualified privilege. Section 262 of the Civil Practice Act allows a defendant to set forth in his answer as many defenses as he has, and this is construed to permit inconsistent defenses to be alleged (Carter, Macy Co. v. Matthews, 220 App. Div. 679; Societa Italiana v. Sulzer, 138 N.Y. 468). Even before this section of the Civil Practice Act read in the Code as it does now, the courts perceived the injustice of preventing a defendant in a libel or slander suit from taking advantage of affirmative defenses unless he conceded that he used the same words which are charged against him in the complaint (Kingsley v. Kingsley, 79 Hun 569; Buhler v. Wentworth, 17 Barb. 649, 9 How. Pr. 282; Stiles v. Comstock, 9 How. Pr. 48; Ormsby v. Douglas, 5 Duer 665; Hamer v. McFarlin, 4 Denio 509. This is the prevailing rule in other States also, as appears from the annotation at 21 A. L. R. 2d 813.)

The order appealed from should be modified so as to sustain the first affirmative defense as a complete defense, and to sustain the second defense as a complete defense of qualified privilege and the third defense as a partial defense; and, as so modified, the order appealed from should be affirmed, with costs to appellant to abide the event. The first question certified should be answered in the affirmative, and the other three questions should be answered in the negative.

Order modified to the extent of sustaining the first affirmative defense of fair comment (designated in answer as "II") as a complete defense, and the third affirmative defense (designated in answer as "IV") as a partial defense in mitigation insofar as it reiterates paragraphs 1 through 23 of the answer, and, except as so modified, affirmed, without costs. Questions certified Nos. 1 and 3 answered in the affirmative; question certified No. 2 answered in the negative; question certified No. 4 answered in the negative as to allegations of the answer 1 through 23, and in the affirmative as to allegations 24 through 27.


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