She don't need no stinking witnesses


I've seen judges bang their gavels. I've heard judges issue Solomonic rulings. I've heard judges bark withering rebukes.

But I've never before heard of a judge waving her magic wand and instantly turning a defendant into a libeler.

Ipso facto, libel per se, presto-chango, poof, you're a libeler. Justice shoots from her magic gavel like lightning bolts from Thor's hammer. Like pulling a joey out of her pouch. Let there be libel, and there was libel.

As Justice Potter Stewart knew obscenity when he saw it, Clark County District Judge Sally Loehrer knows libel when she sees it -- without any need to rely on outmoded and messy trappings such as the law, evidence, witnesses, juries or legal precedents as required by mere mortal judges unable to leap to monumental conclusions in a single bound or to stop a speedy trial with their bare hands.

It was supposed to be a hearing on a motion by judicial candidate David Rivers. He was asking that the sparsely distributed downtown weekly newspaper the Las Vegas Tribune be temporarily restrained from writing anything further about him while his defamation case against the paper moved forward.

Instead, it suddenly turned into a summary judgment from the bench by Judge Loehrer.

Rivers had sued the newspaper over a March 12 article that reported he hit one of his ex-wives, once had a drinking problem, failed to pay child support and had changed his name from Rios to Rivers to be more Americanized. The story cited various court documents as its source.

In a rambling rant from the bench that had all the linear logic of a darting water bug, Judge Loehrer stated in the March 28 hearing, "The court finds as a matter of law Mr. Rivers does not presently drink."

(Full transcript: PDF or reviewjournal.com/webextras/.)

She then proceeded to tick off and dismiss out of hand various aspects of the newspaper's account as false, saying the paper's attorney had presented no evidence to support the claims. Never mind that this was not a trial but merely a hearing on a motion, nor that the law of libel does not require the defendant to prove truth, but for the plaintiff to prove falsity.

In a bizarre bench lecture, she called the allegation of name changing "nothing more than an attempt to defame a man who's running for political office and to, by innuendo, make people think that his heritage is other than American. ..."

"We all have to recognize that in today's social climate -- social and economic climate with one of the nation's largest issues being immigration and illegal immigration and huge Hispanic population ..." the judge ruled, "there can be no dispute about the intent. ... I find it to be false and I find it to be defamatory." (Saying someone is Hispanic is libel?)

Loehrer completely ignored multiple aspects of libel case law.

Not the least of which are the requirements that the allegedly libelous material be disseminated and that it is damaging. Was there a single person who testified he had read the lightly regarded publication and now thinks less of Rivers because of it?

As for falsity, Rivers admitted he once drank and he had once slapped one of his wives. But the judge parsed the language with a dismissive: "I find that the article (actually the headline) presented things 'drinks' and 'lies' in present tense, and there is no evidence to support either of those allegations."

Loehrer in her full blown omniscience did not even bother to address the long-established requirement that public figures, such as someone running for judge, have the additional burden of showing allegations are not only false but were printed with actual malice or with reckless disregard for truth.

She should have some vague knowledge of this since she was overturned by the Nevada Supreme Court for failing to give proper jury instructions in the case in which casino executive Steve Wynn sued Review-Journal columnist John L. Smith and his book publisher for libel.

She told jurors libel could be found if they believed the publisher harbored some "doubt" as to veracity, but the legal standard was "serious doubt," not mere doubt.

As for the judge deciding factual matters, two other state high court cases clearly state that such determination is not for the judge, but for a jury. In Posadas v. City of Reno, the court found that conclusions as to reckless disregard and whether the plaintiff suffered distress "are questions for a jury, and the district court erred in deciding them in a summary proceeding."

Instead of a mere mortal judge, we have a diviner of truth, an arbiter of social mores and righter of imaged wrongs. Good qualities in a Norse god, perhaps.

 

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.

 

Rules for posting comments

Comments posted below are from readers. In no way do they represent the view of Stephens Media LLC or this newspaper. This is a public forum. Read our guidelines for posting. If you believe that a commenter has not followed these guidelines, please click the FLAG icon next to the comment.