Taxpayers defend Vegas mayor for
saying, "I'd like to whack the guy!"
Citizens exposed to paying judgment
if mayor
loses multi-million dollar defamation
lawsuit
INSIDE VEGAS by Steve Miller
AmericanMafia.com
May 10, 2004
Former mob attorney-cum-Las Vegas Mayor Oscar Goodman is about to face
the whims of a Clark County jury for accusing a Henderson resident of committing
a crime, and then remarking, "I'd like to whack the guy!"
Two years ago, a local man told the FBI that he allegedly overheard
a conversation on his cellular phone wherein two men said they were going
to blow up Las Vegas. Though the threats could not be substantiated, the
story went national. The mayor blew his stack. Goodman denounced the man
for purportedly trying to hurt Las Vegas' image and damage our economy.
That's when Goodman told a TV audience in typical mob parlance, "I'd like
to whack the guy!"
The man he was referring to, Henderson resident Michael Hamdan, demanded
an apology saying his reputation was injured. No apology followed, so Hamdan
sued Goodman in his individual capacity for defamation of character. Hamdan
did not include the City of Las Vegas as a party in his lawsuit, nor did
his complaint include the mayor's official duties.
City-paid attorneys immediately filed a motion for dismissal which was
denied by District Court Judge Michelle Leavitt. Then Carolyn Goodman,
the mayor's wife, filed a motion to be excluded from personal financial
exposure, in the event Hamdan prevailed,
stating, "prior to Oscar B. Goodman making the statements which are the
subject of the instant litigation, I did not consult with, discuss or have
any other involvement in the same." Her motion also failed.
She doesn't have much to worry about
though. If the city continues defending Goodman's actions, it will also
be the city that pays any judgment Hamdan wins.
The Las Vegas SUN reported
on June 30, 2003 that, according to the lawsuit, "Goodman 'made defamatory
statements regarding the credibility, trustworthiness and reputation of
plaintiff Michael Hamdan and did so under the color of state law.' "
"The suit seeks an unspecified
amount in compensatory damages, saying the mayor 'damaged Hamdan's reputation
in the community and excited derogatory opinions about him.' "
"Hamdan, a naturalized U.S. citizen
born in Lebanon, speaks Arabic. He said that on his cell phone he heard
a man speaking Arabic (say), 'We are here in the city of corruption, the
city of prostitutes and gamblers -- the unbelievers.' "
"He said the man also said: "They
talk about freedom. We are going to hit them on the day of freedom." Hamdan
interpreted that to mean an attack was planned for July 4, 2002."
"Hamdan says Goodman defamed him
during interviews with local and national media after Hamdan reported the
conversations," according
to the SUN.
William P. Henry, senior litigation counsel for the city of Las Vegas,
and Las Vegas City Attorney Bradford R. Jerbic are both serving as Goodman's
defense attorneys in the defamation action saying his remarks were "privileged."
Both highly skilled attorneys are working at Vegas taxpayer's expense.*
What makes this story fascinating is that the taxpayers are being asked
to pay the bill for attorneys, and possibly stand good for a huge judgment
in a personal defamation lawsuit, something unprecedented in Las Vegas'
history. This inspires several questions:
Were Goodman's remarks part of his official duty? Is he receiving special
treatment? Is there a double standard at Las Vegas City Hall?
In 1987, the Las
Vegas Transit System, Inc. (LVTS) was found to be keeping the loosest
set of books since Bugsy Siegal. At the time, I was serving as a Las Vegas
City Councilman, and as a Clark County Regional Transportation Commissioner
(RTC). The City Council assigned me the duty of auditing the city's transit
bus system.
Within weeks it was discovered that the company that worked on contract
for the RTC was not properly reporting its income and expenditures. In
fact, there were so many holes in the Los Angeles based company's books
that Marvin Leavitt, the former city Finance Director, told the council,
"If skimming were to occur, it would be impossible to detect with the bookkeeping
methods they use." He presented numerous ledgers where numbers were whited
out and new amounts filled in. He also presented evidence that the city
was being overcharged for fuel and repairs.
The following day, a headline appeared on the front page of the Las
Vegas SUN: "Skim Cloud Darkens LVTS."
To keep the public informed, I held a press conference in my City Hall
office. I also authored a newspaper Op-Ed on the subject written
at my City Hall desk. At the press conference, I was joined by Mr. Leavitt
and his chief auditor Don Hanson, along with several LVTS employees who
attested to having witnessed skimming. I recommended that the company's
franchise be revoked.
Several weeks later, I became the subject of a personal defamation lawsuit
filed by the president of LVTS. As was the case with Goodman, I was also
named in my individual capacity, and the city was not named. I immediately
did as Goodman would do 17 years later, I went to the City Attorney, George
Ogilvie, to ask for assistance.
I explained that my press conference was based on information I
gathered in my official capacity, and the conference took place on city
property during regular working hours with the assistance of high level
city staff.
I was shocked when Ogilvie told me I acted "outside my scope of duty,"
that my position was part time, and the press conference occurred during
hours I was not officially on duty, and therefore my statements were not
"privileged."
He stated his office would protect me only in the event I was being
sued for something I said from the dais during a posted meeting while on
the record. Otherwise, I was not acting as a public official. In contrast,
Goodman -- also a part time city employee -- made his comments about Hamdan
at a TV station far from his City Hall office, and at a time outside normal
working hours.
Obviously, in 2004, Henry and Jerbic disagree with their predecessor's
decision. However they evidently did not check case law before riding to
the rescue of Goodman on the backs of Sin City taxpayers.
Following Ogilvie's decision, my private attorney filed a motion before
District Court Judge Thomas Foley to enjoin the City of Las Vegas in the
lawsuit and force the city attorney to defend me. My attorney said I was
on an official assignment and made appropriate comments from within my
office at City Hall on city time about city business, so I deserved to
be protected by my employer, the taxpayers.
Unfortunately, the judge agreed with Ogilvie, and I was forced to make
a claim on my umbrella insurance policy that covered all my attorney fees
and any judgment up to one million dollars. Meanwhile, the headlines stated,
"Judge Rules Taxpayer's Should Not Pay Miller's Legal Bills." My attorney
fees eventually amounted to over $300,000.
In 1990, LVTS' franchise was revoked. In 1992, their lawsuit was dismissed
-- a small comfort after all the aggravation I endured.
Today, no one - other than myself - seems concerned about who is paying
Goodman's legal bills, or who could get saddled paying for a possible judgment
against him. A far different scenario than in 1987. But, the cost to the
taxpayers will certainly be more than what my insurance paid over a decade
ago.
Duping Vegas taxpayers is not my only concern. Hamdan's lawsuit could
not come at a more inopportune time for Mayor Goodman. Granted, Goodman
is currently embroiled in a nasty fight
with the Nevada Commission on Ethics for doing favors for his sons, but
that is not his main problem with this lawsuit.
Defamation of character lawsuits have unlimited latitude when it comes
to questions that can be posed during depositions. Its common for Defendants
in such actions to be asked a myriad of questions about their personal
associations. In the case of Oscar Goodman, he is well known for refusing
to disassociate himself from a number of his former criminal clients. This
could be fodder for Mr. Hamdan's attorney to ask him embarrassing questions
under oath, questions Goodman has avoided
answering since he was elected in 1999. Questions such as why he hosted
members of Nevada's notorious Black
Book at his personal residence and at City Hall?
This process is fair because litigants in defamation actions always
try to attack each other's credibility in one way or another, so the jury
needs to know as much as possible about both litigants to make judgement
and access possible damages.
Then there is that pesky FBI-IRS investigation of Goodman's former clients
at the Crazy Horse Too strip joint. Indictments
are expected later this year and its speculated that Goodman's two attorney
sons -- who took over his criminal law practice -- could be enlisted to
defend those indicted.
The mayor's sons could also defend their father at their own expense
in the Hamdan case. However, if they did, their dad could be held personally
liable for a possible judgment, something he is exempt from if the city
continues defending him. Anyway, the city has a liability cap of only $50,000
to discourage such lawsuits. Its no wonder Henry and Jerbic are on the
mayor's defense team, he appointed them to their jobs!
This brings to mind the whims of Vegas juries. In this gambling city,
its not uncommon for trial juries to make some rather bizarre multi-million
dollar judgments, especially when the subject of their deliberations is
a well known person. If Goodman's name should somehow surface in the upcoming
indictments, such a revelation may come at a time when he's about
to go to court with Hamdan, and having his name associated with members
of organized crime just before the trial could possibly skew the jury into
"whacking" the taxpayers for millions. Of course, all this could have been
avoided long ago if Mr. Goodman had apologized to Mr. Hamdan for saying
"I'd like to whack the guy!"
Maybe that's why the mayor looks so angry?
LV Review
Journal FRONT PAGE photo by Cariño Casas
Copyright © Steve Miller
*From the Clark
County District Court Website:
Case 03-A-469438-C Status ACTIVE
Plaintiff Hamdan, Michael, Attorney Marquiz, Craig
A.
Defendant Goodman, Oscar, Attorney
Henry, William P.
Judge Leavitt, Michelle Dept. 12
Parties 0001 - P1 Hamdan, Michael
Yes
007437 Marquiz, Craig A.
Yes
0002 - D1 Goodman, Oscar
No
000101 Henry, William
P. Yes
001056 Jerbic, Bradford
R. Yes
000166 Byrnes, Jr., Philip R.
Yes
0003 - P Hamdan, Doreen
Yes
007437 Marquiz, Craig A.
Yes
0004 - D Goodman, Carolyn
No
004128 Palazzo, Timothy L.
Yes
(Highlights added by author)
---------------------------------------------------------------------------
DEFENDANT CAROLYN GOODMAN'S MOTION TO DISMISS FOR FAILURE TO STATE
A CLAIM/FEES & SANCTIONS . . . DEFENDANT OSCAR GOODMAN'S MOTION FOR
JUDGMENT ON THE PLEADINGS . . . PLAINTIFFS' COUNTERMOTION TO COMPLETE DISCOVERY
/ PRESENT SUPPLEMENTAL BRIEFING . . . PLAINTIFFS' 56F MOTION TO COMPLETE
DISCOVERY / SUBMIT SUPPLEMENTAL BRIEFING
MINUTES:
Mr. Palazzo advised Court he believes parties are making good progress
as to resolving issues as to Carolyn Goodman and he would request Motion
to Dismiss be CONTINUED; COURT SO ORDERED.
Mr. Henry provided opposing counsel and Court with smaller copies
of large blow-up posters detailing events which took place in this case.
Mr. Henry presented lengthy review of history of case; Plaintiff intercepting
cell phone conversation, Plaintiff contacting media and FBI's determination
report was not credible. Mr. Henry reviewed alleged defamatory statements
by Oscar Goodman for which Plaintiff brings a Section 1983 claim. Mr. Henry
argued you need stigma plus, you need something else, i.e., harm to Plaintiff's
reputation. Mr. Henry said there is no reference to facts as to how Plaintiff's
rights were violated or which right was violated. Further argument by Mr.
Henry that Mrs. Hamdan has nothing to do with this case. Mr. Henry argued
statements of opinion are not actionable, are not defamatory and could
be interpreted by a reasonable person as rhetorical hyperbole. Mr. Henry
cited the New York Times Rule and argued there is no set of facts that
can be found to be reckless disregard of the truth and after FBI's public
report, Mayor Goodman was making a privileged statement. Further argument
by Mr. Henry.
Court informed counsel it was not going to turn this into a Rule
56 motion; there is nothing outside the pleadings and counsel filed motion
under 12(c). Mr. Henry responded he did not want the Court to consider
anything outside the pleadings. Argument by Mr. Henry that Plaintiff Hamdan
did everything he could to make himself a public figure.
Court requested Mr. Marquiz address why Mrs. Hamdan is in the case
and also address negligent infliction of emotional distress cause of action.
Mr. Marquiz responded intentional infliction of emotional distress applies
also; statement Mayor Goodman made that Mr. Hamdan should be prosecuted
for making a false claim is per se defamatory and a Section 1983 claim.
Court noted there is still the stigma plus test Plaintiff has to meet.
Mr. Marquiz responded all that is required is Plaintiff's constitutional
rights were violated, his citizenship was challenged because of statements
made around the time of his book. Mr. Marquiz argued statements caused
damage to Plaintiff's reputation. Mr. Marquiz requested he be allowed additional
time to submit a supplemental briefing.
Court informed Mr. Marquiz he should identify all the rights Defendants
have violated; if you file a Section 1983 claim you should know what Federal
rights were violated in the statements. Court instructed Mr. Marquiz to
supplement with case law and identify Federal rights that were violated.
Court noted what the FBI reported was not a commentary on Plaintiff
Hamdan, but that the results of their investigation was his report was
not credible. Mr. Marquiz responded there is nothing from FBI that says
his client provided any inaccurate information and his client got media
assistance to get the FBI to talk to him and investigate, not to get attention
for himself. Mr. Marquiz argued there is no evidence his client is anything
other than a private person, he is not a public figure.
As to rhetorical hyperbole argument by Defendant's counsel, Mr. Marquiz
said reasonable people could disagree that this was Mayor Goodman's opinion.
Mr. Marquiz said Plaintiff set down claim and recovery in his complaint
and Nevada is notice pleading. Mr. Marquiz said Plaintiff would request
leave to amend to cure any issues as to whether he was a public person.
Mr. Marquiz referred Court's attention to 56F affidavit and noted
it contained a detailed list of facts that were alleged against Defendant
Goodman and Plaintiff did file Reply as to 56F motion which raised for
the Court factual allegations. Mr. Marquiz said factual investigation would
have to be conducted to determine whether these statements were opinion;
Plaintiff believes these were per se defamatory and he has right to conduct
discovery, because there are facts that reasonable people would disagree
on. Mr. Marquiz argued this is a question for a jury, motion should be
denied and parties allowed to do discovery.
Mr. Henry responded the Court has the facts before it in the complaint,
no additional briefing is necessary. Mr. Henry argued there is no evidence
in the record and this is a motion for judgment on the pleadings. Further
argument by Mr. Henry who asked Court to consider dates pled into this
complaint; this started with cell phone call on June 15, 2002, eight months
after September 11th. Mr. Henry said Plaintiff Hamdan is someone who thrust
themselves into the public arena, he made himself a public figure and all
of these statements were privileged under the New York Times Rule.
END OF MINUTES
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