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Myers v. Fulbright

United States District Court, D. Montana, Missoula Division

January 30, 2018

ROBERT MYERS, Plaintiff,
v.
WILLIAM E. FULBRIGHT, in his official capacity as the County Attorney for Ravalli County; TIMOTHY C. FOX, in his official capacity as Attorney General for the State of Montana, Defendants.

          FINDINGS & RECOMMENDATION

          Jeremiah C. Lynch United States Magistrate Judge.

         Attorney Robert Myers brings this action for declaratory and injunctive relief seeking a determination that Montana's criminal defamation statute, Montana Code Annotated § 45-8-212, is unconstitutional on its face and as applied under the First Amendment to the United States Constitution. Defendants William Fulbright and Timothy Fox ("the State") have moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction based on lack of standing. For the reasons set forth below, the State's motion to dismiss should be denied.

         I. Background

         In 2016, Myers ran unsuccessfully against Judge Jeffrey Langton for the position of district judge for the Montana Twenty-First Judicial District Court, Ravalli County. During his campaign, Myers claimed that Judge Langton was unfit for office and ran several advertisements accusing him of abusing his power as a judge. The advertisements accused Judge Langton of, among other things, purchasing and using illegal drugs, and drinking alcohol with minors.

         Approximately one month after Myers announced his candidacy, the Montana Office of Disciplinary Counsel ("ODC") filed the first of three complaints against Myers. The first complaint, filed in April 2016, alleged professional misconduct based on Myers' conduct a few years earlier during a domestic relations case presided over by Judge Langton. (Doc. 1-2). The second complaint, filed in July 2016, accused Myers of engaging in professional misconduct during the campaign by making false statements about Judge Langton in a radio advertisement. (Doc. 1-5). The third complaint, filed in January 2017, similarly accused Myers of engaging in professional misconduct by making false statements about Judge Langton in a number of other campaign advertisements. (Doc. 1-9).

         Myers began preparing his defense to the ODC complaints, and attempting to locate and interview witnesses to corroborate his campaign statements about Judge Langton's conduct. In early May 2017, a detective from the Missoula County Sheriffs Department informed Myers that he was investigating a criminal defamation complaint filed against him by Judge Langton based on the statements in Myers' campaign advertisements. The detective identified three individuals he was seeking to interview as part of the investigation. Myers explained that he had been "very careful" while preparing his campaign advertisements, and had obtained affidavits from each of those individuals to support his statements about Judge Langton. (Doc. 32, at 14).

         Just a few days later, on May 4, 2017, Myers commenced this action challenging the constitutionality of Montana's criminal defamation statute, Mont. Code Ann. § 45-8-212, on First Amendment grounds. (Doc. 1). That statute provides:

(1) Defamatory matter is anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's or its business or occupation.
(2) Whoever, with knowledge of its defamatory character, orally, in writing, or by any other means, including by electronic communication, as defined in 45-8-213, communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation and may be sentenced to imprisonment for not more than 6 months in the county jail or a fine of not more than $500, or both.
(3) Violation of subsection (2) is justified if:
(a) the defamatory matter is true;
(b) the communication is absolutely privileged;
(c) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern;
(d) the communication consists of a fair and true report or a fair summary of any judicial, legislative, or other public or official proceedings; or
(e) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with the purpose ...

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