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Myers v. Fulbright

United States District Court, D. Montana, Missoula Division

December 10, 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.

         Pro se Plaintiff 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 for summary judgment on all claims. For the reasons set forth below, the State's motion should be granted and this case should be dismissed.

         I. Background [1]

         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.

         Based on those advertisements, the Montana Office of Disciplinary Counsel (“ODC”) filed two professional misconduct complaints against Myers, accusing him of making false statements about Judge Langton during the campaign. Following a hearing in July 2017, the Montana Commission on Practice found that Myers had violated the Montana Rules of Professional Conduct and the Montana Code of Judicial Conduct. The Montana Supreme Court adopted the Commission's findings, and disbarred Myers from the practice of law in Montana. In the Matter of Robert C. Myers, Mont. Sup. Ct., PR 17-0026 (Dec. 28, 2017).

         In the meantime, in May 2017 while the ODC disciplinary complaints were still pending, Myers learned that the Missoula County Sheriff's Department was investigating a criminal defamation complaint filed against him by Judge Langton based on the statements in his campaign advertisements. Shortly after learning of the investigation, Myers commenced this action bringing both facial and as-applied First Amendment claims challenging the constitutionality of Montana's criminal defamation statute. This Court has previously held that Myers has Article III standing to proceed with both claims. The State moves for summary judgment on the ground that Montana's criminal defamation statute is constitutional both on its face and as applied to Myers.

         II. Summary Judgment Standards

         Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). A movant may satisfy this burden where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).

         Once the moving party has satisfied its initial burden with a properly supported motion, summary judgment is appropriate unless the non-moving party designates by affidavits, depositions, answers to interrogatories or admissions on file “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. 317, 324 (1986). The party opposing a motion for summary judgment “may not rest upon the mere allegations or denials” of the pleadings. Anderson, 477 U.S. at 248.

         In considering a motion for summary judgment, the court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).

         III. Discussion

         Montana's criminal defamation statute, Mont. Code Ann. § 45-8-212, provides as follows:

(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 ...

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