Denny Driscoll Boys Home v. State

No. 8 6 - 5 3 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
DENNY DRISCOLL BOYS HOME, a
Montana corporation and WILL
AND DAISY BRAISER BOYS RANCH,
a Montana corporation,
Plaintiffs and Appellants,
-vs-
THE STATE OF MONTANA; THE DEPARTMENT
OF SOCIAL AND REHABILITATION SERVICES
OF THE STATE OF MONTANA: THE DEPARTMENT
OF THE ATTORNEY GENERAL OF THE STATE OF
MONTANA: THE DEPARTMENT OF JUSTICE OF THE
STATE OF MONTANA; MIKE GREELY; KEITH L.
COLBO and FRITZ BEHR,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby, Butte, Montana
For Respondent:
John Maynard, Dept. of Administration, Tort Claims
Div., Helena, Montana
Submitted on Briefs: March 12, 1 9 8 7
Decided: June 4 , 1987
Filed: JuN 4- 4987
B
J*,
Clerk
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d
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiffs appeal the order for summary judgment granted
by the District Court, First Judicial District, County of
Lewis and Clark. We affirm the District Court's order.
Plaintiffs Denny Driscoll Boys Home and Will and Daisy
Braiser Boys Ranch, both Montana corporations, filed a libel
action against defendants State of Montana, its agencies and
agents for alleged libelous statements published in various
Montana newspapers. Plaintiffs' sole issue on appeal is
whether the District Court erred in granting summary
judgment .
Under Rule 56 (c), M. R.Civ.P., summary judgment shall be
granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." The moving party has the
burden of making a clear showing of the complete absence of
any genuine issue of material fact. Harland v. Anderson
(1976), 169 Mont. 447, 450, 548 P.2d 613, 615. ~ a i s e rv.
Town of Whitehall (Mont. 1986), 718 P.2d 1341, 1342, 43
St.Rep. 846, 848. Once the moving party has met this initial
burden of proof, the burden shifts to the party opposing the
motion, who then must come forward with substantial evidence
raising a genuine issue of material fact. Harland v.
Anderson, 169 Mont. at 451, 548 P.2d at 615. Bare assertions
and conclusory statements are not sufficient to defeat a
motion for summary judgment. Small v. McRae (1982), 200
Mont. 497, 522, 651 P.2d 982, 995.
It appears that the allegations of libel stem from a
letter written August 21, 1979 by Norma Vestre, Bureau Chief
of the Social Services Bureau, to Reverend J. F. Finnegan,
director of the Home and Ranch corporations. The letter
informed Rev. Finnegan that pursuant to Department of Justice
investigations of alleged criminal activity at the Home, the
Department of Social and Rehabilitation Services would not
renew the licenses for the Home and the Ranch. The letter
enumerated eight alleged criminal activities and several
child care regulation violations which were under
investigation. Carbon copies of the letter were sent to
attorneys for Rev. Finnegan and the Home, the Director of
SRS, and an SRS employee involved in the investigation.
As a result of the letter, the plaintiffs requested an
administrative hearing on the nonrenewal. The SRS letter was
admitted into evidence on September 28, 1979, by stipulation
of the parties at a pre-hearing conference. The relicensure
proceedings were subsequently dismissed in November, 1979,
through the withdrawal of the license applications and the
withdrawal of appearances by the Home and Ranch corporations.
The Home and Ranch corporations do not argue that the
letter as sent to the six parties above or as admitted into
evidence constitutes libel. Rather, they argue that
newspaper articles which reported the investigations and
allegations of criminal activity are based on statements made
by the agents of the State of Montana.
All of the statements made directly by the agents of the
State to the press acknowledged investigations were being
conducted and charges would be filed against Rev. Finnegan.
These were true statements. None of the agents' statements
made reference to the eight specific criminal activities
enumerated in the SRS letter. The mention of the alleged
criminal activities which appeared in the newspaper articles
was taken from the SRS letter which had been admitted into
evidence at the administrative hearing. Under S 2-6-101,
MCA, the letter became a public writing upon being admitted
into evidence on September 28, 1979. Under 5 2-6-102, MCA,
every citizen has a right to inspect and take a copy of
public writing of this state. Further, affidavits submitted
by state agents Judith H. Carlson, Fritz 0 . Behr, Keith L.
Colbo and Mike Greely all state that no communication of
specific criminal charges had been made by any state agent to
the press or mass media.
Libel is defined by statute as "a false and unprivileged
publication ... which exposes any person to hatred,
contempt, ridicule or obloquy or which causes him to be
shunned or avoided or which has a tendency to injure him in
his occupation." Section 27-1-802, MCA. A privileged
publication includes one made in the proper discharge of an
official duty. Section 27-1-804 (1) , MCA. Where a public
officer is acting within the scope of his or her authority,
his or her communication within that scope is privileged.
Storch v. Board of Directors of the Eastern Montana Region
Five Mental Health Center (1976), 169 Mont. 176, 182, 545
P.2d 644, 648 (citing Barr v. Matteo (1959), 360 U.S. 564,
571, 79 S. Ct. 1335, 1339, 3 L. Ed. 2d 1434, 1441).
Based on the foregoing, we hold that plaintiffs did not
sustain their burden of proof that genuine issues of material
fact exist to be tried, and therefore defendants are entitled
to judgment as a matter of law. All statements made by
defendants were communications made in the proper discharge
of their official duties. Section 27-1-804(1), MCA.
The order of the District Court is affirmed.
We Concur: