                                                                                                   07/07/2020


                                           DA 19-0440
                                                                                               Case Number: DA 19-0440

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2020 MT 173N



ELAINE MITCHELL,

              Plaintiff and Appellant,

         v.

GLACIER COUNTY; GLENDA HALL, Glacier County
Clerk and Recorder; and MICHAEL DESROSIER,
Glacier County Commissioner,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Glacier, Cause No. DV-2017-58
                        Honorable Jon A. Oldenburg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Patrick F. Flaherty, Flaherty Gallardo Lawyers, Great Falls, Montana

                For Appellees:

                        Gregory L. Bonilla, MACo Defense Services, Helena, Montana



                                                     Submitted on Briefs: May 6, 2020

                                                                 Decided: July 7, 2020


Filed:
                                  q3,,---,6mal•-.— 4(
                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1         Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and shall not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2         Elaine Mitchell appeals a Ninth Judicial District Court order, Glacier County,

alleging the court erred in dismissing her complaint for failure to state a claim under

M. R. Civ. P. 12(b)(6). We affirm.

¶3         Mitchell’s complaint alleged that Glacier County officials engaged in malicious

prosecution, abuse of process, defamation,1 violation of the Government Code of Fair

Practices, and violations of her civil rights, including the rights of free speech, assembly,

press, to participate in governmental activities and to be free from retaliation for such

participation, as well as her rights to equal protection of the laws and the due process of

law. Her complaint arises as a result of a complaint by Defendant Glenda Hall (“Hall”)

against Mitchell with the Montana Department of Labor and Industry, Business Standards

Bureau (“Department”).2            Hall’s complaint alleged Mitchell was operating as an

accountant without a license. Upon review, the Department compliance staff concluded


     1
         Mitchell conceded this claim and does not raise the issue on appeal.
     2
     The dispute between these parties is extensive and ongoing. The Hall complaint was filed
in an environment of criticism by Mitchell of Ms. Hall and the Commissioners for alleged poor
management of county government and incompetence.
                                                    2
that the complaint failed to include an allegation that states a violation of law or rule

since “the licensure act does not require a license in order for persons to refer to

themselves as ‘accountants.’” The Department administratively closed the complaint

and no further action was taken.

¶4     A complaint in district court may be dismissed for failure to state a claim if it

appears beyond a doubt that the plaintiff can prove no set of facts in support of her claim

which would entitle her to relief. Willson v. Taylor, 194 Mont. 123, 126, 634 P.2d 1180,

1182 (1981).

¶5     Mitchell’s malicious prosecution and abuse of process claims fail since no judicial

proceeding was instituted. Seltzer v. Morton, 2007 MT 62, ¶¶ 57, 72, 336 Mont. 225, 154

P.3d 561; Plouffe v. Mont. DPHHS, 2002 MT 64, ¶ 16, 309 Mont. 184, 45 P.3d 10;

§ 1-1-102(5), MCA. Mitchell’s remaining claims alleging violations of the Government

Code of Fair Practices and her civil rights were not pleaded with specificity. Mysse v.

Martens, 279 Mont. 253, 266, 926 P.2d 765, 773 (1996) (holding a complaint “must give

notice to the other party of the facts which the pleader expects to prove, and the facts

must disclose the presence of all the elements necessary to make out a claim”).

Mitchell’s civil rights complaint fails to allege how or when she was deprived of her free

speech rights, right to equal protection, due process, or the damages caused. She only

alleges Hall’s complaint was intended to “use the legitimate purposes of government for

a corrupt, sinister, and ulterior purpose; namely to further her private agenda of

destroying the livelihood and career and civil rights of Elaine Mitchell.” Regarding her

Fair Practices claim, that the County discriminated against her, Mitchell again fails to

                                            3
allege with specificity how the County discriminated against her, nor does she allege

specific codes the County violated.3 The District Court did not err in its conclusions of

law and properly dismissed Mitchell’s claims for failure to state a claim.

¶6       We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶7       Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ JIM RICE
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




     3
     Mitchell also pressed her discrimination complaint with the Montana Human Rights
Bureau; the Bureau “found no reasonable cause to believe that discrimination occurred” and
dismissed the complaint on July 18, 2017.
                                             4
