                                                                                               11/15/2016


                                           DA 15-0716
                                                                                           Case Number: DA 15-0716

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 292



ROBERT LEE, JOHN HAGMAN, and MATTHEW FLESCH,

              Plaintiffs and Appellants,

         v.

BUCK E. TRAXLER, INDEPENDENT-OBSERVER, INC.,
a Montana corporation, JASON KORST, and the City
of Conrad, a municipality organized under the laws
of the State of Montana,

              Respondents and Appellees.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Pondera, Cause No. DV 14-27
                        Honorable David Cybulski, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Luke Casey, Lee Law Office PC, Shelby, Montana

                For Appellees:

                        Robert B. Pfennigs, Mark T. Wilson, Jardine, Stephenson, Blewett
                        & Weaver PC, Great Falls, Montana



                                                    Submitted on Briefs: August 10, 2016

                                                                Decided: November 15, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Appellants Robert Lee, John Hagman, and Matthew Flesch allege Appellees Buck

E. Traxler and Independent-Observer, Inc., published defamatory statements about the

group concerning an incident at a rest area northeast of Conrad, Montana. All parties

filed motions for summary judgment on the issue of whether the publication constituted

defamatory libel. The District Court determined that the statements were not defamatory

and granted summary judgment in favor of Traxler and Independent-Observer, Inc. Lee,

Hagman, and Flesch appeal. We affirm.

                                          ISSUE

¶2     We restate the issue on appeal as follows:

       Did the District Court err in granting summary judgment in favor of Defendants
       Traxler and the Independent-Observer?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On February 1, 2013, Appellants Robert Lee, John Hagman, Matthew Flesch, and

another companion stopped at the Montana Department of Transportation Conrad Rest

Area on Interstate 15. Ginny Winters, employed as the custodian of the Rest Area, was

in the equipment room when the four men entered the premises. Fearing for her safety

due to their loud and boisterous behavior, she locked herself in the equipment room and

called the authorities. Conrad City Police Sergeant Jason Korst and two deputies from

the Pondera County Sheriff’s Office responded to the call.

¶4     At the Rest Area, Korst documented the following evidence: a beer can and spilled

beer on the floor of one of the restrooms; urine covering the toilet and floor of a



                                             2
restroom; stab marks on the windowsill presumably from a pencil; the suggestion box

pencil and notepad, with pages torn out and scattered, on the floor of the Rest Area lobby;

and a drawing of a naked female on one of the window dividers. Winters confirmed

Korst’s statements in her deposition, stating that she was able to observe through a vent

one of the men throw a beer can into a restroom and one of the men drawing a picture of

a naked woman on the window sill, and that, once the group had left the Rest Area, she

noticed deep scratches on the wall of the Rest Area that weren’t there prior to the group’s

arrival.

¶5     The Dissent takes issue with our statement of the material facts in this case,

arguing that Plaintiffs have consistently maintained that the statements made by the

Independent-Observer were false.        However, Lee and Hagman both admitted in

deposition that a member of the group had thrown a beer can into one of the restrooms.

We also note that both Lee and Hagman admitted in deposition that they could not

confirm or deny whether one of the group members had drawn a naked woman on the

window divider, or scratched and punched holes on the window sills. Further, Flesch

admitted in deposition that because of his level of intoxication, he could neither confirm

nor deny whether he drew a naked woman on the window divider, or scratched and

punched holes on the window sills. Finally, neither Flesch, Lee, or Hagman could

confirm or deny whether a member of the group had urinated on the floor of the Rest

Area. Therefore, their protests set forth in their Reply Brief, noted in ¶ 31 of the Dissent,

are belied by the record.




                                             3
¶6     Over the course of the two months following the Rest Area incident, the local

Conrad newspaper, the Independent-Observer, would publish a total of three articles

relating to the incident at the Rest Area. Due to their importance to the underlying cause

of action, we briefly describe each article.

The First Publication – February 7, 2013

¶7     Six days after the Rest Area incident, the Independent-Observer published a brief

article entitled “Vandals hit new I-15 rest area.” The February 7th Article was three

sentences in length:

       Friday evening four individuals, allegedly from Shelby, were caught
       vandalizing the new rest area just off the north exit off of I-15. Charges
       have not yet been filed but are expected to be before the week is over. The
       I-O will have more information as soon as it becomes available.

The Second Publication – February 28, 2013

¶8     Almost a month after the Rest Area incident, the Independent-Observer published

an editorial, written by Traxler, the editor of the Independent-Observer, setting forth

Traxler’s version of the events that occurred on February 1st. The February 28th Article

began by stating, “It’s been a month now since the four ‘gentlemen’ allegedly from

Shelby, and I use that with a great deal of sarcasm, stopped in at the new rest area just off

of I-15.” The article continued on in a manner consistent with colorful editorials; in

relevant part, the article related certain statements that could be construed as factual

assertions:

       One of the young men allegedly involved, rifled a beer can into a restroom.
       Along with that, the perpetrators allegedly relieved themselves not in the
       appropriate place.
                                        . . .


                                               4
        Others in the group took pencils from the suggestion box and drew naked
        women on the window sills, and scratched and punched holes in various
        places[.]

The Third Publication – March 21, 2013

¶9      Seven weeks after the Rest Area incident, the Independent-Observer published a

third article, entitled “Two men charged in vandalism.” The March 21st Article reads in

full:

        Two of the four men from Shelby have been charged in the vandalism case
        at the new state-of-the-art rest stop just off I-15. Matthew Flesch, age 21,
        was charged with disorderly conduct and criminal mischief and Robert Lee,
        age 38, was charged with disorderly conduct in Conrad City Court. Both
        men have entered a plea of not guilty. Court dates have not yet been set.
        Chief Gary Dent commented that, “There was just no way to stretch this
        because they were there,” this in reference to being charged with
        accountability.

Notably, Hagman was not identified in the March 21st Article.

¶10     Additionally, we note that each article briefly mentioned vandalism. The First

Article stated that “four individuals . . . were caught vandalizing the new rest area.” The

Second Article was more detailed, commenting on the actions of the group and accusing

them of “not thinking at all that they are causing the taxpayers’ dollars to have the area

cleaned up by their works of vandalism,” and continuing on, stating, in relevant parts,

        Vandalism is an offense that takes place when a person(s) defaces property,
        other than their own, without permission. The act of vandalism is a crime
        against property that is punishable by jail time, monetary fines, or both.
        There is nothing in the MCA codes that says, “a little vandalism is no big
        deal.”
        There is no such thing as a little vandalism.
        Vandalism laws have been put in the books to prevent the destruction of
        property both public and private. However, some people must feel that it
        doesn’t apply to them, and as such they can go around and say, “It’s no big
        deal, we got away with it in Conrad.”


                                             5
The Third Article began by noting that “[t]wo of the four men from Shelby have been

charged in the vandalism case.”

¶11    In response to the articles, Appellants filed a complaint in the Ninth Judicial

District Court, Pondera County, against Traxler and Independent-Observer, Inc., on the

grounds that the published articles constituted defamatory libel and, not relevant to this

appeal, against the City of Conrad and Jason Korst for malicious prosecution.

¶12    Traxler and the Independent-Observer moved for summary judgment on the

Appellants’ claims of defamation, arguing the publications at issue were privileged and

true, and that the Appellants had not suffered damages as result of the articles. The City

of Conrad moved for summary judgment on the Appellants’ claims of malicious

prosecution, arguing that the Appellants had failed to prove all the elements of the claim.

The District Court granted both motions and dismissed all claims against the Defendants.

Lee, Hagman and Flesch appeal the grant of summary judgment in favor of Traxler and

the Independent-Observer.

                              STANDARD OF REVIEW

¶13    We review de novo a district court’s grant or denial of summary judgment,

applying the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint

Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839 (citation omitted).

                                     DISCUSSION

¶14    In Montana, the elements of a defamation claim are defined by statute. See

§§ 27-1-801 to 27-1-821, MCA.        Defamation is effected by either libel or slander.

Section 27-1-801, MCA. Libel is defined as a “false and unprivileged publication by


                                            6
writing, printing, picture, effigy, or other fixed representation that exposes any person to

hatred, contempt, ridicule, or obloquy or causes a person to be shunned or avoided or that

has a tendency to injure a person in the person’s occupation.” Section 27-1-802, MCA.

The statute creates a three-part requirement for actions involving defamatory libel: first,

the publication must be false; second, the publication must not be privileged; and third,

the publication must be defamatory, in that it exposes the person to “hatred, contempt,

ridicule, or obloquy,” or causes “a person to be shunned or avoided,” or has a tendency to

injure the person in his or her occupation.

¶15    The foregoing statutory scheme must be interpreted in light of Article II, Section

7, of the Montana Constitution, which provides, in relevant part, “[i]n all suits and

prosecutions for libel or slander the truth thereof may be given in evidence; and the jury,

under the direction of the court, shall determine the law and the facts.” Mont. Const. art.

II, § 7. This provision places the heart of any determination regarding defamatory libel

directly within the province of the jury, subject only to determinations envisioned by the

phrase “under the direction of the court.” While we have held that “‘there is no absolute

prohibition against granting summary judgment in libel cases,’” we emphasize that, due

to the unique nature of cases involving libel, a district court should take particular care

when evaluating such motions. Hale v. City of Billings, 1999 MT 213, ¶ 15, 295 Mont.

495, 986 P.2d 413 (quoting Williams v. Pasma, 202 Mont. 66, 72, 656 P.2d 212, 215

(1982)).

¶16    In the instant case, the District Court’s order granting the Appellees’ Motion for

Summary Judgment appears to be based on two theories:               first, that the articles


                                              7
themselves do not sufficiently identify the Appellants as to be actionable; and second, the

fact that the community apparently knew about the incident prior to the publication of the

articles precludes the articles from having a defamatory effect. However, in making its

determination, the District Court did not analyze, and made only a passing reference to,

the law defining defamatory libel in Montana. As a result, the skeletal nature of the

District Court’s order prevents this Court from determining whether the order is

supported under the law of defamatory libel. In order to remedy this deficiency, we

review the pleadings and documents filed in this case and undertake our own analysis to

determine whether the grant of summary judgment was appropriate. “‘Our de novo

standard of review of summary judgment decisions allows us to review the record and

make our own determinations regarding the existence of disputed issues of fact and

entitlement to judgment as a matter of law.’” Chapman v. Maxwell, 2014 MT 35, ¶ 12,

374 Mont. 12, 322 P.3d 1029 (quoting Wurl v. Polson School District No. 23, 2006 MT

8, ¶ 29, 330 Mont. 282, 127 P.3d 436).

¶17    Did the District Court err in granting summary judgment in favor of Traxler and
       Independent-Observer?

¶18    In order to properly address a motion for summary judgment in a case involving

defamatory libel, we first determine whether the publication is defamatory. McConkey v.

Flathead Elec. Coop., 2005 MT 334, ¶ 44, 330 Mont. 48, 125 P.3d 1121 (stating that the

determination of whether a statement is defamatory is preliminary and within the

province of the court). The facts of the instant case require a three-part analysis to

determine whether the publication was defamatory: (1) whether the communication is



                                            8
capable of bearing a particular and defamatory meaning; (2) whether the defamatory

publication was aimed specifically at the person claiming injury; and (3) as required in

the instant case, whether the defamatory publication meets the criteria to constitute libel

per se.

¶19       Second, if the publication is defamatory, we determine whether the publication is

privileged. See McLeod v. State, 2009 MT 130, ¶ 21, 350 Mont. 285, 206 P.3d 956

(citing Hale, ¶ 35). Third, if the publication is both defamatory and unprivileged, the

inquiry turns to whether the publication is true or false.

¶20       In Hale v. City of Billings, we adopted guidance from the Restatement (Second) of

Torts, noting that in cases involving libel “the court, as a preliminary finding, must

determine ‘whether a communication is capable of bearing a particular meaning; and . . .

whether the meaning is defamatory.’” Hale, ¶ 17 (quoting Restatement (Second) of

Torts § 614 cmt. a (1979)). In order to be defamatory, we have held that the words at

issue

          “must be of such nature that the court can presume as a matter of law that
          they will tend to disgrace and degrade [the plaintiff] or cause him to be
          shunned and avoided. It is not sufficient, standing alone, that the language
          is unpleasant and annoys or irks him, and subjects him to jests or banter, so
          as to affect his feelings.”

Ray v. Connell, 2016 MT 95, ¶ 11, 383 Mont. 221, 371 P.3d 391 (quoting McConkey,

¶ 45). This is a stringent test; “claims of defamatory libel may not be based on innuendo

or inference,” or “sarcastic or hyperbolic statements.” McConkey, ¶¶ 47-48.

¶21       Under the structured analysis laid out above, we would normally first determine

whether a publication was defamatory, and if so, whether the publication was privileged,


                                               9
and only if we found that a privilege did not exist would we proceed to examine the truth

or falsity of the publication to determine whether the question should be put before a jury.

In the interest of brevity, however, we move to the third element of the test, as it is

dispositive in this case.

¶22    Section 27-1-802, MCA, requires that a publication be false in order to qualify as

libel. While we have previously held that the truth or falsity of the publication “is a

determination for the jury alone to make,” we have consistently stated that if the evidence

is “so overwhelming that any other conclusion would be unreasonable,” it is within the

court’s discretion to make the proper finding. Hale, ¶¶ 17-18. Further, we have stated

that, when determining whether summary judgment is appropriate in a case involving

libel, the movant “must establish the absence of genuine issues of material fact relating to

the truthfulness of the publications in question.” Hale, ¶ 13.

¶23    While we have previously held that there is not an “absolute prohibition against

granting summary judgment in libel cases,” we reiterate now that “[u]nless the evidence

is so overwhelming that any other conclusion would be unreasonable, the issue of

whether the statements were true or false is a determination for the jury alone to make.”

Hale, ¶¶ 15, 18 (internal quotations omitted).

¶24    In Hale, we interpreted this rule as requiring a court to determine whether the

evidence was so overwhelming that “the statements were ‘essentially truthful,’ so as to

preclude a jury from determining otherwise.” Hale, ¶ 21. In that case, the Billings Police

had provided information to a third party, who broadcasted “Hale’s name, photograph,

physical description, and charge against him on TCI’s ‘Yellowstone County’s Most


                                             10
Wanted’ cable television program.” Hale, ¶ 7. The broadcast indicated that persons

shown were

       “fugitives” against whom a valid arrest warrant was in effect, that viewers
       should not attempt to apprehend any of the people as they “may be armed
       and dangerous,” that viewers should call the Billings Police with any
       information regarding “these fugitives,” and that all persons depicted on
       “Yellowstone County’s Most Wanted” program were presumed innocent
       until proven guilty in a court of law.

Hale, ¶ 7. This Court determined from the record that Hale was “neither a ‘most-wanted’

suspect, nor a ‘fugitive’ from justice,” noting that Hale’s name was included in the

broadcast only after being “chosen randomly from the three-to-five thousand outstanding

arrest warrants on file with Billings Police and that his whereabouts were known at all

times following the issuance of the arrest warrant.” Hale, ¶ 21. Faced with these facts,

we concluded that there was not overwhelming evidence that the statements were

essentially truthful, and therefore truthfulness would have to be determined by a jury.

Hale, ¶ 21.

¶25    Here, the concerns present in Hale do not exist given the testimony regarding the

Rest Area contained in the record. The First and Third Articles were brief and contained

only true factual statements. The Second Article stated, in relevant part,

       It’s been a month now since four ‘gentleman’ allegedly from Shelby . . .
       stopped in at the new rest area just off of I-15.
                                          . . .
       One of the young men allegedly involved, rifled a beer can into a restroom.
       Along with that, the perpetrators allegedly relieved themselves not in the
       appropriate place.
                                          . . .
       Others in the group took pencils from the suggestion box and drew naked
       women on the window sills, and scratched and punched holes in various
       places[.]


                                            11
¶26    The record reflects that Lee, Flesch, Hagman, and a fourth companion stopped at

the rest area together, and that Officer Korst recovered a beer can from the bathroom,

noticed urine on the floor of the Rest Area, and documented a crude drawing as well as

holes that had been stabbed in the window sills. Appellants do not contest the facts

relating to what occurred at the Rest Area, nor do they contest that the conduct at issue

occurred while they were at the Rest Area. Instead, they argue that the articles imputed

the actions to all group members, when only certain members of the group might have

participated in the conduct at issue.      Notably, none of the articles pinned specific

instances of the alleged misconduct on Hagman, Flesch, or Lee. Instead, the articles refer

to the general involvement of four individuals. The possibility that certain individuals

participated in the conduct to differing extents does not render the statements made in the

articles untrue. In light of the fact that Officer Korst and Ginny Winters documented

facts tending to corroborate even the vibrant description contained within the Second

Article, we find that it would be unreasonable for a jury to find that the statements

contained within the three articles were anything but “essentially truthful,” and that

Traxler and the Independent-Observer have satisfied their burden of establishing the

absence of a genuine issue of material fact relating to the truthfulness of the publication.

¶27    In conclusion, Hagman, Lee, and Flesch’s defamatory libel allegations fail

because, after a review of the record, we determine that the publication was not false

within the meaning of our precedent regarding libel.




                                             12
                                    CONCLUSION

¶28    For the reasons set forth in this Opinion, we determine that the three articles

published in the Independent-Observer do not constitute defamatory libel. Therefore,

Traxler and the Independent-Observer were entitled to summary judgment as to each of

the three Appellants.    Because we affirm that the publications do not constitute

defamatory libel, we do not reach the issue of whether any of the three articles were

protected by the First Amendment.

¶29    Accordingly, we affirm the decision of the District Court.


                                                 /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE


Justice McKinnon, dissenting.

¶30    The Court creates an exception to the “structured analysis,” Opinion, ¶ 21, which

our jurisprudence has long recognized and carefully employed in defamation

proceedings. In doing so, the Court obscures distinctions between the functions of a jury

and a judge and decides the quintessential issue of fact—truthfulness of the statements—

which is committed to the sound discretion of the jury.

¶31    To begin, I disagree with the Court’s characterization of Appellants’ arguments:

that is, that the statements are false because they arise from the possibility that certain


                                            13
individuals participated in the criminal conduct to differing extents. Opinion, ¶ 26. We

state: “Appellants do not contest the facts relating to what occurred at the Rest Area, nor

do they contest that the conduct at issue occurred while they were at the Rest Area.”

Opinion, ¶ 26. The Court makes inferences and judgments regarding the falsity of the

statements which are inappropriate and should be made by a jury. There is little doubt

that the particular facts underlying these proceedings are convoluted and far from clear.

Indeed, this is likely the reason the charges were ultimately dismissed. Nonetheless, that

is precisely why falsity of the statements should be left to the jury’s judgment and

decision. Nothing in the record establishes what any particular individual did; thus, this

Court takes a giant leap when it concludes otherwise by declaring the statements were

true. Had the record overwhelmingly and definitively established the truthfulness of the

statements, then perhaps the Court’s actions would be more reasonable, provided other

aspects of the “structured analysis” had been followed.        However, the inability to

“confirm or deny” does not establish as a matter of law, or overwhelmingly, the

truthfulness of the statements. Moreover, Appellants have consistently maintained that

the statements made by the Independent-Observer were false. More specifically,

       Flesch denies defacing any wall or windowsill at the rest area in any way
       and Hagman and Lee both deny having witnessed such conduct. Likewise,
       evidence on record does not support that any of the Appellants scratched or
       punched holes in the walls or windowsills. Finally, Winters testified that
       while she cleaned the rest area afterward, she did not find urine “in an
       inappropriate place.”

Appellants’ Reply Br., pp. 10–11.         The Independent-Observer called Appellants

“criminals” and “vandals” and accused Appellants of physically destroying the Rest



                                            14
Area. Although in the context of the criminal investigation Appellant elected to remain

silent, Appellants aver in the instant proceeding that these statements are not true.

Appellants denied committing acts of vandalism and obstruction of justice, which the

Independent-Observer accused them of committing.             Indeed, the City of Conrad

ultimately dismissed all charges.      Importantly, none of the individuals, as of the

publishing dates of the articles, had been charged with a crime. The Court fails to

appreciate, first, that Appellants deny the Independent-Observer’s statements they were

“criminals” and “vandals,” that they defaced the walls and urinated on the floors, and that

they were “breakers of the law.” Second, the statements accused Appellants of having

committed crimes prior to Appellants being charged with any offenses. As such, the

statements contained undisclosed facts which Appellants maintain could be proven false.

While I appreciate the Court’s eagerness to conclusively determine that the statements

were true, the evidence of their truthfulness is not so overwhelming and clear that a jury

should be precluded from determining which of the two permissible views ought to be

accepted.

¶32    Montana’s Constitution provides that “[i]n all suits and prosecutions for libel or

slander the truth thereof may be given in evidence; and the jury, under the direction of the

court, shall determine the law and the facts.” Mont. Const. art. II, § 7, (emphasis added)

In Griffin v. Opinion Publishing Co., 114 Mont. 502, 512, 138 P.2d 580, 586 (1943),

overruled on other grounds by State v. Helfrich, 277 Mont. 452, 922 P.2d 1159 (1996),

we explained the meaning of “under the direction of the court” and concluded that “the

decisions clearly show that the function of the court and jury is not greatly different in the


                                             15
trial of libel from what it is in other cases.” We held that “it is for the court and not the

jury to pass upon demurrers to the complaint; upon the admissibility of the evidence;

upon motions for nonsuit; upon motions for directed verdict; upon motions for a new trial

and upon motions to set aside verdicts or vacate judgments.” Griffin, 114 Mont. at 512,

138 P.2d at 586.1 Accordingly, unless “the evidence is ‘so overwhelming that any other

conclusion would be unreasonable,’ the issue of whether the statements were true or false

is a determination for the jury alone to make.” Hale, ¶ 18. I do not find the evidence of

the truth or even substantial truth of the Independent-Observer’s statements and


1
 The Court in Griffin explained,
        The law is as stated in Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W.
        1143, 1145, 33 L. R. A. (n. s.) 216, 217: “A demurrer lies to a petition sounding
        in tort for libel the same as to any other petition, if certain conditions are
        present—this, in spite of the constitutional provision (Article 2, sec. 14, of the Bill
        of Rights [Ann. St. 1906, p. 135]) that, in libel, ‘the jury, under the direction of
        the court shall determine the law and the facts.’ To illustrate: If A sue B for libel
        without matter of innuendo or inducement on the theory that the words published
        are libelous per se, and they are not libelous per se, the sufficiency of A’s
        petition may be challenged by demurrer, and is for the court. Again, if A sue B
        for libel for words not actionable per se, and the pleader, claiming they bear a
        hidden or latent libelous meaning because of certain extrinsic circumstances, sets
        such extrinsic circumstances forth by prefatory allegations by way of inducement
        and follows up the libelous words by an innuendo applying the words to the
        matter so pleaded by way of inducement, in such cases, such innuendo should not
        be a forced and unnatural construction and application of the words, but a
        reasonable and natural construction and application of them. A vice of that sort
        can be reached by demurrer, and is for the court. Again, if the words of the libel
        are ambiguous, and the pleader can only put a libelous tang or edge upon them by
        a wholly unnatural and forced construction and tries to do so by an innuendo, that
        vice can be reached by demurrer, and is for the court. So, if the petition be not
        challenged by way of demurrer, in limine, and the case be fully developed on trial,
        and if under the pleadings and evidence no case is made the court may take the
        case from the jury by a peremptory instruction in the nature of a demurrer. So far
        as above indicated, libel suits, though sui generis (in a sense), are subject to those
        rules of practice found wise and useful in administering justice generally in the
        courts.”
Griffin, 114 Mont. at 512–13, 138 P.2d at 586.


                                                  16
undisclosed facts to be so overwhelming that it should be removed from consideration by

a jury. In my opinion, the Court oversteps its role in concluding otherwise.

¶33    Perhaps a reminder of what the Restatement (Second) of Torts (1965) provides

would be helpful. Section 614 explains:

       (1) The court determines
            (a) whether a communication is capable of bearing a particular
            meaning, and
            (b) whether that meaning is defamatory.
       (2) The jury determines whether a communication, capable of a defamatory
       meaning, was so understood by its recipient.

Pursuant to this rule, the determination of whether the communication is capable of

bearing the meaning ascribed to it by the plaintiff, and whether the meaning so ascribed is

defamatory, is for the court to decide when reasonable minds cannot differ. If reasonable

minds could differ as to the defamatory character of the statements, then the matter is left

for decision by a jury. However, if the court decides that no reasonable person could

conclude against the plaintiff upon either of these issues, then there is no further question

for the jury to decide. If the court determines that the communication is both capable of

bearing the meaning in question, and that it is defamatory, “there is then the further

question for the jury, whether the communication was in fact understood by its recipient

in the defamatory sense.” See Restatement (Second) of Torts, § 614, cmt. B; see also

Hale, ¶ 17, McConkey, ¶ 44, Griffin, 114 Mont. at 512, 138 P.2d at 586.

¶34    Applying the foregoing to the issue of whether the District Court correctly granted

summary judgment for the Defendants limits the Court’s role to preliminarily deciding

whether the communication is capable of bearing the meaning ascribed and whether it is



                                             17
defamatory. I disagree with the Court when it provides an exception to this “structured

analysis” long employed in defamation proceedings and decides to begin its inquiry with

whether the statements themselves are truthful. Opinion, ¶ 21. It is inappropriate for the

Court to first decide whether the statements are true. That question is left for a jury to

determine after the court has concluded that the statements may have the ascribed

meaning and may be defamatory.

¶35    Thus, the only question with which this Court should be concerned is whether

reasonable minds could differ regarding the meaning ascribed by the statements and

whether the statements are defamatory. Here, because no special damages were pled in

the complaint, the underlying cause of action must be deemed an action for libel per se.

In addressing whether statements are defamatory and have the meaning ascribed to them,

we have stated that,

       the defamatory words [must] be construed according to their usual, popular
       and natural meaning and their common acceptance in society; the words
       must also be viewed by the court without the aid of special knowledge
       possessed by the parties concerned; the words must be susceptible of only
       one meaning and that meaning must be opprobrious; and the words must
       also be construed in their entirety and with reference to the entire
       document.

Tindal v. Konitz Contracting, 240 Mont. 345, 355, 783 P.2d 1376, 1382 (1989) (citing

Wainman v. Bowler, 176 Mont. 91, 94, 576 P.2d 268, 270 (1978)).

¶36    After reviewing the pleadings and record in this case, I would determine that the

Second Article published by the Independent-Observer, when viewed without the aid of

special knowledge, contains words that are defamatory in their usual, popular and natural

meanings, and is subject to only one “opprobrious” meaning. Further, I would determine


                                           18
that the statements contained within the Second Article do not consist entirely of sarcastic

or hyperbolic statements. As noted, the “words must also be construed in their entirety

and with reference to the entire document.” This rule requires that we consider, in

concert, all three of the articles published by the Independent-Observer. This conclusion

is in line with our previous decisions in cases involving defamatory libel. See Wainman,

176 Mont. at 95, 576 P.2d at 270 (where this Court considered a series of articles in their

entirety in order to find that the statements contained therein were not defamatory). I

therefore would determine that the publications at issue are capable of bearing the

ascribed meaning and of being defamatory.

¶37    We have also stated that to be defamatory, the “allegedly libelous statements must

be aimed specifically at the person claiming injury.” McConkey, ¶ 47; accord Wainman,

176 Mont. at 95–96, 576 P.2d at 270. We have interpreted this rule as requiring that “a

plaintiff must show that people in the community other than the plaintiff perceived the

statement to refer to the plaintiff . . . . [T]he test is neither the intent of the author nor the

recognition of the plaintiff himself that the article is about him, but rather the reasonable

understanding of the recipient of the communication.” Granger v. Time, Inc., 174 Mont.

42, 49–50, 568 P.2d 535, 540 (1977) (internal quotations omitted). Particularly relevant

to the determination here is the single, common thread with which the articles begin. The

articles state, in relevant part: “Friday evening four individuals, allegedly from Shelby,

were caught vandalizing the new rest area just off the north exit off of I-15”; “It’s been a

month now since four ‘gentlemen’ allegedly from Shelby, and I use that with a great

deal of sarcasm, stopped in at the new rest area just off of I-15”; and “Two of four men


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from Shelby have been charged in the vandalism case at the new state-of-the-art rest stop

just off of I-15. Matthew Flesch, age 21 . . . and Robert Lee, age 38.” (Emphasis

added.) Read together, I would find that a reader of the three articles could reasonably

understand that the articles, as a whole, were aimed at Flesch and Lee. Further, we note

that the absence of any reference to Hagman by name illustrates that the articles were not

aimed specifically at him. I would find that the defamatory statements, viewed in the

context of all three articles, were aimed specifically at Flesch and Lee, but not Hagman.2

¶38    The foregoing analysis must be interpreted in light of Article II, Section 7, of the

Montana Constitution, which places the heart of any determination regarding defamatory

libel directly within the province of the jury, subject only to determinations envisioned by

the phrase “under the direction of the court.” While we have held that “there is no

absolute prohibition against summary judgment in libel cases,” we emphasize that, due to

the unique nature of cases involving libel, a district court should take particular care

when evaluating such motions. Hale, ¶ 15. In my opinion, the circumstances here are

remarkably similar to those in Hale where the plaintiff had been accused of being “most-

wanted,” a “fugitive,” and “may be armed and dangerous.” Hale, ¶ 23. This Court

determined that “[i]t is apparent from the record that the evidence is not so overwhelming

that the statements were ‘essentially truthful,’ so as to preclude a jury from determining

otherwise.” Hale, ¶ 21. The record contained evidence that Hale was neither a “most-


2 Our precedent also requires that if we determine the publication is defamatory, we must
consider whether the publication is privileged. See McLeod v. State, 2009 MT 130, ¶ 21, 350
Mont. 285, 206 P.3d 956 (citing Hale, ¶ 35). However, the purpose of my dissent is to address
the Court’s usurpation of the jury’s role in this defamation proceeding and not to discuss any
privilege in making the defamatory statement.


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wanted” suspect, nor a “fugitive” from justice; and thus the answer to the question of

whether the information provided to the defendants was truthful was “far from

conclusive.” Hale, ¶ 20.

¶39    I dissent from the Court’s decision to decide an issue of fact—truthfulness of the

statements—which should have been submitted to the jury. I also disagree with this

Court’s departure from well-reasoned and careful precedent which recognizes a

structured analysis and procedure for protecting the distinct roles of the judge and jury in

defamation proceedings.


                                                 /S/ LAURIE McKINNON




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