986 P.2d 413 (Mont. 1999), 98-476, Hale v. City of Billings, Police Dept.

Docket Nº:98-476.
Citation:986 P.2d 413, 295 Mont. 495, 1999 MT 213
Party Name:Mark HALE, Plaintiff and Appellant, v. CITY OF BILLINGS, Montana, POLICE DEPARTMENT, and Billings Telecommunications, Inc., Defendants and Respondents.
Case Date:September 14, 1999
Court:Supreme Court of Montana
 
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986 P.2d 413 (Mont. 1999)

295 Mont. 495, 1999 MT 213

Mark HALE, Plaintiff and Appellant,

v.

CITY OF BILLINGS, Montana, POLICE DEPARTMENT, and Billings Telecommunications, Inc., Defendants and Respondents.

No. 98-476.

Supreme Court of Montana

September 14, 1999.

Submitted on Briefs Feb. 4, 1999.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Maurice R. Colberg, Jr., Judge presiding.

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[Copyrighted Material Omitted]

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[295 Mont. 496] Gary L. Beiswanger, Billings, Montana, For Appellant.

Harlan B. Krogh, Moulton, Bellingham, Longo & Mather, Billings, Montana (City of Billings Police Department); Calvin J. Stacey, Stacey & Walen, Billings, Montana (Billings TCI, Inc.), For Respondents.

[295 Mont. 497] Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Plaintiff and Appellant Mark Hale (Hale) brought defamation and negligence claims against Defendants and Respondents City of Billings Police Department (Billings Police) and Billings Telecommunications, Inc. (TCI). The Thirteenth Judicial District Court, Yellowstone County, granted summary judgment for both Defendants and Hale appealed, asserting that publication of his photo and personal information by Billings Police and the subsequent broadcast by TCI of this information on its cable program "Yellowstone County's Most Wanted" along with the terms "fugitive," "most wanted," and "armed and dangerous" were defamatory. Hale also asserted that Billings Police were negligent when they failed to timely inform TCI of Hale's arrest and thereby prevent further broadcast of the information. We reverse and remand.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err by granting both Defendants' motions for summary judgment on the issue of defamation with respect to the falsity of the statements made?

¶ 4 2. Did the District Court err in granting Billings Police's motion for summary judgment on the issue of defamation with respect to Billings Police's claimed privilege?

¶ 5 3. Did the District Court err in granting Billings Police's motion for summary judgment on the issue of negligence by finding that Billings Police owed no duty to Hale?

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Background Facts

¶ 6 On April 2, 1995, a complaint was filed in Billings City Court charging Appellant Mark Hale with misdemeanor domestic abuse following a March 25, 1995 incident between Hale and his then estranged wife, Kathryn, at one of their places of business in Billings. A warrant was issued for Hale's arrest the next day. Several attempts by the investigating officer to serve the warrant at Hale's personal residence proved unsuccessful. The record indicates that the officer admittedly refrained from attempting to execute the warrant at Hale's known places of business during the officer's day-time shift, not wishing to "embarrass" Hale. Also, as a matter of Billings Police domestic abuse arrest practice, the investigating officer made no attempt to contact Hale by telephone, mail, or in any other way alert Hale that a complaint had been filed or that a warrant had been issued. Consequently, Hale claims he remained unaware for the ensuing [295 Mont. 498] ten months prior to his arrest that Kathryn had called the police, that a complaint had been filed against him, or that an outstanding warrant for his arrest had been issued. Hale's arrest at his home occurred shortly after midnight on January 24, 1996.

¶ 7 The parties agree that the arrest most likely resulted from the broadcast of Hale's name, photograph, physical description, and charge against him on TCI's "Yellowstone County's Most Wanted" cable television program. The program, which aired for approximately eight-to-nine minutes four times daily, featured a "voice-over" and still photos of Hale, and other persons similarly depicted. The voice-over informed viewers that the 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.

¶ 8 The information regarding Hale, which was provided to TCI by Billings Police on January 9, 1996, first aired January 22, 1996, and continued airing until January 29, 1996--for five, perhaps six, viewing days after Hale had been arrested. On January 30, 1996, following several requests by Hale, Billings Police notified TCI personnel that Hale had been arrested and that his photo and related information should be removed from the program. By then, however, the one-week air time had expired and the use of Hale's photo and information had already been discontinued.

¶ 9 Hale filed a complaint in the Thirteenth Judicial District Court, Yellowstone County, alleging that both the Billings Police and TCI defamed him with his inclusion in the "Yellowstone County's Most Wanted" program and that the Billings Police were negligent for not timely notifying TCI of Hale's arrest, which resulted in the post-arrest airing of information pertaining to Hale. On June 26, 1998, the District Court granted both Defendants' motions for summary judgment. Hale appealed.

Standard of Review

¶ 10 Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions, and any affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. To sustain a motion for summary judgment, the moving [295 Mont. 499] party must establish that no genuine issues of material fact exist which would necessitate a trial of the issues presented. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. Upon meeting this initial burden, the burden shifts to the party opposing the motion, who must show that an issue of material fact does exist. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 104. This Court reviews a summary judgment decision under the same standard as the district court in making the decision. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

Issue 1.

¶ 11 Did the District Court err by granting both Defendants' motions for summary judgment on the issue of defamation with

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respect to the falsity of the statements made?

¶ 12 Appellant Hale argues that the District Court erred in granting summary judgment to Billings Police and TCI based on the conclusion that the information Billings Police provided TCI and the information TCI broadcast to the public was either truthful, or, if not truthful, then constitutionally protected, and therefore not defamatory as a matter of law.

¶ 13 Pursuant to § 27-1-802, MCA, defamatory libel is:

[F]alse and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye 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.

Thus, as a first step toward summary judgment, the moving parties here must establish the absence of genuine issues of material fact relating to the truthfulness of the publications in question.

¶ 14 Montana's Constitution provides a necessary beginning reference point to this discussion, a point not directly raised by the parties but, nevertheless, present within the parties' cited authority. "In 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." Art. II, § 7 Mont. Const. (emphasis added).

¶ 15 This Court, however, has distinguished this provision by finding that "there is no absolute prohibition against granting summary judgment in libel cases." Williams v. Pasma (1982), 202 Mont. 66, 72, 656 P.2d 212, 215 (citing Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580). Not since Griffin was decided, however, has the specific interplay between judge and jury been adequately [295 Mont. 500] addressed by this Court. In light of the District Court's summary judgment memorandum and order, which include conclusions of law as well as fact on a number of issues that seemingly conflict with Montana's Constitution, it is imperative that we at this time determine the scope of constitutional directives found in Article II, Section 7.

¶ 16 The Restatement (Second) of Torts has been referenced as a reliable authority in myriad defamation cases in Montana, and, in fact, provided the foundation for the rules regarding the roles of judges and juries in Griffin. See, e.g., Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580, overruled on other grounds by State v. Helfrich (1996), 277 Mont....

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