Myers v. Fulbright

• Decision Date: 18 March 2019
• Docket Number: CV 17-59-M-DWM-JCL
• Citation: 367 F.Supp.3d 1171
• Parties: 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.
• Court: U.S. District Court — District of Montana

367 F.Supp.3d 1171

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.

CV 17-59-M-DWM-JCL

United States District Court, D. Montana.

Signed March 18, 2019

Robert C. Myers, Hamilton, MT, pro se.

J. Stuart Segrest, Montana Department of Justice, Matthew T. Cochenour, Montana Attorney General, Helena, MT, for Defendants.

OPINION and ORDER

Donald W. Molloy, District Judge United States District Court

Pro se Plaintiff Robert Myers seeks declaratory and injunctive relief, alleging Montana's criminal defamation statute, Montana Code Annotated § 45-8-212, is unconstitutional on its face and as applied under the United States Constitution. Defendants William Fulbright and Timothy Fox (the "State") have moved for summary judgment on all claims. (Doc. 52.) United States Magistrate Judge Jeremiah Lynch recommends the State's motion be granted and the case dismissed. (Doc. 67.) Myers filed untimely objections,¹ (Doc. 71), to which the State responded, (Doc. 72). Myers is entitled to de novo review of the specific findings and recommendations he identified in his objections, 28 U.S.C. § 636(b)(1), while the remaining findings and recommendations are reviewed for clear error, McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc. , 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal. , 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (internal quotation marks omitted).

Myers raises six objections to Judge Lynch's findings, arguing it was error to (1) judicially construe the statute to include an actual malice standard; (2) conclude that there was not an intent element, which made the statute ambiguous; (3) apply Montana's reasonable doubt burden of proof; (4) ignore Myers's vagueness argument; (5) assume the statute as written does not conflict with First Amendment precedent; and (6) fail to address the constitutionality of the claims presented in his Response to Summary Judgment, (Doc. 62). (Doc. 71.) Myers is a disbarred lawyer proceeding on his own behalf. Despite his legal background, his pro se status requires his filings be construed liberally, see Bernhardt v. L.A. Cty. , 339 F.3d 920, 925 (9th Cir. 2003), complicating review of his objections. In light of his status, Myers' objections are considered specific enough to elicit de novo review in those areas identified. Ultimately, § 45–8–212 is substantially overbroad because it does not include an actual malice requirement, see N.Y. Times Co. v. Sullivan , 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; Garrison v. Louisiana , 379 U.S. 64, 67, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and its overbreadth cannot be cured by a narrowing interpretation. Accordingly, the Court need not address his remaining objections.

A defamatory statement must be "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." N.Y. Times , 376 U.S. at 279–80, 84 S.Ct. 710 ; see also Garrison , 379 U.S. at 78, 85 S.Ct. 209. Myers argues that the Montana law is facially invalid because it does not include an "actual malice" requirement. Montana's criminal defamation law provides:

(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 justified if:

(a) the defamatory matter is true;

(b) the communication is absolutely privileged;

(c) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern;

(d) the communication consists of a fair and true report or a fair summary of any judicial, legislative, or other public or official proceedings; or

(e) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with the purpose to further the interest or duty.

(4) A person may not be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or nolo contendere.

Mont. Code Ann. § 45-8-212.

In considering whether Montana's criminal defamation statute is facially overbroad, the Court must "proceed with caution and restraint." Erznoznik v. City of Jacksonville , 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Hence, it "should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts and its deterrent effect on legitimate expression is both real and substantial." Id. (citations omitted); Broadrick v. Oklahoma , 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In the First Amendment context, "a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks omitted). Substantial overbreadth does not exist if the statute's application can "be cured through case-by-case analysis of the fact situations to which its sanctions ... may not be applied," Broadrick , 413 U.S. at 615–16, 93 S.Ct. 2908, and "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court," Bd. of Airport Comn'rs v. Jews for Jesus, Inc. , 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (quoting Members of City Council of City of L.A. v. Taxpayers for Vincent , 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ). Because Myers challenges a state statute, Montana's rules of statutory construction apply. Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris , 729 F.3d 937, 945 (9th Cir. 2013).

First, the Court must presume that when the Montana Legislature enacts or amends a statute it is aware of existing law, including court decisions interpreting statutes. Swanson v. Hartford Ins. Co. of Midwest , 309 Mont. 269, 46 P.3d 584, 588 (2002). The two primary Supreme Court cases addressing the "actual malice" requirement, New York Times v. Sullivan and Garrison v. Louisiana , were issued in 1964. Thus, when Montana enacted § 45–8–212 in 1973, it is presumed to have been aware of these cases. However, the 1973 statute was based on the 1962 version of the Minnesota Criminal Code, see 9 Annotations to the MCA 634 (2018), which did not consider New York Times or Garrison . Moreover, in 1996, the Montana Supreme Court held that the statute was unconstitutionally overbroad for including language that prevented truth from being an absolute defense. See State v. Helfrich , 277 Mont. 452, 922 P.2d 1159 (1996) (addressing § 45–8–212(3)(a) ). The Legislature was forced to amend the statute in 1997 to remove the offending language.² As a result, the Legislature's omnipotence as to the state of the law has been enervated in this context.

Second, statutes are presumed to be constitutional and courts must "construe statutes narrowly to avoid an unconstitutional interpretation if feasible." City of Great Falls v. Morris , 332 Mont. 85, 134 P.3d 692, 695 (2006). In doing so, statutes must be read "as a whole, without isolating specific terms from the context in which they are used by the Legislature." Id. (internal quotation marks omitted). Nevertheless, criminal regulation of First Amendment expression is subject to exacting review. Montana v. Ytterdahl , 222 Mont. 258, 721 P.2d 757, 759 (1986) ; Gooding v. Wilson , 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) ; see City of Houston v. Hill , 482 U.S. 451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) ("Criminal statutes must be scrutinized with particular care[.]"). "In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Mont. Code Ann. § 1–2–101. Thus, when interpreting a statute, courts must first look to the plain meaning of the statute and should look no further if the plain meaning clearly conveys the intent behind the statute. Farmers All. Mut. Ins. Co. v. Holeman , 278 Mont. 274, 924 P.2d 1315, 1317 (1996). Moreover, Supreme Court precedent does not "authorize[ ] a court in interpreting a statute to depart from its clear meaning." United States v. Sullivan , 332 U.S. 689, 693, 68 S.Ct. 331, 92 L.Ed. 297 (1948). Here, the explicit terms of § 45–8–212 do not include an actual malice requirement. Recognizing the indefensibility of such broad language, the State argues for a narrowing interpretation that includes the requisite mental state. The question then is whether "actual malice" is contained "in substance" in the Montana statute. See § 1–2–101.

Prior Montana Supreme Court decisions may narrow the application of a statute to within constitutional bounds. Gooding , 405 U.S. at 524, 92 S.Ct. 1103 ; Smith v. Goguen , 415 U.S. 566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (reviewing state jurisprudence for "a narrowing state court inte...