INTERPLEADER: Frivolous claims by one-time attorney/girlfriend to all proceeds of decedent’s investment account over 4 others named in TOD rejected, assessed fees/costs against her share of $2,808,425 funds… Cebull.

James LeFeber executed a Scottrade Transfer on Death Beneficiary Plan a month before his death in 2010 at age 71. His former girlfriend Kristine Davenport claims entitlement to his entire Scottrade account. The 4 others named in the TOD — Shane LeFeber, Patricia Faller, Christopher Gibbons, and Kimberly Chabot — do not contest the TOD. When Davenport refused to release Scottrade from liability if it distributed the proceeds pursuant to LeFeber’s TOD, Scottrade filed this interpleader and placed $2,808,425.21 in the Court registry and was then dismissed. Since it acted prudently, the Court ordered that it recoup its attorney fees from the interpled proceeds, reserving ruling as to whom the approximately $6,000 in fees would be charged.

Shane LeFeber is son of LeFeber’s longtime girlfriend Maggie Johnson. They moved to Florence in 1994 and were involved in litigation over the house until 2007. LeFeber and Shane remained close after the relationship ended, with Shane siding with LeFeber over his mother. LeFeber considered Shane his step-son and left him his residuary estate, oil & gas leases, and 56% of the Scottrade account. Shane spent considerable time away from his family in Oregon to care for LeFeber in Montana the last months of his life.

Faller was LeFeber’s neighbor in Florence. Over the years, and especially after Maggie left, he had holiday meals with Faller and her husband. As soon as LeFeber learned he was ill he designated her attorney-in-fact. She was named PR in his will and given his home and beloved dog and cat. Under the TOD she is entitled to 4% of the Scottrade account. She has retained counsel for this suit.

Gibbons met LeFeber in 1979 when he moved across the road from him and his parents in Idaho. LeFeber was a father figure, helping him and his brothers through difficult family times in their teen years. Gibbons avers that LeFeber’s compassion & love made an enormous difference in his life. LeFeber asked that Gibbons be there when he died and Gibbons took time away from his family and work in Idaho to care for LeFeber his last 2 months. LeFeber left 16% of his Scottrade account to Gibbons. Gibbons is pro se.

Chabot, also pro se, developed a close friendship with LeFeber after they met on the Internet in 2006. They spent 2 weeks in Hawaii and had frequent phone and email contact until he died. He left 8% of his Scottrade account to her.

Davenport (aka Hawkins) is a Montana attorney who was suspended indefinitely in 1994 after being convicted of theft. In 5/06 the Montana Supreme Court transferred her to “disability/inactive,” concluding that “clear and convincing evidence does establish that Hawkins suffers from physical and mental conditions which adversely affect her ability to practice law.” Despite her disability/inactive status, she has a history of frivolous & vindictive pro se litigation. The MSC determined earlier this year that she egregiously misrepresented that she should be able to file a late appeal because her counsel died during the proceedings, when he actually died more than a year before she was required to appeal. True to form, she claims it “misunderstood the situation” and has petitioned for rehearing. In another recent case, described by the MSC as having a “mind-numbing” procedural history, she was determined to have filed affidavits in bad faith and prosecuted her appeal by merely repeating “unfounded, outrageous, and conclusory accusations against everyone involved in her case.” That was a misdemeanor prosecution for speeding and maintaining community decay, to which she responded by trying to disqualify the JP by alleging a litany of criminal & ethical misconduct. She has followed the same course in this mind-numbing proceeding. She met LeFeber in 2006 in the offices of Tip & Buley in Missoula. They were introduced by his friend and attorney Raymond Tipp. Although she now denies it, it appears that she knew he was a multimillionaire from the outset. Their relationship became romantic in 7/07, but LeFeber decided to put space in it in the fall of 2007 when she took a sudden interest in his money. There is no evidence of a romantic relationship after 2007, but she maintains that his TOD and will are invalid and she is entitled to his estate. She primarily argues that they entered into an oral contract in 2007 in which he agreed to leave her everything as long as she stayed with him “emotionally” until his death, and that he then made a new will and TOD putting this oral contract into effect. She has used her knowledge of the law to allege virtually every cause conceivable under self-serving theories of LeFeber’s estate planning, death, and cremation. She alleges that Defendants engaged in a conspiracy to interfere with the alleged oral contract and will through fraud, duress, undue influence, and breach of fiduciary duty, as well as other causes, some of which are not recognized by Montana law. Her most scandalous claims are that Defendants murdered LeFeber and spoliated the evidence by illegally cremating him to prevent him from changing the estate plan he made because of their undue influence. As discussed in this lengthy (81-page) order, all these claims are patently frivolous. Defendants seek a declaration that the account be distributed as provided in the TOD and that their attorney fees & costs be paid out of her part of the Scottrade account.

Defendants are entitled to summary judgment on all of Davenport’s claims including undue influence, fraud, civil conspiracy, duress, felonious killing, spoliation, tortious interference with contract and expectancy, breach of fiduciary duty, unclean hands, active persuasion, encouragement & inciting, unconscionable conduct, and any other cause she has alleged. All of Davenport’s motions for summary judgment are denied.

Declaratory judgment shall be entered in favor of Defendants. LeFeber’s 8/10/10 TOD and allocation of Scottrade funds pursuant to the beneficiary designations are valid, binding, and enforceable. There is no contract that supercedes or takes precedence over the TOD. Defendants are entitled to their part of the funds pursuant to the TOD undiminished by any fees or costs.

After spending considerable time with this case over the last 15 months, the Court is convinced that the only equitable solution is to tax all attorney fees against Davenport’s share of the Scottrade account. Her claims and arguments have been rejected at every stage and she has repeatedly been warned that they appeared totally frivolous and unless she was able to provide admissible evidence, costs would be paid from her share. Her conduct is even more egregious considering that she is trained as an attorney and has previously been sanctioned for frivolous and vindictive litigation. It is well-established that courts have discretion to pay the interpleader plaintiff’s fees from the fund payable to the winning claimants, against the losing claimant or between all the claimants. The usual practice is to tax the fees against the losing claimant because it necessitated the interpleader and prevents the winning claimants from obtaining the fund undiminished by the costs. Absent Davenport’s groundless claims, LeFeber’s Scottrade account would long ago have been distributed pursuant to his TOD. Although the Court is not imposing sanctions under Rules 11(b) and 56(f) because there are other provisions to ensure that Shane’s and Faller’s inheritance are not depleted by this unnecessary suit, Davenport could also be assessed fees under both of those rules. Although it seems unfair, it is well-established that pro se litigants are not entitled to attorney fee awards. Thus Gibbons and Chabot are not entitled to fees for the time expended defending against Davenport’s frivolous claims.

In addition to $11,189.10 attorney fees & costs awarded to Faller and the $6,142.53 fees awarded to Scottrade, fees & costs incurred by Faller and Shane LeFeber shall be deducted from Davenport’s percentage of the Scottrade funds. Counsel for Faller and Shane shall submit bills detailing all reasonable fees & costs, and the Court will review them for reasonableness and then determine whether Defendants are entitled to pre-judgment interest. In the interests of caution, the Court intends to keep the Scottrade funds in the registry pending any appeal ruling. Since any appeal by Davenport would also be frivolous and in bad faith, the Court intends to tax attorney fees on appeal to her share of the funds.

Scottrade v. Davenport et al, 39 MFR 500, 6/5/12.

Tom Singer (Axilon Law Group), Billings, for Scottrade; Kristine Davenport, Missoula, pro se; Jeffery Oven & Michael Tennant (Crowley Fleck), Billings, for Shane LeFeber; Jon Beal & John Horrell (Beal Law Firm), Missoula, for Fallers; Christopher Gibbons, pro se; Kimberly Chabot, pro se.

PRELIMINARY INJUNCTION: Stay pending appeal in judicial political endorsement case denied… Lovell.

Sanders Co. Republican Central Committee seeks a stay pending interlocutory appeal of this Court’s denial of a preliminary injunction against the MCA 13-35-231 prohibition against political parties endorsing judicial candidates, on grounds of economy.

In the strikingly similar Renne (US 1991) the USSC stated: “The free speech issues argued in the briefs filed here have fundamental and far-reaching import. For that very reason, we cannot decide the case based upon the amorphous and illdefined factual record presented to us.” This case is set for trial 9/25/12. After the issues are tried and a well-developed record exists, an appeal may follow and complete relief be granted. This is judicial economy. The issues are significant and deserve determination based on a complete record. Motion to stay denied.

Sanders Co. Republican Central Committee v. Bullock and Murry, 39 MFR 498, 9/7/12.

Matthew Monforton, Bozeman, for the Committee: Asst. AGs Michael Black & Andrew Huff; MTLA members Amy Eddy (Bottomly Eddy & Sandler), Kalispell, and Michael Lamb (Lamb & Carey), Helena, for Intervenor/MTLA member Elizabeth Best (MSC candidate when the TRO application was filed).

INSURANCE: Trustee of trust which owned house damaged by fire not liable to gratuitous tenants for failure to insure or expedite repairs… Lynch/Molloy.

In 6/11 a fire damaged a house belonging to a trust of which Walter Wilmerding is trustee. Residents Theresa and Leah Joseph sued Wilmerding claiming he wrongfully failed to purchase homeowner’s insurance and did not timely repair the house after the fire. They asserted negligence (Count I), breach of contract (Count II), breach of the implied covenant (Count III), NIED (Count IV), IIED (Count V), and punitives (Count VI). Wilmerding moved for summary judgment on all counts except I. Magistrate Lynch recommends summary judgment as to II-V but denying it as to VI, largely because Wilmerding did not request summary judgment on the negligence claim. A review of Lynch’s findings & recommendation strongly suggested that Josephs’ negligence claim would fail because Wilmerding did not owe a duty to them. Wilmerding was invited to move for summary judgment on the absence of duty. A hearing on the motion took place 7/3. The motion for summary judgment is granted and, as a corollary, summary judgment is also granted as to the punitives claim.

Count II (breach of contract). Even assuming that Josephs had an implied contract with Wilmerding, he did not breach that contract. Any implied contract did not require him to purchase homeowner’s insurance, nor was he required to repair the house after the fire. Josephs are not entitled to relief under promissory estoppel. They did not make this claim in their complaint, the deadline for amending has passed, Rule 16(b), and they have not explained why they were unable to timely amend.

Count III (breach of the implied covenant). This fails because it is identical to the breach of contract claim — that Wilmerding failed to purchase insurance and repair the house.

Counts IV and V (NIED and IIED). Josephs were never treated for any emotional distress, and have failed to show that the alleged distress “was the reasonably foreseeable consequence” of any negligent or intentional act or omission by Wilmerding. Sacco (Mont. 1995).

Negligence. Josephs do not argue that Wilmerding owed them a fiduciary duty by virtue of his trustee status. That duty is owed to the trust beneficiaries. MCA 72-34-103; Hofer (Mont. 2005). Montana courts consider, in determining whether a duty exists, whether imposition of a duty comports with public policy and whether the defendant could reasonably have foreseen that his conduct could have resulted in injury to the plaintiff. In weighing policy considerations, they are to consider moral blame, prevention of future harm, burden on the defendant, consequences to the public, and availability & cost of insurance for the risk. Policy considerations weigh against imposing a duty to purchase homeowner’s insurance. Wilmerding allowed Josephs to live at the house rent free, and they essentially took it “as is.” Although every property owner has a duty to exercise “ordinary care or skill in the management of the person’s property,” MCA 27-1-701, there is a difference between making your property safe for others and insuring it in case it is not. Insuring property does not prevent harm that might be caused by its condition (e.g., insurance does not prevent house fires). Property insurance simply indemnifies the owner for that harm. That is not to say that 3rd parties never benefit from property insurance. A plaintiff in a premises liability case generally hopes that the owner has insurance so there is money from which to recover damages. However, the cause of action lies in the dangerous condition, not availability or procurement of insurance. Thus a property owner has no “moral blame” for failing to purchase property insurance which, by design, protects the owner and not 3rd parties. Unlike unsafe property, failure to purchase insurance does not pose a risk to 3rd parties. Failure to purchase insurance simply means that 3rd parties cannot look to insurance as a source from which to recover damages; they must look elsewhere (e.g., the owner’s personal money or property). In the same vein, failure to purchase insurance does not prevent future harm caused by the property’s condition. Fisher (Mont. 2008). It simply protects the property owner in case of future harm. A duty to purchase property insurance would place an expensive burden on owners. (The duty to purchase vehicle insurance is a statutory, not common law, duty, but even so, a suit claiming that failure to buy auto insurance caused damage in an MVA would also be futile.) Wilmerding might have been less likely to gratuitously allow Josephs to live at the house had he been required to insure it. The trust owned the house; there was no secured interest by a lender. While the trust beneficiaries may have claims based on trust law, the gratuitous occupants do not. Policy considerations also weigh against a duty by Wilmerding to more expeditiously repair the home after the fire. The parties have not argued that they had a rental agreement, which might trigger the statutory duty of a landlord to maintain and repair the house. MCA 70-24-303(1)(c). Even without the repairs (which were eventually made), the house was apparently habitable. Wilmerding could have ordered Josephs to leave at any time (setting aside any promissory estoppel or similar arguments), forcing them to leave an otherwise habitable house with nowhere to go instead of making repairs sooner. Few would dispute that greater “moral blame” would attach to that action compared to letting Josephs remain and later making the repairs. My reasoning is not intended to minimize the difficulties Josephs might have faced as a result of the fire, but their suit is analogous to suing someone for giving a bad gift. Assuming that one receiving a gift is not harmed by the gift, there is no legal remedy for receiving a bad gift; the only remedy is to not accept it. West (9th Cir. 1963) (applying Hawaii law and observing that a gratuitous occupant “receives the use of the premises as a gift, and comes under the old saying that you may not look a gift horse in the mouth.”). As to foreseeability, failure to purchase homeowner’s insurance creates a risk for the homeowner, not a 3rd party who has no contractual interest in the home. Even when there is a contractual relationship, such as landlord-tenant, the landlord does not have a common law duty to insure the property for the benefit of the tenant. Josephs were not in the “zone of risk” because Wilmerding’s failure to purchase homeowner’s insurance was not their risk to bear; it was Wilmerding’s risk as the trustee. His failure to timely repair the home arguably creates some risk to Josephs, but it is outweighed by the greater risk that he could have forced them to leave an otherwise habitable home instead of choosing to make the repairs sooner. Moreover, they were not foreseeable plaintiffs because they lived at the house “as is.” Absent an obligation to let them continue living at the house, there was no obligation to expeditiously make repairs for their benefit. Since they have no viable claims for actual damages, they have no claim for punitives. Lynch’s findings & recommendations are adopted in full as to Counts II-V. Summary judgment for Defendants on all counts. Jury trial set for 7/16/12 is vacated.

Joseph v. Wilmerding, 39 MFR 487, 7/9/12.

Johnna Baffa, Joshua Van de Wetering, and Laura Reed (Van de Wetering & Baffa), Missoula, for Josephs; Jeffry Foster & Maxon Davis (Davis, Hatley, Haffeman & Tighe), Great Falls, for Wilmerding.

ELECTIONS: Political committee’s challenge of §13-35-231 prohibition against endorsing judicial candidates (so it can transform nonpartisan elections into partisan elections and attack “left-leaning state judges”) unlikely to succeed on merits given present factual record, preliminaryinjunction denied, trial set… challenge justiciable even though Committee has not adopted by-laws allowing such endorsements… Lovell.

A goal of the Sanders Co. Republican Central Committee is to “promote the election of candidates to public office who share its ideological views.” “Given the increasing intrusions by left-leaning state judges into areas of policy traditionally reserved to the Legislature, [the Committee] desires to endorse judicial candidates for the primary and general elections in 2012.” MCA 13-35-231 states: “A political party may not endorse, contribute to, or make an expenditure to support or oppose a judicial candidate.” Consequently, the Committee claims that it has not publicly endorsed candidates and has often refrained from even discussing judicial candidates at Committee meetings. In 3/12 it wrote to CPP Murry stating that it believed it had a right to endorse judicial candidates under Citizens United (US 2010). Murry responded that he is obligated to enforce 13-35-231. The Committee applied for injunctive and declaratory relief and a TRO. The Court denied a TRO 6/1 and set a hearing 6/12 on the preliminary injunction application. The Committee confirmed at the hearing that the only part of 13-35-231 that it challenges is the prohibition against political party endorsements of judicial candidates.

Defendants argue that the case is not justiciable because the Committee has not adopted by-laws that would allow it to endorse judicial candidates. Eu (9th Cir. 1987, US 1989) held that a central committee does not need by-laws that permit a particular method of speech to challenge a statute that prohibits such speech:

Institutions are not required to make the empty gesture of passing rules that are void as a matter of law and ignored as a matter of institutional practice in order to satisfy standing requirements. Certainly a failure to make such a futile gesture gives us no grounds for inferring that the parties’ bylaws merely reflect a neat coincidence of what the parties want and what the statutes require.

At least in Montana there is good reason for this rule. If a central committee adopts a by-law permitting speech that is otherwise prohibited by statute, that itself is a violation of Montana law. §13-35-104.

The 1st Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United. However, a government may restrict political speech if it can show that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. The parties agree that Montana has a compelling interest in ensuring that its judiciary is independent and fair. This necessitates a nonpartisan judiciary. Mistretta (US 1989). The question becomes whether 13-35-231′s prohibition of party endorsements of judicial candidates is narrowly tailored to achieve that interest. Geary (9th Cir. 1990, en banc) held that a California statute prohibiting political parties from endorsing candidates for nonpartisan judicial offices violated the 1st Amendment. Although vacated by the US Supreme Court for lack of justiciability, its reasoning has persuasive value. It concluded that California’s statute was not narrowly tailored to achieve that interest:

Political parties as well as party adherents possess rights of expression and association under the first amendment, and the mere fact that §6(b) targets the collective rather than the individual voices of party members does not suffice to render it “precisely drawn.”

Judge Rymer, Judges Alarcon and Fernandez joining, dissented:

The fact that [the statute] targets the collective voice only with respect to endorsements for nonpartisan offices may render it drawn as precisely as it can be, for to preclude party endorsements in nonparty elections is the flip side of a candidate’s running for nonpartisan office without party identification.

As she observes, there might not be a way to more narrowly tailor these types of statutes. The Committee conceded this at the preliminary injunction hearing. If, contrary to 13-35-231, political parties were permitted to endorse nonpartisan judicial candidates, the elections might be nonpartisan only in form. Nonpartisan elections can perhaps be truly nonpartisan only if political parties are prohibited from endorsing the candidates. Citizens United supports Rymer’s dissent. It observed that the USSC has “upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons” where the restrictions “were based on an interest in allowing governmental entities to perform their functions.” As Rymer’s dissent suggests, it might not be possible for a nonpartisan judicial election to function if political parties are allowed to endorse candidates:

A nonpartisan structure abandons the political party as a conduit for the electorate’s views. Nonpartisanship envisions direct representation of citizens rather than indirect representation through parties as intermediaries.

The Committee’s express objective is to use endorsements to transform Montana’s nonpartisan judicial elections into functionally partisan elections and attack “left-leaning state judges.” The Court agrees with Rymer’s analysis and concludes that — at this point in the litigation — the Committee is not likely to prevail on the merits. The public interest and equities also counsel against an injunction.

There is an obvious interest to both the public and the Legislature in having judicial candidates free of the appearance of impropriety. An appearance of partisanship will hardly foster public confidence in the courts. CDF (SD Fla. 1978)

Further, there is no record at this point to guide the Court’s decision. Rymer observed the same problem:

It is particularly troubling in this case that there is virtually no record. There is, for example, no evidence showing whether the relative voice of political parties has been unduly significant or influential in nonpartisan elections where endorsements have occurred. Nor is there any evidence bearing on feasibility of alternate means to aid the state’s interest. The absence of a record leads inexorably to judges judging on their own instinct or experience.

When Geary was before the USSC, it similarly observed:

The free speech issues argued in the briefs filed here have fundamental and far-reaching import. For that reason, we cannot decide the case based upon the amorphous and illdefined factual record presented to us.

This reasonably suggests that the USSC did not agree with the 9th Circuit’s conclusion on the same Geary record — the record was insufficient to warrant the relief granted. Montana has apparently successfully utilized a nonpartisan election system to choose its judges for decades. Here also, the free speech issues have “fundamental and far-reaching import,” which this Court ought not decide without a complete record. The Committee might ultimately succeed on the merits, but success is unlikely at this point and absent a well-developed record.

Preliminary injunction denied. Bench trial is set for 9/25/12.

Sanders Co. Republican Central Committee v. Bullock and Murry, 39 MFR 474, 6/26/12.

Matthew Monforton, Bozeman, for the Committee: Asst. AGs Michael Black & Andrew Huff; MTLA members Amy Eddy (Bottomly Eddy & Sandler), Kalispell, and Michael Lamb (Lamb & Carey), Helena, for Intervenor/MTLA member Elizabeth Best (candidate for the MSC when the TRO application was filed).

PUBLIC LIBRARY: Disruptive patron’s privileges properly terminated… officer entitled to qualified immunity in investigating criminal trespass on library property… no showing of standard of care or that it was breached by library and officers reacting to banned patron’s aggressive conduct… Molloy.

Magistrate Lynch recommended that Defendants’ motions for summary judgment be granted in part and denied in part. He determined that disputed material fact issues remained as to whether Officer Snavely negligently investigated Michael Spreadbury’s purported trespass on Bitterroot Public Library property, whether Officer Bruner-Murphy negligently investigated allegations that he was stalking the Library Director, and whether Library Chairman Robert Brophy negligently revoked his library privileges, and denied summary judgment on Spreadbury’s claims for punitives and injunctive relief relating to access to the Library. (It is important to note that Lynch did not find any defendant liable for negligence, contrary to Spreadbury’s assertions. When a judge denies one party’s motion for summary judgment, summary judgment is not automatically granted for the other party.) The Library and Hamilton filed objections and Spreadbury filed a response which appears to include objections to Lynch’s findings. The parties are entitled to de novo review of findings or recommendations to which they object and clear error review as to the rest.

 

 

Spreadbury’s Objections 

 

A. Termination of library privileges. Spreadbury was not wrongfully deprived of his statutory and constitutional liberty interest in the right to use a public library. He intimidated Library staff and patrons after it refused his request to include a letter he had written to Pres. Obama in its collection. We all have a right to use our public libraries. Kreimer (3rd Cir. 1992). But the right is not unqualified. Id. One may be deprived of a liberty interest if afforded due process, and Spreadbury was granted adequate procedural protections. Pinnacle Armor (9th Cir. 2011). Lynch properly identified the Library as a limited public forum,

obligated only to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government’s intent in designating the Library as a public forum. Kreimer.

A public library may refuse service to anyone who willfully violates a library policy. MCA 22-1-311. The Library Operation Policy stated:

Patron behavior that becomes disruptive to other library users or staff or constitutes a public nuisance is not allowed and the person(s) will be asked to leave. The library reserves the right to refuse service to anyone not complying with established library policies.

Contrary to Spreadbury’s assertions, the policy does not state that the Library may only refuse service to a disruptive patron if it has previously asked him to leave. He willfully engaged in behavior that became disruptive. At least twice he confronted staff in an intimidating manner. His reference to the Unabomber in a letter to the director could reasonably be construed as threatening. Willfulness “does not require any intent to violate the law or injure another.” MCA 1-1-204(5). It is enough that he had a “purpose of willingness,” id., to confront staff and reference the Unabomber, and a reasonable person would see his behavior as disruptive. Accordingly, he violated a Library policy, and it could refuse service as long as it provided notice and opportunity to be heard. Hill (MD Pa. 2006). Based on repeated disruptive incidents that frightened staff, he was given written notice that he was banned and told why. He was afforded an opportunity to be heard. He emailed a member of the Board requesting permission to attend a meeting to argue that his rights should be restored, and he submitted a Reconsideration Request Form demand that his letter be accepted into the collection. The Library considered and denied his requests for reconsideration, and the Board supported the decisions. The ban furthered the government’s significant interest in maintaining the peaceful character of a library. Brown (US 1966) (a library is “a place dedicated to quiet, to knowledge, and to beauty”). The Library was not required to follow the specific procedures that Spreadbury believes it should have, and it provided sufficient process to protect his limited liberty interest. “Prohibiting disruptive behavior is perhaps the clearest and most direct way to achieve maximum Library use.” Kreimer. Spreadbury continued to engage in disruptive behavior, resulting in a criminal trespass charge, an order of protection that was affirmed by the Montana Supreme Court, and his nolo plea to felony intimidation.

B. Qualified immunity of officers. Spreadbury disputes Lynch’s finding that Snavely, who investigated him for trespassing on Library property, is entitled to qualified immunity. He insists that there is a clearly established constitutional right not to be investigated for trespass on public property. However, there is no clearly established right to be free from investigation, and the trespass charge was not clearly precluded under Montana law. There is no constitutional right not to be investigated by law enforcement for suspected violations of the law. O’Brien (US 1984). Spreadbury argues that it is not a violation for a member of the public to be on public land even if he has been banned from the property. Even assuming there is a right not to be investigated for noncriminal conduct, it is not clearly established under Montana law that criminal trespass is inapplicable on public land. A person commits criminal trespass if the person knowingly enters or remains unlawfully in or upon the premises of another. MCA 45-6-203(1). “Property of another” includes real property “in which a person other than the offender has an interest that the offender has no authority to defeat or impair, even though the offender may have an interest in the property.” MCA 45-2-101(62). The privilege to enter on the premises of another “may be revoked at any time by personal communication of notice by the landowner or other authorized person.” 45-6-201(1). And a library is authorized to restrict access to patrons if procedural protections are observed. Kreimer. Spreadbury entered on public library property — in which other members of the public also have an interest that he has no authority to defeat or impair — after his privilege had been properly revoked. This satisfies the definition of criminal trespass. In Blakely (Mont. 1979), which held that criminal trespass had not occurred where the property was open to the public, the defendant had not been banned for violating rules of the agency responsible for it. Thus neither case law nor the criminal trespass statute clearly establishes that a criminal trespass charge is not applicable on public land. Snavely is thus entitled to qualified immunity for his decision to investigate Spreadbury for trespass. For these reasons, and for the reasons discussed by Lynch, all the City officers are entitled to qualified immunity.

C. Malicious prosecution. Spreadbury fails to provide any reason to reject Lynch’s conclusion that probable cause for the trespassing charge existed as a matter of law, negating the 3rd element of a malicious prosecution claim. Plouffe (Mont. 2002).

D. Negligent & intentional infliction of emotional distress. Spreadbury gives no reason to reject Lynch’s reasoning and points to no evidence that would support this claim, but merely re-alleges that “stress caused permanent impairment” of his health, and failed to make the threshold showing that his emotional distress is “serious or “severe.” Jacobsen (Mont. 2009).

 

 

The City’s and Library’s Objections 

 

A. Negligence. Spreadbury alleges that Snavely and Bruner-Murphy acted negligently in investigating and preparing police reports as to accusations that he was criminally trespassing on Library property and stalking the director. He alleges that Snavely should have known that it is not illegal for a member of the public to be on public property and that Bruner-Murphy should have known that he did not commit the crime of stalking in part because he has never met the alleged victim. He also alleges that the Board acted negligently in revoking his right to use the Library. He alleges that Brophy should have known that he was never asked to leave the Library and did not willfully violate any Library policies, and that Brophy ignored his request for reconsideration. Lynch recommended denying summary judgment as to these claims. He found that the municipal Defendants (the Library, City of Hamilton, Brophy, Trista Smith, Nansu Roddy, Jerry Steele, Snavely, and Bruner-Murphy) failed to address breach, causation, and damages, and he rejected their argument that they did not owe Spreadbury a duty under the public duty doctrine. He predicted that the MSC would not apply the public duty doctrine when a government agent “is not merely performing a general duty to protect citizens from private harms but is instead acting affirmatively towards a plaintiff and is, him or herself, the injurious force that caused harm to the plaintiff.” He also predicted that the MSC would conclude that the public duty doctrine “does not protect a law enforcement officer from liability for harm caused by a negligent criminal investigation as to the subject of the investigation.” Assuming, without deciding, that Lynch is correct that the municipal Defendants owed Spreadbury a duty, the facts do not establish what that duty is or if it was breached. These claims involve a sort of professional malpractice, requiring a jury to decide what a reasonable Library board or police officer would do in each situation. There is no expert testimony to establish what duty an officer owes in investigating or reporting on a call for assistance or what duty a library owes in revoking a patron’s library privileges. The City and Library are also entitled to summary judgment as to breach. The evidence underlying the negligence claims is the same as that underlying the constitutional claims. It was discussed in the City’s and Library’s summary judgment briefing and laid out in their statement of undisputed facts. Spreadbury fails to raise a genuine dispute over any material fact in his response. In their objections before this Court, the City and Library explained how the facts demonstrate that they did not breach a duty, if they have one. Spreadbury had the opportunity to counter but failed to do so. Accordingly, the issue of breach has been fully briefed and is properly before the Court.

1. The Library. There is no evidence to suggest that the Library owed any duty toward Spreadbury. The undisputed facts demonstrate that he engaged in multiple confrontations with staff, and after he had been banned, with staff and patrons. He requested that it maintain a letter he had written to Obama in its collection. The first time his request was refused by a staff member he became animated and “a bit scary.” The staff member reported the incident to the director. Spreadbury then wrote to the director again demanding that his letter be placed in the collection, making a veiled reference to the Unabomber:

Let me remind you both that in 1995 a “personal letter” was published and available at national libraries which advocated violence, and condoned murder. The letter ended up being from Lincoln, Montana.

The director again denied his request and explained that his letter is not authoritative or objective and that other avenues are available to voice his opinions. 2 days later he confronted another staff person. This time his “tirade” was so frightening that the staff member had to be allowed to go home to calm down, and she reported the incident to police. Another staff member who witnessed this “tirade” agreed that his conduct was “despicable” or “pitiful.” Although Spreadbury insists that this behavior was not disruptive, it objectively disrupted the staff’s ability to do their work and their sense of safety. The director decided to terminate his privileges in accordance with the policy and MCA 22-1-311. Spreadbury has not raised any material fact suggesting that the Library acted negligently. His only arguments concern legality of the Library’s process, which is addressed in the discussions of due process above and in Lynch’s findings & recommendations.

2. Officer Snavely. Spreadbury was notified by letter 6/11/09 that he was no longer allowed in the Library building or on the grounds. He was seen in the gazebo 8/20 and the director reported that he was trespassing. Snavely spoke with Spreadbury, warned him not to return to the Library, and took a report. Spreadbury voluntarily left. Later that day he met with Snavely at City Hall and was again warned not to return to the Library. He returned that day, ultimately confronting a patron, Ms. Cassens, demanding to know if she had talked with police and her name and phone number. (Cassens reported that he may have stayed on the sidewalk during the confrontation). He yelled at her, making her and 2 witnesses nervous. He left but returned with a video camera and began filming Cassens. When she reported the incident to staff, the director again called police. Snavely interviewed Cassens, 2 witnesses, and the director, and prepared another report. No evidence suggests that the interviews were conducted negligently or that Snavely misrepresented or omitted anything he saw or learned. He clearly explained that Spreadbury had been banned from the Library. Again, Spreadbury’s argument is purely legal — he insists that Snavely “should have known” that it is not possible to criminally trespass on public property. However, it is not clear under Montana law that criminal trespass is inapplicable on public land, and no evidence suggests that Snavely interfered with the Prosecutor’s independent judgment in deciding to press charges.

3. Officer Bruner-Murphy. The director contacted the PD to make a complaint that Spreadbury was “stalking” her. She described his conduct to Bruner-Murphy and provided several documents representing the conduct. Bruner-Murphy explained the procedure for filing for an order of protection and prepared a report based on the interview and documents. No evidence suggests that he misrepresented or omitted anything, no charges were ever filed as to this report, and Spreadbury has alleged no damages relating to the investigation. Because the undisputed facts do not establish the relevant standard of care or that it was breached, the municipal Defendants are entitled to summary judgment as to each of Spreadbury’s negligence claims.

B. Punitives/injunctive relief. Because all of Spreadbury’s claims against the municipal Defendants fail, he is not entitled to injunctive relief or punitives.

Lynch’s findings & recommendations are adopted in part and rejected in part based on additional briefing. All claims against the municipal Defendants are dismissed with prejudice.

Spreadbury v. Bitterroot Public Library, Hamilton, et al, 39 MFR 456, 5/30/12.

Michael Spreadbury, Hamilton, pro se; Natasha Jones, Thomas Leonard, Tracey Johnson, and William Crowley (Boone Karlberg), Missoula, for Defendants.