DA 19-0440

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 173N

ELAINE MITCHELL,

 Plaintiff and Appellant,

 v.

GLACIER COUNTY; GLENDA HALL, Glacier County

Clerk and Recorder; and MICHAEL DESROSIER,

Glacier County Commissioner,

 Defendants and Appellees.

APPEAL FROM: District Court of the Ninth Judicial District,

In and For the County of Glacier, Cause No. DV-2017-58

Honorable Jon A. Oldenburg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

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

For Appellees:

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

Submitted on Briefs: May 6, 2020

 Decided: July 7, 2020

Filed:

__________________________________________

Clerk

q3,,---, 6mal•-.— 4(

07/07/2020

Case Number: DA 19-0440
2

Chief Justice Mike McGrath delivered the Opinion of the Court.

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

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

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

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

Reports.

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

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

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

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

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

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

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

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

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

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

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

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

 

1 Mitchell conceded this claim and does not raise the issue on appeal.

2 The dispute between these parties is extensive and ongoing. The Hall complaint was filed 

in an environment of criticism by Mitchell of Ms. Hall and the Commissioners for alleged poor 

management of county government and incompetence.
3

that the complaint failed to include an allegation that states a violation of law or rule 

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

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

and no further action was taken. 

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

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

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

1182 (1981). 

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

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

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

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

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

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

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

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

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

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

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

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

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

Fair Practices claim, that the County discriminated against her, Mitchell again fails to 
4

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

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

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

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

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

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

precedent or modify existing precedent.

¶7 Affirmed. 

/S/ MIKE McGRATH

We Concur: 

/S/ JIM RICE

/S/ INGRID GUSTAFSON

/S/ BETH BAKER

/S/ DIRK M. SANDEFUR

 

3 Mitchell also pressed her discrimination complaint with the Montana Human Rights 

Bureau; the Bureau “found no reasonable cause to believe that discrimination occurred” and 

dismissed the complaint on July 18, 2017.