No. 90-268 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

SIDNEY P. KURTH, 

Plaintiff and Appellant, 

GREAT FALLS TRIBUNE COMPANY and 

COWLES MEDIA COMPANY, its parent 

company, 

Defendants and Respondents 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James Graves; Stephens & Graves; Billings, Montana 

For Respondents: 

Peter Michael Meloy, Helena, Montana 

Filed: 

Submitted on Briefs: November 15, 1990 

Decided: January 10, 1991 
Justice Fred J. Weber delivered the Opinion of the Court. 

The plaintiff, Sidney P. Kurth (Kurth) brought this action for 

defamation in the Eighth Judicial District, Cascade County, seeking 

damages suffered as a result of an article published by the 

defendant, Great Falls Tribune (Tribune). The District Court 

granted summary judgment in favor of the Tribune. We reverse and 

remand for further proceedings consistent with this opinion. 

The issues presented are: 

1. Did the District Court err when it determined that Kurth 

is a public figure as a matter of law? 

2. If Kurth is a public figure, did the Tribune act with 

actual malice? 

Kurth brought this action against the Tribune for defamation 

arising out of a newspaper article which appeared in the Tribune 

on February 3, 1984. The article reported that Kurth was sought 

for at least nine llcriminalw charges. The falsity of the 

publication was acknowledged by retraction on December 14, 1985. 

The article was one of a series of news stories arising out 

of the activities of Multi-Management Corporation (MMI) and its 

principles, including an MMI corporate officer, Karl Herrman, and 

MMI1s legal counsel, Sidney Kurth. In early February of 1984, a 

local Great Falls television station reported that Herrman and 

Kurth had been evicted from their London apartment where they were 

purportedly staying while attempting to negotiate a $350 million 

loan in behalf of MMI to build a large grain processing plant in 

Great Falls. A reporter for the Tribune was assigned to watch the 
television news report and write a story for the next morning's 

paper. The reporter watched the television report and wrote the 

story which is the subject of this lawsuit. The story reported the 

eviction of Herman and Kurth. In deposition, the reporter 

testified he was certain that the television report mentioned other 

Kurth I'charge~~~ but was unable to remember whether the story 

characterized them as wcriminal.ll 

As background for the story, the reporter read a number of 

previous stories on the MMI activities and the troubles associated 

with the principles of MMI. Because the reporter was close to 

deadline, he failed to verify that Kurth was sought for "criminal" 

charges. 

Kurth seeks special damages for loss of income, impairment of 

employability, and loss of professional standing as an attorney in 

a sum to be determined at time of trial. He also seeks general 

compensatory damages and punitive damages. 

Did the District Court err when it determined that Kurth was 

a public figure as a matter of law? 

A summary of the history of defamation law in the United 

States, and in particular in Montana, is in order. 

There are two status categories that have emerged in United 

States Supreme Court decisions that determine the amount of fault 

that plaintiff must prove in order to recover in a defamation 

suit. If the plaintiff was a public figure at the time of the 

alleged libel, then he cannot recover unless he can show the 
I i . 

statement was made with actual malice. New York Times v. ~ullivan 

(1964), 376 U.S. 254, 279-280. public figures are subdivided into 

two subcategories, public figures for all purposes and public 

figures for a limited purpose. All purpose public figures have 

achieved such pervasive fame and notoriety that they become public 

figures for all purposes and in all contexts. Limited purpose 

public figures have voluntarily injected themselves or were drawn 

into a particular public controversy and thereby become public 

figures for that limited range of issues. Gertz v. Robert Welsh, 

Inc. (1974), 418 U.S. 323. In either case, public figure 

plaintiffs must show the statement was made with actual malice 

which means it was published "with knowledge that it was false or 

with reckless disregard of whether it was false or not." New York 

Times, 376 U.S. at 280. 

The second status category is that of private figures. This 

category has also been divided into two subcategories by the united 

States Supreme Court. A private figure is usually not involved in 

any matter of public concern. However, a private figure may be 

involved in a matter of public concern and remain a private figure. 

Milkovich v. Lorain Journal Co., (1990), 110 S.Ct. 2695, 2704, 

2707, 111 L.Ed.2d 1, 15, 19. A private figure must show some 

degree of fault to recover from a publisher or broadcaster but does 

not have to prove actual malice except to recover presumed or 

punitive damages. Gertz v. Welch, 418 U.S. 323, 347, 349. 

In the case at bar, the controversy is a matter of public 

concern as evidenced by the news media coverage of MMIts activities 
over a period of several years. The issue is whether Kurth became 

a public figure through his involvement with MMI or whether he 

remained a private figure throughout. An attorney does not become 

a public figure merely because he represents a client who is of 

concern to the public. Gertz, 418 U.S. 323; adi is on v. Yunker 

(1978), 180 Mont. 54, 66, 589 P.2d 126, 133. The District Court 

determined that Kurth was involved with MMI as more than an 

attorney and had become a public figure as a matter of law. 

Private figures become public figures when they "thrust themselves 

to the forefront of particular public controversies in order to 

influence the resolution of the issues involved." Gertz, 418 U.S. 

In Montana, questions of law, as well as questions of fact, 

are questions for the jury in libel and slander cases. 

In Gertz v. Robert Welch, Inc.! supra, it was held that 

a lawyer was not a public official, although he had taken 

on a prominent case and was by virtue of his profession 

an officer of the court. Likewise, it may be contended 

in the retrial that Madison is a "public figure.I1 

Whatever his status, it is a question for the jury to 

determine, because of the constitutional provision that 

the jury under the instructions of the court is the judge 

of both law and fact. Article 11, Section 7, 1972 

Montana Constitution. With appropriate instructions, the 

jury can determine these matters and their status in any 

trial, unless otherwise stipulated. (Emphasis supplied.) 

Madison v. Yunker (1978), 180 Mont. 54, 66, 589 P.2d 126, 133. 

Article 11, Section 7 of the 1972 Montana Constitution states: 

Section 7. Freedom of speech, expression, and 

press. No law shall be passed impairing the freedom of 

speech or expression. Every person shall be free to 

speak or publish whatever he will on any subject, being 

responsible for all abuse of that liberty. In all suits 

and rosec cut ions 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. (Emphasis supplied.) 

For a jury to determine the law is unique to libel and slander 

cases, and has been a part of Montana constitutional law since the 

Constitution was first adopted in 1889. In Griffin v. Opinion 

Publishing Co. (1943), 114 Mont. 502, 512, 138 P.2d 580, 586, this 

Court interpreted the provision by stating: 

While our Constitution like that of Missouri, 

Colorado, South Dakota and Wyoming provides that in libel 

suits "the jury, under the direction of the court, shall 

determine the law and the factsftl yet the decisions 

clearly show that the function of the court and jury is 

not greatly different in the trial of libel from what it 

is in other cases. 

In other words, 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 a directed verdict; upon motions for 

a new trial and upon motions to set aside verdicts or 

vacate judgments . 

In Williams v. Pasma (1982), 202 Mont. 66, 656 P.2d 212, this 

Court held that it is also appropriate for the court to grant 

summary judgment in libel and slander cases when there are no 

material issues of fact and the evidence supports the judgment as 

a matter of law. 

That is not the situation with the case at bar. In its 

Opinion and Order dated March 30, 1990, the District Court listed 

the following factors on which it based its finding that Kurth is 

a public figure as a matter of law: 

This Court bases its findings upon the following: 

(1) Mr. Kurth was the registered agent, assistant 

secretary, director and incorporator in 1979 of 

International Food and Fuel Manufacturing Co., Inc. This 

corporation was consolidated with Multi-Management, Inc. 

(Exhibit .5 to Defendant's motion for summary judgment and 
Sidney Kurth Deposition p. 9). Sidney Kurth was 

representing I.F. F. at a presentation to raise money for 

a grain processing plant. This process was taken over 

by Multi-Management when the consolidation with I.F.F. 

occurred. In the process of consolidation, Sidney Kurth 

became an attorney for Multi-Management together with 

Karl Herrman, Sr. Plaintiff Kurth became a shareholder 

in Multi-Management, Inc. and served on committees for 

Multi-Management. He was unsure whether he had ever been 

an officer in MMI. (Kurth Deposition p. 9-10) 

(2) The Multi-Management story was a newsworthy item in 

the Great Falls area from the beginning. (Exhibits 7, 

8, 9, 10, 12, 13, 14) (Sweeny Deposition p. 19) 

(3) On February 19, 1982, the State Auditor's office 

filed suit in district court in Great Falls charging MMI 

and its various agents and representatives with 

violations of the State's securities laws. The 

violations charged included both registration violations 

and fraudulent practices. A temporary restraining order 

was issued on February 19, 1982 prohibiting further sales 

of securities by Multi-Management, Inc. and its agents 

and representatives and prohibiting Multi-Management and 

its agents and representatives from attempting to raise 

money. On August 25, 1982, Judge McCarvel ordered MMI 

officials to show cause why they should not be held in 

contempt for violation of the restraining order (CDV82-171). 

(4) Among the violations charged by the State Auditor was 

the issuance, on May 12, 1982, of stock certificates to 

Sidney Kurth. The State Auditor further alleged that on 

May 12, 1982, Karl Herrman had, in Sidney Kurthls off ices 

in Billings, Montana, issued stock to various other 

persons. (CDV-82-171) 

(5) On October 13, 1982, Judge Roth entered his Findings 

of Fact and Conclusions of Law finding Karl Herrman, Jr. 

in contempt of Court. (CDV-82-171) 

(6) Sidney Kurth and Karl Herrman, Jr., were in Europe 

at this time attempting to secure financing for MultiManagement, Inc. Sidney Kurth and Karl Herrman, Jr. 

remained in Europe for a period of two (2) years meeting 

with various European and Arab sources attempting to 

secure loans. (Kurth Deposition p. 10-40) While there, 

Sidney Kurth ran up a bill of $66,000.00 on his personal 

credit card for expenses. (Kurth Deposition, p. 39) 

(7) In February of 1983, Sidney Kurthts law firm in 

~illings was closed due to Mr. Kurthls Multi-Management 
activities. Mr. Kurth was no longer named as a partner 

or associate. 

(8) In June of 1983, Kurth was sued by a client for 

malpractice. He was also the subject of a number of 

actions for debt collection. 

(9) In 1983, Multi-Management, Inc. and Multi-Management 

officers Karl Herman, Jr., Warren Hill, and Robert 

Montforten were indicted by a federal grand jury. 

(United States ~istrict Court for the District of 

Montana, Great Falls Division CR-83-42-GF) 

In determining whether Kurth became a public figure or 

remained a private figure, the factfinder must look to the nature 

and extent of his participation in the particular controversy 

giving rise to the defamation. Gertz, 418 U.S. at 352. Factors 

1-6 and 9, as listed by the District Court, may be evidence that 

the MMI story was a matter of public concern but the trier of fact 

must establish if and how Kurth was involved to the degree required 

to make him a public figure and not merely a private figure who was 

representing his client. Factors 7 and 8 and the last sentence of 

factor 6 are irrelevant because no facts were presented showing 

these factors were ever a matter of public knowledge. 

Rule 52(a), M.R.Civ.P., in relevant part states: 

. . . Findings of fact and conclusions of law are 

unnecessary on decisions of motions under Rules 12 or 56 

or any other motion except as provided in Rule 41(b). 

However, any order of the court granting a motion under 

Rules 12 or 56 which is appealable to an appellate court 

shall specify the srounds therefor with sufficient 

particularity as to apprise the parties and the appellate 

court of the rationale underlvins the rulinq and this may 

be done in the body of the order or in an attached 

opinion. The court may require any party to submit 

proposed findings of fact and conclusions of law for the 

court's consideration and the court may adopt any such 

proposed findings or conclusions so long as they are 

supported by the evidence and law of the case. (Emphasis 

added. ) 
The ~istrict Court's factors do not specify with sufficient 

particularity the rationale underlying its ruling that Kurth is a 

public figure as a matter of law to support a summary judgment. 

In addition, our review of the record convinces this Court that a 

genuine issue of material fact does exist as to whether Kurth 

became a public figure for a limited purpose or remained a private 

figure involved in a matter of public concern. We conclude that 

under both Rule 52 (a) and Article 11, Section 7 of the Montana 

Constitution there remain issues of material fact for determination 

by a jury. 

We hold that the District Court erred when it determined that 

Kurth was a public figure as a matter of law. Since our holding 

disposes of the appeal there is no need to address whether the 

Tribune acted with actual malice. 

We reverse and remand for further proceedings consistent with 

this opinion. 

We Concur: