No. 86-539 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DENNY DRISCOLL BOYS HOME, a 

Montana corporation and WILL 

AND DAISY BRAISER BOYS RANCH, 

a Montana corporation, 

Plaintiffs and Appellants, 

-vsTHE STATE OF MONTANA; THE DEPARTMENT 

OF SOCIAL AND REHABILITATION SERVICES 

OF THE STATE OF MONTANA: THE DEPARTMENT 

OF THE ATTORNEY GENERAL OF THE STATE OF 

MONTANA: THE DEPARTMENT OF JUSTICE OF THE 

STATE OF MONTANA; MIKE GREELY; KEITH L. 

COLBO and FRITZ BEHR, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby, Butte, Montana 

For Respondent: 

John Maynard, Dept. of Administration, Tort Claims 

Div., Helena, Montana 

Submitted on Briefs: March 12, 1987 

Decided: June 4, 1987 

Filed: JuN 4 - 4987 

B 

J*, dClerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiffs appeal the order for summary judgment granted 

by the District Court, First Judicial District, County of 

Lewis and Clark. We affirm the District Court's order. 

Plaintiffs Denny Driscoll Boys Home and Will and Daisy 

Braiser Boys Ranch, both Montana corporations, filed a libel 

action against defendants State of Montana, its agencies and 

agents for alleged libelous statements published in various 

Montana newspapers. Plaintiffs' sole issue on appeal is 

whether the District Court erred in granting summary 

judgment . Under Rule 56 (c) , M. R.Civ.P., summary judgment shall be 

granted "if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a 

judgment as a matter of law." The moving party has the 

burden of making a clear showing of the complete absence of 

any genuine issue of material fact. Harland v. Anderson 

(1976), 169 Mont. 447, 450, 548 P.2d 613, 615. ~aiser v. 

Town of Whitehall (Mont. 1986), 718 P.2d 1341, 1342, 43 

St.Rep. 846, 848. Once the moving party has met this initial 

burden of proof, the burden shifts to the party opposing the 

motion, who then must come forward with substantial evidence 

raising a genuine issue of material fact. Harland v. 

Anderson, 169 Mont. at 451, 548 P.2d at 615. Bare assertions 

and conclusory statements are not sufficient to defeat a 

motion for summary judgment. Small v. McRae (1982), 200 

Mont. 497, 522, 651 P.2d 982, 995. 

It appears that the allegations of libel stem from a 

letter written August 21, 1979 by Norma Vestre, Bureau Chief 
of the Social Services Bureau, to Reverend J. F. Finnegan, 

director of the Home and Ranch corporations. The letter 

informed Rev. Finnegan that pursuant to Department of Justice 

investigations of alleged criminal activity at the Home, the 

Department of Social and Rehabilitation Services would not 

renew the licenses for the Home and the Ranch. The letter 

enumerated eight alleged criminal activities and several 

child care regulation violations which were under 

investigation. Carbon copies of the letter were sent to 

attorneys for Rev. Finnegan and the Home, the Director of 

SRS, and an SRS employee involved in the investigation. 

As a result of the letter, the plaintiffs requested an 

administrative hearing on the nonrenewal. The SRS letter was 

admitted into evidence on September 28, 1979, by stipulation 

of the parties at a pre-hearing conference. The relicensure 

proceedings were subsequently dismissed in November, 1979, 

through the withdrawal of the license applications and the 

withdrawal of appearances by the Home and Ranch corporations. 

The Home and Ranch corporations do not argue that the 

letter as sent to the six parties above or as admitted into 

evidence constitutes libel. Rather, they argue that 

newspaper articles which reported the investigations and 

allegations of criminal activity are based on statements made 

by the agents of the State of Montana. 

All of the statements made directly by the agents of the 

State to the press acknowledged investigations were being 

conducted and charges would be filed against Rev. Finnegan. 

These were true statements. None of the agents' statements 

made reference to the eight specific criminal activities 

enumerated in the SRS letter. The mention of the alleged 

criminal activities which appeared in the newspaper articles 

was taken from the SRS letter which had been admitted into 

evidence at the administrative hearing. Under S 2-6-101, 
MCA, the letter became a public writing upon being admitted 

into evidence on September 28, 1979. Under 5 2-6-102, MCA, 

every citizen has a right to inspect and take a copy of 

public writing of this state. Further, affidavits submitted 

by state agents Judith H. Carlson, Fritz 0. Behr, Keith L. 

Colbo and Mike Greely all state that no communication of 

specific criminal charges had been made by any state agent to 

the press or mass media. 

Libel is defined by statute as "a false and unprivileged 

publication . . . 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." Section 27-1-802, MCA. A privileged 

publication includes one made in the proper discharge of an 

official duty. Section 27-1-804 (1) , MCA. Where a public 

officer is acting within the scope of his or her authority, 

his or her communication within that scope is privileged. 

Storch v. Board of Directors of the Eastern Montana Region 

Five Mental Health Center (1976), 169 Mont. 176, 182, 545 

P.2d 644, 648 (citing Barr v. Matteo (1959), 360 U.S. 564, 

571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434, 1441). 

Based on the foregoing, we hold that plaintiffs did not 

sustain their burden of proof that genuine issues of material 

fact exist to be tried, and therefore defendants are entitled 

to judgment as a matter of law. All statements made by 

defendants were communications made in the proper discharge 

of their official duties. Section 27-1-804(1), MCA. 

The order of the District Court is affirmed. 

We Concur: