DA 07-0006

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 274N

RICHARD E. HARP and LaVONNE K. HARP,

 Plaintiffs and Appellants,

 v.

KAREN MATTHEWS (formerly Handley),

 Defendant and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDV 05-015,

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard E. Harp, Sr., and LaVonne K. Harp, pro se, Great 

Falls, Montana

For Appellee:

Roger T. Witt, Ugrin, Alexander, Zadick & Higgins, P.C.,

Great Falls, Montana

Submitted on Briefs: September 12, 2007

 Decided: October 22, 2007

Filed:

__________________________________________

Clerk

October 22 2007
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal 

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

Court and its case title, Supreme Court 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 Richard E. Harp (Harp) and LaVonne K. Harp appeal from the District Court’s 

order granting summary judgment to Karen Matthews (Matthews) and denying Harp’s 

motion for summary judgment. We affirm. 

¶3 On August 7, 2003, Harp made final preparations to close off a road that ran 

through his property. The road was used by Harp and his neighbors. Some of Harp’s 

neighbors disputed that Harp could legally close the road. As Harp was installing a gate, 

his neighbor, Merle Christiansen, drove up and argued for ten to fifteen minutes with 

Harp about the road closure. Harp became convinced that Christiansen was not going to 

leave, and Harp stated, “How are you going to stop us?” Christiansen responded, 

“You’re just not going to do it[.]” Harp then retrieved a .357 pistol from his vehicle and 

strapped on a gun belt. Harp notified Christiansen that Harp was a federal law 

enforcement officer and ordered him to leave the property. Christiansen responded, “I’m 

not leaving, so what are you going to do, shoot me?” Harp answered, “Only if 
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necessary,” and then informed Christiansen that Harp was placing him under citizen’s 

arrest for criminal trespass. 

¶4 Harp’s wife contacted law enforcement and Cascade County Sheriff’s Deputy 

Matthews and another deputy responded. During the investigation, Harp informed 

Deputy Matthews that he was with U.S. Immigration. Matthews interviewed Harp and 

Christiansen and determined that the dispute centered on the existence of an easement 

over Harp’s land. After reaching a tentative resolution between the neighbors, the 

deputies left the scene.

¶5 At her captain’s suggestion, Matthews contacted the Department of Homeland 

Security (DHS) to verify Harp’s employment. DHS confirmed Harp’s employment and 

requested a copy of Matthews’ incident report. Matthews provided DHS a copy of the 

report after receiving authorization from the Undersheriff. Matthews had no further 

contact with DHS.

¶6 In November 2003, Harp’s supervisor interviewed Harp about the incident and, 

soon after, Harp’s employment was terminated. DHS informed Harp that he was being 

terminated because he had failed to demonstrate the necessary traits of a DHS law 

enforcement officer. The termination letter specifically referenced the August 7, 2003 

incident, stating:

[T]wo Deputies from the Cascade County Sheriff’s Office responded to a 

disturbance call over an easement on your property. Before the Deputies 

arrived, you retrieved a personal weapon from your vehicle and strapped 

the firearm on your person. You then identified yourself as a Federal 

Officer to an individual on your property and shortly thereafter told him 

that he was under arrest.
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You exercised poor judgment in identifying yourself as a Federal Officer 

during an off-duty personal matter. You compounded this error by telling 

the individual that he was under arrest while you were carrying a firearm. 

Your decision to take this matter into your own hands instead of waiting for 

Sheriff’s Officers to respond to your call was dangerous and irresponsible.

¶7 Harp filed a civil complaint against Matthews alleging that Matthews committed 

criminal defamation, invasion of privacy, nonfeasance or misfeasance, and breached the 

public trust when she provided DHS with information relating to the August 7, 2003

incident. The parties filed cross-motions for summary judgment, and the District Court 

granted Matthews’ motion. 

¶8 We review de novo appeals from summary judgment and apply the same 

evaluation as the District Court under M. R. Civ. P. 56. Ereth v. Cascade County, 2003

MT 328, ¶ 11, 318 Mont. 355, ¶ 11, 81 P.3d 463, ¶ 11. The party moving for summary 

judgment must establish that no genuine issues of material fact exist. Mitchell v. State 

Farm Ins. Co., 2003 MT 102, ¶ 13, 315 Mont. 281, ¶ 13, 68 P.3d 703, ¶ 13. The 

nonmoving party then bears the burden of raising a genuine issue of material fact beyond 

mere denial or speculation. Mitchell, ¶ 13. If a court determines that no genuine issues 

of material fact exist, it must then determine whether the moving party is entitled to 

judgment as a matter of law. Mitchell, ¶ 13.

¶9 Harp’s claim for damages is based on his termination from DHS. The facts cited 

by DHS as its basis for terminating Harp are consistent with Harp’s affidavit describing 

the August 7, 2003 incident. Thus, no genuine issues of material fact exist, and the only 

question is whether Harp is entitled to judgment as a matter of law. 
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¶10 No private cause of action exists for criminal defamation. Nor would Harp prevail 

on a civil claim of libel or slander because Matthews’ report was made in the 

performance of her official duties as a sheriff’s deputy. Section 27-1-804, MCA, 

provides that a “privileged publication is one made: (1) in the proper discharge of an 

official duty[.]” Privileged publications are excepted from the libel and slander 

definitions. Sections 27-1-802 and 27-1-803, MCA. Matthews’ report clearly falls within 

the meaning of a privileged publication. Thus, Matthews, not Harp, is entitled to 

judgment as a matter of law on this claim. 

¶11 Harp’s invasion of privacy claim also lacks merit. Matthews’ report was an initial 

offense report; initial offense reports are considered public criminal justice information 

and their dissemination is unrestricted. Sections 44-5-103(13) and 44-5-301, MCA. 

Even if we determined that Matthews’ report was not public criminal justice information, 

§§ 44-5-302 and 44-5-303, MCA, provide that non-public criminal justice information 

may be disseminated to other criminal justice agencies. The Cascade County Sheriff’s 

Office and DHS clearly qualify as criminal justice agencies within the meaning of § 44-5-

103(7), MCA. Matthews, not Harp, is entitled to judgment as a matter of law. 

¶12 It is appropriate to decide this case pursuant to our Order of February 11, 2003, 

amending Section 1.3 of our 1996 Internal Operating Rules and providing for 

memorandum opinions. It is manifest on the face of the briefs and the record before us 

that the appeal is without merit because the findings of fact are supported by substantial 

evidence, the legal issues are clearly controlled by settled Montana law which the District 
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Court correctly interpreted, and there was clearly no abuse of discretion by the District 

Court.

¶13 We affirm.

/S/ W. WILLIAM LEAPHART

We concur: 

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ JIM RICE