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 Appell ee.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County

of Cascade, Cause No. CDV 05
- 015, Honorable Tho ma s 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 20072

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 me morandum 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 C ourt’ s quarterly list o f noncitable cases published in the Pacific Reporter and Montana Rep orts. ¶2 Richard E. Harp (Harp) and LaVonne K. Harp appeal from the District Court’s order gr anting 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
. S ome 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 f or ten to fifteen minutes with Harp about the road closure. H arp became convinced that Christiansenw as not going to leave, and Harp stated, “How are you going to stop u s?” Christiansenresponded, “You’re just not going to do it [
. ]” Harpthenretrieved a .357 pistol from his vehicleand strapped on agun belt. H arp notified Christiansenthat Harpw as a federal law enforcement officer and ordered hi m to leave the property. Christiansenresponded, “I’m not leaving, so what are you going to do, shoot me?”H arp answered, “Only if3

necessary,” and then informed Christiansen that Harpw as placing him under citizen’s arrest for criminal trespass. ¶4 Harp’s wife contacted law enforcement and Cascade County Sheriff’s Deputy Matthewsand another deputyresponded. 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 em ployment. D HS confirmed Harp’s em ployment and requested a copy of Matthews’ incident report. Matthews provided DHS a copy of the report after receiving authorization from the Undersheriff. M atthews had no further contact with DHS. ¶6 In November 2003, Harp’s supervisor interviewed Harp about the incident and, soon after, Harp’s em

ploymentw as terminated
. DHS informed Harp that he was being terminated because he had failed to demonstrate the necessarytraits of aD HS law enforcement officer. The termination letter specifically referenced the August 7, 2003 incident, stating: [T]wo Deputie s from the Cascade County Sh eriff’s Office responded to a disturbance call over an easement on your property. B efore the Deputies arrived, you retrieved a personal weapon from your vehicle and strapped the firearm on your person. Y ou then identified yourself as a Federal Officer to an individual on your property and shortly thereafter told him that he was under arrest.4

You exercised poor judgment in identifying yourself as a Federal Officer during an off

- duty personal matter. Y ou 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 com plaint against Matthews alleging that Matthews committed criminal defamation, invasion of privacy, nonfeasance or misfeasance, and breached the public trust

when she provided DHS with informatio n relating to the August 7, 2003 incident. The parties filed cross - motions for summary judgment , and the District Court granted Matthews’ motion. ¶8 We re view de novo appeals from summary judgmentand apply the same evaluation as the District Court under M. R. Civ. P. 56
. Ereth v. Cascade County , 200 3 MT 3 28, ¶

1 1, 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. I f a court determines that no genuine issues of material fact exist, it must then determine whether the mo ving party is entitled to j udgment as a matter of law. Mitchell, ¶ 13. ¶9 Harp’s claim for damages is based on his termination from DHS. The facts cited byD HS 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.5

¶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. S ection 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. Se ctions 27
- 1
- 802 and 27
- 1
- 803, MCA. Matthews’ report clearly fallswithin 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. S ections 44
- 5 - 103 (13)and 44
- 5 - 301, MCA. Even if we determined that Matthews’ report was not public criminal justice information, § § 4 4
- 5 - 302and 44
- 5 - 303 , MCA, provide that non -public criminal justice information may be disseminated to other criminal justice agencies. T he 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 me morandum 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 le gal issues are clearly controlled by settled Montana law which the District6

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/ JAMESC. NELSON /S/ JOHN WARNER /S/ JIM RICE