Lence v. Hagadone Investment Co.

IN THE SUPREME COURT OF THE STATE OF MONTANA

JOHN A. LENCE and JOHN A. LENCE, P.C.
a Montana professional corporation,
Plaintiffs and Appellants,

HAGADONE INVESTMENT CO., a Nevada
Corporation, d/b/a INTER LAKE
PUBLISHING CO., DANIEL BLACK,
JACQUELINE L. ADAMS, et al.,
Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H Keedy, Judge presiding.
.

COUNSEL OF RECORD:
For Appellants:
Alan J. Lerner, Attorney at Law, Kalispell, Montana
Larry M. Elison, Attorney at Law, Missoula, Montana
(argued)
For Respondents:
Gary R. Christiansen; Warden, Christiansen, Johnson
& Berg, Kalispell, Montana
Robert C. Bernius; Nixon, Hargrave, Devans & Doyle,
Washington, D.C. (argued)

Submitted: December 10, 1992
Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from summary judgment granted by the
District Court of the Eleventh Judicial District, County of
Flathead, the Honorable ~ichael Keedy presiding. Appellant John
H.
A. Lence (Lence) sued the respondents (collectively, Inter Lake) in
June 1989 for damages arising from libel, false light invasion of
privacy, intentional and negligent infliction of emotional
distress, and negligence. Inter Lake answered Lencelscomplaint in
July 1989, and in July 1990 filed a motion for summary judgment.
In January 1992 the court issued a memorandum and order granting
the motion, and Lence appealed. We affirm.
Lence's claims are based on three articles published in the
Daily Inter Lake in November 1988 and April 1989, on two unrelated
matters. Lence included all three articles in his complaint, and
all three are considered here.

The 1988 Article
On November 30, 1988, the ~ a i l v Inter Lake published an
article, under the heading "Lawyer-client dispute probed,"
reporting that the Montana Supreme Court's Commission on Practice
was looking into uallegations of fraud and professional misconduct
on the part of Kalispell attorney John A. Lence." The article
stated that local building contractor L. Craig Semenza (Semenza)
had filed a complaint against Lence with the "high court," alleging
fraud, professional misconduct, and failure to pay $67,511 for
Semenza's work remodelling Lence's office.
2
 The article also stated that Semenza had been charged in
September 1988 with criminal mischief after someone flooded Lence's
offices with a garden hose inserted through a hole drilled in the
ceiling; that the county attorney was dropping this charge against
Semenza because of insufficient evidence; that Lence had handled
legal matters for Semenza's contracting business; and that Semenza
had fired Lence and wanted to bring a theft charge against him
because he had refused to give Semenza access to his corporate
records.
Lence's attorney, Alan Lerner, wrote to the Daily Inter Lake
demanding a retraction. Mr. Lernerls letter identified the
portions of the article that Lence considered defamatory and
included statements describing the "true facts." Inter Lake
published these statements on December 11, 1988, under the heading
"Attorney takes exception to DIL [Daily Inter Lake] story."
Lence objected particularly to the second paragraph of the
article, which stated that Semenza had filed his complaint with
"the high court." In reality, of course, Semenza had filed his
complaint with the Commission on Practice (Commission). Under the
Montana Supreme Court Rules for Lawyer Disciplinary Enforcement,
only the Commission may file a formal complaint against a lawyer.
When the author of the 1988 article, respondent Jacqueline
Adams (Adams), spoke with Semenza, the proceedings before the
Commission were confidential, pursuant to Rule 13 of the Rules for
Lawyer Disciplinary Enforcement, because no formal complaint had
been filed. But because Semenza approached Adams with the
information and gave her a copy of this complaint, he, not she,
violated the rule of confidentiality. The 1988 article was
defamatory, Lence argues, because:
The Dailv Inter Lake's use of the words "high court"
falsely informed all other attorneys reading the story
that there was credible evidence to support the
conclusion that [Lence] had committed fraud and was
guilty of professional misconduct.
Lence complained that Adams had published the story without
giving Lence an opportunity to comment and without investigating
Semenza's allegations. Adams acknowledged these omissions in her
deposition and stated:
The story was based on the complaint filed with the
Commission on Practice. And just as I would not contact
people named in a civil suit about their part in it, I
would not contact those named in a complaint to the
Commission on Practice. It's not my job to determine
who's calling who names and who's right.
Lence also objected to the article's failure to state that
charges against Semenza, for flooding Lence's office, were to be
dropped without prejudice. According to Lence, this omission
implied that the county attorney had found no evidence against
Semenza. In reality, he says, the county attorney "was not
convinced of Semenza's innocence but needed time to obtain more
evidence."
Adams admitted in her deposition that she knew before the
article was publishedthat charges against Semenza had been dropped
without prejudice, and she agreed that the article would have been
slightly less favorable to Semenza had she included and explained
the phrase "without prejudice." She did not do that, she said,
because "the deadline was at hand" when she learned of the
dismissal, and because she expected to write another story later,
"when the actual matter came into co~rt.~'
On April 3, 1989 the Commission notified Semenza, with a copy
to Lence, that it had reviewed his complaint against Lence and
found no ethical violation or breach of the Rules of Professional
Conduct.
The 1989 Articles
On April 4, 1989 Inter Lake published a short article about a
Kalispell Board of Appeals hearing on a building permit for "the
Main Street offices of attorney John Lence. The article stated
that the city judge had issued a summons to Lence, "who is charged
with violating city codes by constructing openings in walls where
they were prohibited." Lence had installed windows in the north
side of the building, which was on the property line, after city
officials had informed him that placing windows on the property
line would violate the Uniform Building Code.
On April 9, 1989, the newspaper reported that Lence had
pleaded innocent to the misdemeanor charge of violating the city
building code and that the Kalispell Board of Appeals had approved
a no-construction easement from the adjoining property owner, which
satisfied the building code's open space requirement for buildings
with windows.
At Lence's request, the newspaper printed an item in its
"Corrections" column on April 20, 1989, stating that "GKL," a
Montana corporation, not Lence, had been charged with a building
code violation and explaining that Lence was the president of GKL
and his wife, Gwendolyn K. Lence, was the secretary.
Lence argues that the "sting" of these stories was "not that
a violation had been alleged, but rather that [Lence], an attorney,
had personally violated the law," and that Inter Lake should have
known that the court files on the building code violation showed
that GKL, not Lence, was the defendant.
In his deposition, however, Lence stated that GKL Corporation
was merely a holding company created for the purpose of holding
title to the building and that his wife was the sole stockholder.
Lence appeared before the city judge on behalf of the corporation,
and in their correspondence on this matter, both Lence and the city
officials referred to the building as Lence's building.
The following issues are presented for review.
1. Whether, in light of Article 11, section 7 of the Montana

Constitution, the District Court erred in granting summary
judgment .
2. Whether the First Amendment protects newspaper articles
about a preliminary investigation of alleged attorney misconduct
and an alleged violation of a city building code.
3. Whether the articles are privileged, under 5 27-1-804(4),

MCA, as fair and true reports, without malice, of official
proceedings.
4. Whether the District Court erred in dismissing Lencels
claim for false light invasion of privacy.
5. Whether Lence's emotional distress claim duplicates his
defamation claim.
 6. Whether Lence's negligence claim is barred as a
restatement of the fault element of his defamation claim.

Did the District Court err in granting summary judgment?
Lence contends that in granting summary judgment the District
Court erred by deciding genuine issues of material fact: by failing
to view the evidence in a light most favorable to the opposing
party; and by failing to consider Article 11, section 7 of the
Montana Constitution, which provides, in part, that:
In all suits and prosecutions 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.
Lence's "genuine issues of material fact" are discussed below
in the context of the remaining issues. The procedural issue--jury
determination of law and facts in a libel case--was disposed of by
this Court in Griffin v. Opinion Publishing Co. (1943), 114 Mont.
502, 138 P.2d 5 8 0 , which held that it is for the court and not the
jury to pass on motions for nonsuit, directed verdict, new trial,
and so on, and in Williams v. Pasma (1982), 2 0 2 Mont. 66, 72, 656

P.2d 212, 215, which cited Griffin to support the proposition that
"there is no absolute prohibition against granting summary judgment
in libel cases." In libel cases as in other civil cases, summary
judgment is appropriate when there are no material issues of fact
and the evidence supports the judgment as a matter of law. Kurth
v. Great Falls Tribune Co. (l99l), 246 Mont. 407, 804 P.2d 393;
Rule 56(c), M.R.Civ.P.
As we decide here that there are no material issues of fact
7
and that Inter Lake is entitled to judgment as a matter of law, we
conclude that the District Court did not err in granting summary
judgment.
I1
Does the First Amendment protect the Daily Inter Lake
articles?
In holding that Inter Lake's report of Semenza's complaint to
the Commission is protected by a qualified constitutional
privilege, the District Court relied on Landmark Communications,
Inc. v. Virginia (l978), 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1.
In Landmark, the defendant newspaper published an article
identifying a judge who was under investigation by the Virginia
Judicial Inquiry and Review Commission. Like Montana's Rules for
Lawyer Disciplinary Enforcement (Rules), the Virginia statute
requires confidentiality of the investigation until a formal
complaint is filed with the Virginia Supreme Court. Unlike
Montana's Rules, the Virginia statute makes violation of the
confidentiality rule a misdemeanor. The Virginia Supreme Court
found the newspaper criminally liable, but the United States
Supreme Court reversed, holding that the First Amendment does not
permit criminal punishment of third parties, including the news
media, for publishing truthful information about confidential
proceedings of the Judicial Inquiry and Review Commission.
Lence contends that the District Court's reliance on Landmark
is misplaced because the Virginia statute imposed criminal
penalties; the case involved a public official and a matter of "the
most urgent governmental importance;" and the holding was expressly
limited to the publication of truthful information. In contrast,

Lence argues, the present case is a civil action brought by a
private citizen and is, in LenceTsview, "a private dispute without
social or political significance."
By the time Landmark was decided, however, the Supreme Court
had extended First Amendment protection to publications about
private citizens. Gertz v. Robert Welch, Inc. (1974), 418 U.S.
323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Both Gertz and Landmark are
descendants of the seminal First Amendment case, New York Times v.
Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, but
Sullivan, like Landmark, involved alleged defamation of a public
official. In Gertz, the plaintiff was an attorney described in a
magazine published by the defendant as, among other things, a
"Leninist1'and l'Communist-fronter." No evidence supported these
allegations. The Supreme Court held that states have a legitimate
interest in compensating private individuals for the harm inflicted
on them by defamatory falsehood; therefore, states may define an
"appropriate standard of liability for a publisher of defamatory
falseho~ds,~l long as they do not impose liability without fault.
so
Gertz, 418 U.S. at 347. See Madison v. Yunker (1978), 180 Mont.
54, 589 P.2d 126 (following Gertz in establishing the standard of
liability for defamation of a private person).
In Landmark, the Supreme Court held unequivocally that the
newspaperls publication Of accurate factual information about an
inquiry pending before the Judicial Inquiry and Review Commission
"served those interests in public scrutiny and discussion of
governmental affairs which the First Amendment was adopted to
protect." Landmark, 435 U.S. at 434. In Landmark and again in two
cases involving private plaintiffs, the Court balanced these First
Amendment interests against the interests served by preserving
confidentiality and found that the latter were not sufficient to
justify the subsequent punishment of speech.
Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, 99
S.Ct. 2667, 61 L.Ed.2d 399, ruled unconstitutional a West Virginia
statute making it a crime for a newspaper to publish truthful
information concerning the identity of juvenile offenders. The
Florida Star v. B.J.F. (1989), 491 U.S. 524, 109 S.Ct. 2603, 105
L.Ed.2d 443, held that where a newspaper had obtained a rape
victim's name from a police report distributed to the press, a
Florida statute making publication of the victim's name unlawful
was unconstitutional. "[Wlhere a newspaper publishes truthful
information which it has lawfully obtained, punishment may lawfully
be imposed, if at all, only when narrowly tailored to a state
interest of the highest order." The Florida Star, 491 U.S. at 541.
If the public's interest in the dissemination of truth
outweighs the state's interest in protecting the privacy of rape
victims or juvenile offenders, then surely the public's interest in
accurate information about attorney discipline outweighs the
state's interest in preservingthe confidentiality of Commission on
Practice investigations, where, as here, the press obtained the
information lawfully. Thus, Lence cannot recover unless he can
establish that the published infomation was false. "A private-
figure plaintiff must bear the burden of showing that the speech at
issue is false before recovering damages for defamation from a
media defendant.'' Philadelphia Newspapers, Inc. v . Hepps (1985),
475 U.S. 7 6 7 , 7 7 7 , 1 0 6 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 793.

Lence contends that the published information in this case was
neither truthful nor accurate and that the "irresponsible
publication of false information is not privileged communication
protected by the First Amendment. '' By "false information, he
means the 1988 article's reference to the "high courtv1instead of
the Commission on Practice; its failure to state that charges
against Semenza had been dropped without prejudice; the implication
that Lence had been charged with theft; and in the 1989 articles,
the attribution of the building code violation to Lence instead of
the GKL corporation. The evidence is sufficient, Lence argues, for
a jury to conclude that these errors were not inconsequential or
distortions of the truth.''
insignificant but instead were llgross
The District Court concluded, however, that the cited errors
were inconsequential and that the articles were substantially true.
The 1988 article did not allege that Lence had actually committed
acts of fraud, professional misconduct and theft, but merely
reported accurately that Semenza had filed a complaint alleging
such acts, and that police records indicated that Semenza had told
the police he wanted to bring a theft charge against Lence.
Similarly, the 1989 articles were substantially true because the
acts on which the misdemeanor building code violations were based
were the personal acts of Lence, not his corporation, and because
Lence himself consistently treated his personal interests as
identical to those of the GKL corporation.
We conclude that Lence failed to meet his threshold burden of
establishing the falsity of the Daily Inter Lake articles. The
articles, therefore, are protected by the First Amendment as
truthful information about a matter of public significance.

Does the fair and true report privilege protect the Daily
Inter Lake articles?
Libel is a false and unprivileged publication. Section 27-1-
802, MCA (emphasis added). If the publication appears to be
privileged, the plaintiff must show that it is false. Cooper v.
Romney (1914), 49 Mont. 119, 128, 141 P. 289, 292. Section 27-1-
804, MCA, provides that for purposes of a defamation action, a

IfprivilegedpublicationH is one made in the proper discharge of an
official duty, in any legislative or judicial proceeding, or:
(4) by a fair and true report without malice of a
judicial, legislative, or other public official
proceeding or of anything said in the course thereof.
The District Court concluded that under this statute, the Daily
Inter Lake articles were privileged and therefore not defamatory.
Whether a publication is privileged is a question of law for
the court, where there is no dispute about the content of the
proceedings on which the publication is based. Rasmussen V.
Bennett (l987), 228 Mont. 106, 110, 741 P.2d 755, 758; Crane v.
Arizona Republic (C.D. Cal. 1989), 7 2 9 F.Supp. 698, 702. Our
review of this issue is confined to determining whether the
District Court's interpretation of the law is correct. Steer, Inc.
v. Deplt of Revenue (1990), 245 Mont. 470, 8 0 3 P.2d 601.

We hold that the District Court concluded correctly that a
preliminary Commission on Practice investigation is part of a
judicial proceeding, and that the 1988 Daily Inter Lake article
therefore was privileged. See Cox v. Lee Enterprises, Inc. (1986),
222 Mont. 5 2 7 , 529, 723 P.2d 238, 240 (''judicial proceedingt1
defined to include, for example, "any proceeding to obtain such
.
remedy as the law alfowslt) The 1989 articles, which described
Lencels alleged violations of the Kalispell building code, clearly
were privileged under 5 27-1-804(4), MCA.
As Lence presented no evidence showing that the articles were
false, and all three were privileged as a matter of law, Inter Lake
was entitled to summary judgment.
IV
Did the District Court err in declining to recognize Lencets
claim of false light invasion of privacy?
False light invasion of p r i v a c y is (1) the publicizing of a

matter concerning another that (2) places the other before the
public in a false light, when (3) the false light in which the
other is placed would be highly offensive to a reasonable person,
and (4) the actor knew of or acted in reckless disregard as to the
falsity of the publicized matter. Restatement (Second) of Torts 6
6523 (1977).
Here, Lence has no legitimate claim for false light invasion
of privacy because he failed to establish the falsity of the Daily
Inter Lake articles. See Restatement (Second) of Torts 5 6523,

comment a (Ititis essential to the rule stated in this Section that
the matter published concerning the plaintiff is not true1').
v
Did the District Court err in holding that Lencels emotional
distress claims fail?
The District Court held that Lence could not recover for
emotional distress because the Daily Tnter Lake statements were
substantially true and without malice. Citing Hustler Magazine v .
Falwell (l988), 485 U.S. 46, 108 Sect. 876, 99 L.Ed.2d 41, the
court concluded that emotional distress claims are subject to the
same First Amendment defenses as the libel suit. Because the
plaintiff in Falwell was a public figure, subject to an Itactual
malicef1standard, while Lence is a private person, we affirm on
this issue for different reasons.
This Court has adopted the requirements for recovering damages
for infliction of emotional distress that are set out in
Restatement (Second) of Torts § 46 Comment j (1965). First Bank v.
Clark (l989), 236 Mont. 195, 771 P.2d 84. The victim must show
that the defendant's tortious conduct resulted either in physical
or mental injury or in I1a substantial invasion of a legally
protected interest, and that it caused a significant impact,
including emotional distress "so severe that no reasonable person
could be expected to endure it." Clark, 771 P.2d at 91.
Lence argues that I1untrue charges of fraud, professional
misconduct, theft and crimeuf are lfsufficientlyoutrage~us'~
to
sustain a cause of action for severe emotional distress, but he
offers no evidence of severe emotional distress. In his deposition
he described a visit to a hospital emergency room approximately two

weeks after the 1988 article was published, for "stress and heart-
related problems and circulatory problemsu that he had not had
previously. The only other evidence of distress or "significant
impact1'is Lence's statement that he missed a meeting of a client s
board of directors on the day after the 1988 article appeared.
Even if Lence could legitimately plead emotional distress, the
Daily Inter Lake articles would have had to be more than merely
hurtful or offensive; they would have had to be ''so outrageous ..
. as to go beyond a11 possible bounds of decency." F r i g o n v.
Morrison-Maierle, Tnc. (1988), 233 Mont. 113, 123, 760 P.2d 57, 64.
The newspaper's truthful publication that Semenza had lodged a
complaint with the Commission, and its report of the building code
dispute, hardly constitute outrageous conduct that goes beyond all
possible bounds of decency.
In the past w e have characterized emotional distress as an
element of damages rather than a distinct cause of action; see
Frison, 760 P.2d at 63; Shiplet v. First Security Bank (2988), 234
Mont. 166, 174, 762 P.2d 242, 247. Even if considered only for the
purpose of establishing damages, however, Lenceps deposition
testimony demonstrates the absence of any genuine issue of material
fact concerning the severity of his alleged emotional distress.
 VI
Was Lencef negligence claim barred as a restatement of the
s
fault element of his defamation claim?
Lence argues that the District Court erred in dismissing his
negligence claim because Itthefacts of this case present a separate
and distinct cause of action for negligence.!! He claims that Inter
Lake was under a duty to investigate Semenzals allegations before
repeating them to the public, that Inter Lake owed Lence a duty of
care in their choice of words describing the status of Semenzafs
complaint, and that Inter Lake owed Lence a duty of confidentiality
under Rule 13C, Montana Supreme Court Rules for Lawyer Disciplinary
Enforcement. By disseminating Semenza's allegations without
investigation, Lence argues, Inter Lake breached not only its
duties to Lence but also its direct duty to keep information about
a Commission investigation confidential.
As a result of Inter Lake's breach of duty, Lence claims, he
has suffered damage to his reputation and business and "extreme
emotional harm, humiliation, and physical stress which led to a
doctor's visit." The First Amendment does not protect a media
defendant from suits that can be brought generally under common law
theories of liability, Lence argues, citing Cohen v. Cowles Co.

(1991) I - U.S. I 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586, 597 (a
newspaper publisher "has no special privilege to invade the rights
and liberties of others1') . Thus, Lence contends, he has a right to
present his negligence theory of liability to a jury.
The District Court dismissed Lence's negligence claim on the
grounds that it "merely reiterates the fault element of the libel
claim." We hold that Lencets negligence claim fails even if it is
considered independently of his libel claim.
To prevail in a negligence action, a plaintiff must prove the
following elements: a duty owing from the defendant to himself; a
breach of that duty; proximate causation: and damages. Scott v.
Robson (1979), 182 Mont. 528, 535-536, 597 P.2d 1150, 1154. Here,
Inter Lake owed no duty to Lence to investigate or to keep the
Commission investigation confidential. Semenza's allegations,
after all, had been made to a body authorized to investigate them.
Adams' role was merely to let the public know that an investigation
had been initiated, not to undertake an investigation herself.
It is clear that Rule 13D, Montana Supreme Court Rules for
Lawyer Disciplinary Enforcement, imposed a duty on Semenza, because
it unequivocally requires "participants" in a disciplinary
proceeding to "conduct themselves so as to maintain the
confidentiality mandated by this rule." Semenza violated this rule
when he approached Adams with the information and gave her a copy
of his complaint, but Adams committed no wrong in receiving the
information. Further, the rule does not apply to an accurate
republication of Semenza's allegations. First, as we have seen,
the 1988 Dailv Inter Lake article is privileged under 27-1-
804(4), MCA. See also Dameron v. Washington Magazine, Inc. (D.C.
Cir. l985), 779 F.2d 736 (in a libel action brought by an air
traffic controller against The Washinqtonian, the court held that
republication of a defamation uttered by another is immune when it
is a fair and accurate report of official proceedings) ; Law Firm of
Daniel P. Foster v. Turner Broadcasting System, Inc. (2nd Cir.
1988), 844 F.2d 955 (dismissing a libel action on the grounds that
CNN1s broadcast of statements made by FBI officials was
substantially accurate and therefore privileged under the state's
fair and true report statute).
Second, our constitution gives a high priority to the public's
right to know. It can be abridged only when "the demand of
individual privacy clearly exceeds the merits of public
disclosure." Art. 2, 5 9, Mont. Const. See Great Falls Tribune
Co., Inc. v. Cascade County Sheriff (l989), 238 Mont. 103, 775 P.2d
1267 (when law enforcement officers have engaged in conduct that
subjects them to disciplinary action, the public's right to know
outweighs law enforcement officers' privacy interests). Here, the
merits of disclosing that an attorney has been accused of
misconduct clearly outweigh the demand of individual privacy, when
the misconduct is presented as a mere allegation by a person whose
motivation and probable unreliability are adequately conveyed in
the publication.
As Inter Lake owed no duty to Lence, it is entitled to
judgment on Lence's negligence claim as a matter of law.
Affirmed on all issues.
Justices
Justice Terry N. Trieweiler dissenting in part and concurring in
part.
I dissent from that part of the majority opinion which
concludes that defendantst publication of the November 30, 1988,
article was privileged as a matter of law. I conclude that there
was no constitutional privilege which applied to this case and that
whether there was a statutory privilege was an issue of fact which
could not be resolved by summary judgment.
The United States Supreme Courtfs decision in Ladmark

L. Ed. 2d 1, which is relied upon by the majority was a narrow
decision limited to the facts before the Court in that case. Those
facts bear no similarity to the facts alleged in this case.
In Landmark, 435 U.S. at 837, the issue before the Supreme

Court was stated as follows:
The narrow and limited question presented, then, is
whether the First Amendment permits the criminal
punishment of third persons who are strangers to the
inquiry, including the news media, for divulging or
publishing truthful information regarding confidential
proceedings of the Judicial Inquiry and Review
Commission.
The differences in Landmark are readily apparent. First, and

most importantly, that decision involved a judicial officer. This
case involves a private citizen. Second, that case involved
admittedly truthful information, while the plaintiff in this case
alleged that the material published by defendants was untruthful.
ina ally, the issue in Landmark was whether the publisher of truthful
information can be punished, while the issue in this case is
whether the victim of untruthful information can be compensated.
In arriving at its conclusion that a constitutional privilege
protected the defendant, the Supreme Court relied heavily on its
rationale that If[t]he operations of the courts and the judicial
conduct of judges are matters of utmost public concern." Landmark,

435 U.S. at 839.
There is no similar public concern in this case.
.
Neither did Smith v Daily Mail Publishing Company (1979), 443 U.S 97,
.

99 s. ct. 2667, 61 L. Ed. 2d 399, nor FloridaStarv. B.J.F. (1989), 491

U.S. 524, 109 S. Ct. 2603, 105 L Ed. 2d 443 (cases also relied
.
upon by the majority), involve facts or issues similar to those in
this case. Both cases again involved the limited issue of whether
a state could criminally punish the publication of truthful
information. In fact, in Smith, 443 U.S. at 105-06, the Court held

that :
Our holding in this case is narrow ...
there is no
issue here of privacy . . . .
At issue is simply the
power of a state to punish the truthful publication of an
alleged juvenile delinquent's name lawfully obtained by
a newspaper. The asserted state interest cannot justify
the statute's imposition of criminal sanctions on this
type of publication.
In PhiladeIphiaNewspapers,Znc. v Hepps (1986), 475 U.S. 767, 777, 106
.

S. Ct. 1558, 1564, 89 L. Ed. 2d 783, 793, the Supreme Court simply

held that when the subject of a newspaper article involved matters
of government it was of sufficient public interest that the
plaintiff would be required to prove the falsity of the publication
before he could recover damages for defamation.
However, in this case, the plaintiff was neither a public
official nor a public figure and the accusations made against him
involved a simple dispute between an attorney and his client.
There was no significant public interest in the subject of
defendants' newspaper article. According to the U.S. Supreme
Court's decisions, this type of communication possesses no
significant constitutional privilege. G e m v. Robert Welch, Znc. (1974),

418 U.S. 323, 94 S. Ct. 2997, 41 L. ~ d . 789; Dun & Brahtreet, Inc.
2d v.
Greenmoss Builders, Znc. (1985), 472 U.S. 749, 105 S. Ct. 2939, 86

L. Ed. 2d 593. In Hepps, the Supreme Court summarized First

Amendment protection for newspapers in the following fashion:
One can discern in these decisions two forces that
may reshape the common-law landscape to conform to the
First Amendment. The first is whether the plaintiff is
a public official or figure, or is instead a private
figure. The second is whether the speech at issue is of
public concern. When the speech is of public concern and
the plaintiff is a public official or public figure, the
Constitution clearly requires the plaintiff to surmount
a much higher barrier before recovering damages from a
media defendant than is raised by the common law. When
the speech is of public concern but the plaintiff is a
private figure, as in G e m , the Constitution still
supplants the standards of the common law, but the
constitutional requirements are, in at least some of
their range, less forbidding than when the plaintiff is
a public figure and the speech is of public concern.
When the speech is of exclusivelv private-concern and the
plaintiff is a private fiuure, as in Dun &Bradstreet, the
constitutional reuuirements do not necessarilv force anv
chanse in at least some of the features of the common-law
landscape. [Emphasis added.]
Hepps, 475 U.S. at 775.
 The majority concludes under Issue I1 that pursuant to the
Hepps decision, Lence must prove that the Daily Inter Lake article

was untrue; and that since the inaccuracies in the article were
inconsequential, he has not met that burden. It is true that he
must prove the article's falsity. However, that is not because of
Hepps. It is because, by statute, falsity is a required element of

a libel action in Montana. Section 27-1-802, MCA.
When the majority concludes that the article is substantially
true, it misconstrues the nature of Lence's complaint. His
complaint is that the November 30, 1988, article in the Daily Inter
Lake repeated Semenza's defamatory allegations that Lence committed
fraud and professional misconduct, refused to pay Semenza for work
that had been done, and unlawfully retained Semenzavsfiles. Lence
contends that these allegations were untrue, and in support of that
contention, he offers the fact that the complaint against him
before the Commission on Practice was subsequently dismissed.
A newspaper cannot avoid liability by honestly pointing out
that it is simply repeating statements made by others. "[Olne who
repeats or otherwise republishes defamatory matter is subject to
liability as if he had originally published it." Restatement
(Second) of Torts, 5 578 (1977).
Therefore, while I concur with the majority that the 1989
articles regarding building code violations were substantially
true, I disagree that the accusations contained in the 1988 article
were substantially true, and I disagree that the authorities relied
upon by the majority under Issue I1 of that opinion grant any
privilege to the Daily Inter Lake for the November 30, 1988,
article that it published.
If there is any privilege for the November 30, 1988, article,
it is based upon § 27-1-804(4), MCA. That section provides that:
A privileged publication is one made:

(4) by a fair and true report without malice of a
judicial, legislative, or other public official
proceeding or of anything said in the course thereof.
[Emphasis added.]
I agree that the Daily Inter Lake's reference to the Supreme
Court had no significance to anyone other than attorneys, and that
attorneys who read the entire article would not be mislead by that
reference. Therefore, the November 30, 1988, article was "a fair
and true report of a judicial proceeding. However, 5 27-1-804 (4),
MCA, also requires that the publication be without malice. Since
the privilege is statutorily created, we must look to the statutory
definition of malice in Montana's Code. The only one I am aware of
is the one found at g 27-1-221, MCA, which defines malice as
follows:
(2) A defendant is guilty of actual malice if he
has knowledge of facts or intentionally disregards facts
that create a high probability of injury to the plaintiff
and:
(a) deliberately proceeds to act in conscious or
intentional disregard of the high probability of injury
to the plaintiff; or

(b) deliberately proceeds to act with indifference
to the high probability of injury to the plaintiff.
 Whenever the meaning of a word or phrase is defined in any
part of the Montana Code Annotated, that definition is applicable
to the same word or phrase when it appears elsewhere. Section
1-2-107, MCA.

I conclude, based upon the testimony of Jacqueline Adams, the
author of the article about which Lence complains, that there was
a factual issue regarding whether Adams was aware of facts which
suggested a high probability of damage to Lence, and then acted
with indifference to that high probability.
Adams testified that she first met Semenza during the month in
which the article was published. She knew that he had been
previously accused of flooding Lence's office and causing
substantial damage. She knew, based upon that accusation and her
interview with Semenza, that he had a high degree of animosity
toward Lence. She had no prior experience with Semenza which would
indicate that he was a reliable source of information. She was
obviously aware of the fact that the allegations contained in the
article would be very damaging to Lence's professional reputation.
However, she testified that she did not give any great thought to
that potential damage before publishing the article.
Instead of attempting to verify the allegations made by
Semenza, she published them without any further investigation.
Even though she was aware that Semenza had made his complaint about
the theft of his files to the Kalispell Police Department, and even
though she was aware of the officer to whom the complaint was made,
she made no effort to confirm the truthfulness of that accusation.
She made no effort to contact Lence regarding Semenza's
accusations; and made no other effort to independently verify
anything she had been told by Semenza. She stated that it was not
her job to determine who was calling who names and who was right.
Even after Semenza's complaint to the Commission on Practice
was dismissed, there was no follow-up publication in the Daily
Inter Lake which pointed that out.
There is a school of constitutional thought to which the
majority apparently subscribes which holds that there is some
public benefit from encouraging this kind of reckless disregard for
the professional and personal reputation of others. However, I
disagree. We are not, in this case, talking about prior restraint
of speech or press. We are considering the similarly important
rights of people who are damaged by the irresponsible exercise of
First Amendment rights.
So long as reporters are given the broad immunity provided for
in the majority opinion, they, like Adams, will continue to have no
reason for caring about the truthfulness ofthe harmful allegations
that they report. While this free-wheeling approach may serve the
interest of free exchange of information, it certainly ignores an
equally compelling interest that all private individuals have in
preserving their reputation. As pointed out in Gertz, 418 U.S. at

The legitimate state interest underlying the law of
libel is the compensation of individuals for the harm
inflicted on them by defamatory falsehood. We would not
lightly require the State to abandon this purpose, for,
 as MR. JUSTICE STEWART has reminded us, the individual's
right to the protection of his own good name
"reflects no more than our basic concept of
the essential dignity and worth of every human
being--a concept at the root of any decent system
of ordered liberty. The protection of private
personality, like the protection of life itself, is
left primarily to the individual States under the
Ninth and Tenth Amendments. But this does not mean
that the right is entitled to any less recognition
by this Court as a basic of our constitutional
system." Rosenblatt v Baer, 383 U.S. 75, 92 (1966)
.
(concurring opinion.)
I concur with the majority's disposition of Issues IV, V, and
VI, but do not agree with all the reasons given for the majority's
disposition of those claims. I would affirm the District Court's
dismissal of those claims because they are, in substance simply
reallegations of plaintiff's claim for defamation. The lements
necessary for each of those claims are essentially the s r
a as the
elements necessary to prove the plaintiff's defamatio: claim.
Furthermore, I conclude that the facts alleged by the plaj tiff do
not satisfy the quantum or quality of proof necessary to 6 tablish
a claim for intentional infliction of emotional distress 3nd are
not the type of facts for which we have previously reca lized a
claim for negligent infliction of emotional distress.
I also concur with the majority's disposition of Lenct s claim
for defamation based on the 1989 articles in the Daily In1 r Lake.
I would, however, reverse the District Court's judgme : which
dismissed Lence's claim based upon the November 30, 1988, article
and remand that claim to the District Court for trial of the
factual issue raised and discussed above. If, after con4 eration
of the facts presented, a jury determined that Adamst article was
not published with malice as defined in our statutes, then I would
conclude it was privileged. On the other hand, if a jury found
that her conduct was malicious, I would conclude that Lencetsclaim
for defamation is actionable.

Justice William E. Hunt, Sr., joins in the foregoing dissent
and concurrence.

/ 1
-
.
Justice
 May 27, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Alan J. Lemer
Law Offices of Alan J. Lerner
P.O. Box 1158
Kalispell, MT 59903-1158

Larry M. Elison
Attorney at Law
1101 West Greenough Dr., # C-2
Missoula, MT 59802

Gary R. Christiansen
Warden, Christiansen, Johnson & Berg
P.O. Box 3038
Kalispell, MT 59903-3038

Robert C. Bernius
Nixon, Hargrave, Devans & Doyle
Ste. 800, One Thomas Circle
Washington, D.C. 20005

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA