Denke v. Shoemaker, 2008 MT 418 (2008)

Citation: Denke v. Shoemaker, 2008 MT 418 (2008)
Parent Document: Denke v. Shoemaker, 2008 MT 418 (2008)
Jurisdiction: Montana (state)
Effective Date: 2008-12-16
Original Source: https://www.courtlistener.com/opinion/888205/denke-v-shoemaker/ ↗

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¶31 Concerning Shoemaker’s comments at the February 14 council meeting, the examiner decided that § 27-1-804(2), MCA, applied. This provision includes within the definition of “privileged publication” one that is made “in any legislative or judicial proceeding or in any other official proceeding authorized by law.” Section 27-1-804(2), MCA. As to Shoemaker’s letters, the examiner determined as follows: the statutory privilege did not apply because the letters were not published “in the proper discharge of an official duty” or “in any legislative or judicial proceeding or in any other official proceeding authorized by law,” § 27-1-804(1), (2), MCA; statutory immunity did not apply because publishing the letters did not constitute “the lawful discharge of an official duty associated with legislative acts of the legislative body,” § 2-9-111(3), MCA; but the constitutional free speech protections articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), and its progeny did apply, except to the statements made with reckless disregard for their truth or falsity in the January 6 letter that Denke had engaged in poor bookkeeping and thus caused the City to spend $50.00 per hour for a CPA to correct the problem, and except to the provably false suggestion in the January 19 letter that Denke had colluded with the mayor to obtain payment from the City to settle a meritless sexual harassment claim. The examiner concluded that *333Shoemaker had illegally retaliated against Denke when he circulated these statements and innuendos in his letters, and the examiner awarded Denke $7,500.00 to rectify the severe emotional distress she had suffered as a result of Shoemaker’s illegal discriminatory actions. The examiner also imposed injunctive relief pursuant to § 49-2-506(1), MCA.

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