Spreadbury v. Bitterroot Public Library et al

Filing 111

AFFIDAVIT in Support re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS FOUNDATIONAL AFFIDAVIT OF JEFFREY B SMITH IN SUPPORT OF DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS filed by Lee Enterprises Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J) (Smith, Jeffrey)

EXHIBIT D

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MONTANA TWENTY-FIRST

1

RAVALLI

2

D5''/Ll1

.'UDICIAL DISTRICT

COUNTY

3

4

MICHAEL

E.

S

PREADBURY

5

Cause No.

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7

ANGELA
GEORGE

B.
H.

DV

-!0 -222

wETzSTEoN and
CORN,

s

Defendants.

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Taken at che Ravalli county courthouse
205 Bedford Street, Hamilton, Montana

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Friday, August 5,

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The Honorable Jeffrev

20]"0

H. Lanqton Presidinq.

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TRANSCRIPT OF PROCEEDINGS
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APPEARANCES:
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Plaintiff,

MICHAEL

E.

SPREADBURY,

appearing pro

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For Lhe DEfendanls:

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R. KING
Special Assistant Attorney Gene ra l
Risk Management and Tort Defense
Division
1525 11t.h Avenue, Middle Fl-oor
P. O. Box 200]-24
Hel-ena, M'I 59520 - OI24
MICHAE],

Report.ed by Tamara S tuckey
^ffiaial

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FRIDAY, AUGUST 5,

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THE COURT; The first

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case h'e're

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hear this morning is the Spreadbury v. wetzs teon and

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Corn

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Mi
vi na
That's a moLj-on for summary judgment
MR. KING: Yes, Your Honor.
THE COURT: This is your motion
MR. KING: Yes.
the way I hear
THE COURT: And typically,

motions, Ehis is not whaE a f uf l"-blown argument would be
in t.he Montana Supreme CourE or Ehe U.S. Supreme court..
rt's more like Ehe Nint.h circuit.
I allow about 10 or
15 minuEes for each side Eo mention any points that you
lhink needs mentioning, either it's reemphasizing
something in your brief or responding to something j-n

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rules during Ehis hearing, as in
al-1 hearings. are that nobody is going to inEerrupE Ehe
parEy presenting, even if you might have an objecEion.
You can raise that in your argument. IL's your motion,
Mr. King, so you get Eo begin and you geE Eo close.

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Mr. Spreadbury, you are in Lhe middle. And so he

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Ehe other briefs.

hrr*Aar

Mr
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My

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has

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ne wtJ-J- argue EWLCe; yOU

wi1] argue once. Mr. King.
MR. KING: Thank vou. Your Honor. As Ehis
Court may know, this case arises out of Mr. Spreadbury'
criminal prosecution on August 8th of 2006 in t.he

RavaIl-i CounEy .luetice Court. Mr. Spreadbury alLeges.
as I underscand his Amended compl-aint, tha! the Ravalli

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county Attorney's office did four things that entitle
him to moneEary and injunctive relief from and agaj-nst

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Angela wetzsteon and George corn.

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Afl four of

Ehose

Lhings, those allegations, lack merit.
The first allegaEion, as I understand, in
the Amended Complaint is that. M.r. Spreadbury alleges
that Angel-a wetzsEeon presenEed evidence during
Mr. spreadbury's criminal- trial- that the Ravalli County
Attorney's Office did noE provide to him prior Eo trial
in a timely basis this. This al"leqation lacks merit
because a prosecutor's alleged failure Co provide
discovery in a timeJ-y manner involves a prosecutorial
function for which Miss Wetzsteon and Mr. Corn en'iov
prosecut.orial immunity. And Mr. spreadbury in Ehat
regard has cited no legal auEhorit.ies to the conErary.
Secondly, Mr. Spreadbury all-eges t.hat t.he

Ravalli County Attorney's Office filed a motion co
continue his trial to a peri-od of time when he woul-d be
ouE of Eown, thus in some way causing JusEice Bailey or
Just. j-ce of the Peace Ba i I ev ro i ssrre a Warrant. f or his
arrest for hi-s faiLure to appear at the trial.
This
allegation Iacks merit because filing motions,
particularly motions for continuance, again, is a

prosecutorial funcEion for which Mr. Corn and Miss
Wetzsteon have prosecutorial immunity. And again,

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Mr. Spreadbury has ciEed no legal auLhoriEies to Ehe
conErary. In addiCion, Mr. Spreadbury hasn't produced
any evidence thaE -- showing that Angela Wetzsteon or
George Corn in any way participat.ed in Oudge Bailey's

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issuance of the Arrest warranc.

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And finallv,

lhe Arrest warrant itas

issued -- iE was issued by Judge Bailey. IE's facially
valid. There's no evidence to the contrarv. And in any
event, Eo Ehe exEenE Mr. Spreadbury is asserEing a false
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scalute of l-imitations.
His third alleqation alleqes that the
Raval-li County Attorney's Office misrepresented the
spelfing of Angela WetzsEeon's last name to
Mr. Spreadbury' s unspecified deEriment. I'm not sure
whaE kind of a claim Ehis is, buE the best I could make
of it was Ehat it was a misrepresentation cl.aim, and the
Affidavits -- the undisput.ed affidavit EesEimony of

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AngeIa WeLzsEeon and George Corn shows that they didn't

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intend by any such misspelling of Angela wetzsteon's
Iast. name to cause him any harm. Mr. Spreadbury
certainl"y hasn't produced any facts, let alone specific

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Fourthly, M.r. Spreadbury alleges that as a
resul-t of the first three alleqations, Miss Wetzsteon
and Mr. corn intentionally inflicted emotional dlstress

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intentional infliction of emotional distress, l-acks
merit. Buc more than thaL, \/ou can't maintain in
Montana a cl"aim for intentional, inflection of emotional

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disEress when you are fegally entitled to do what you

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have done, and everyEhing that ceorge Corn and AngeIa

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Wetzsteon have done in this case, t.hey are 1ega11y
entitled to do as prosecuEors for the State of Montana.

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So al,l, four of Mr. Spreadbury's allegations

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of wrongdoing in this case lack meric. As a resuft of
that, this Court. should gran! George Corn's and Angela
wetzsceon's Motions For Summary ,tudqment and dismiss
Mr. Spreadbury ' s Amended complainr wiEh prejudice.
Thank you, Your Honor,

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THE COURT; Mr. Spreadburv

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MR. SPREADBURY: Thank you, your Honor.

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If

it pleases the CourE, I'd aLso like to t.hank the judge
for coming down t.o RavaIli County Twenty-First
I do have a few things I'd like to say.

District..

Angela

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WetzsLeon, on August 8th, 2007 -- noE 2OO5 --

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unauthorized to practice

was

1aw. She was not l"icensed.

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she was licensed 1-o/9/08, is the date, so its's

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October 9th of 2008, which is prior to Ehat. date.

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is also attorney witnesses, my retained attorney, Ehat
Miss wetzsteon was practicing without supervision, hrhich
is in violaEion of Ehe student Practice Act issued by
the Montana Supreme CourE ApriI 30th, 1,975. wj-thout

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t.hose items, a bar license, swearing an oath to the

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There

Constitution and the third item thaE I menEioned,
unsupervised, she has no immunicy.
,tust Iike I stand in front of vou here
today. I'm noE a prosecutor. This is a civil
proceeding. I don't. want. Eo geE off track, buE a
studenL, unsupervised, without a bar license.has
no -- in the words of Mr. King, he used "Iegally
enEitled. " That's not t.he case whatsoever. In facc,
his office is charged with the duty of protecting t.he
public from unauthorized practice of 1aw, and here he is
proEect.ing somebody who did engage in the unauEhorized
practice of law.

I submitted Eo Ehe Court., and I just gave a
copy -- a second copy to opposing counsel. Here j-s a
certified receipE. for my Complaint. Would you Iike t.o
see this, Your Honor? It was wlEhin the docket. You
may have already see it.
THE COURT: It''s

already in the fi1e.

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You can see it if

MR. SPREADBURY: IL i-s.

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you fike.

In terms of George Corn as a supervisor or
ip an administraEor funcEion, the Montana Supreme court,
in 1995, in Kel"man v, Losleben, says Ehat a prosecutor

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is not entitled to immunity engaged in administrative
duties. If he was sitting at his desk right over here
and Angela Wetzsteon was downstairs in the ,Justice

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months into a trial,

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I don't see how ceorge Corn is

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an administrative duty. The
Supreme Court has already determined, your Honor, that

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Ehere is no immunit.y. There is no civil

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immuni!y in thaE siLuation.

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I'1"1 continue.

liability

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The other thing,

is as you

said in the beginning, the defense counsel, Michael
King, from the attorney General's Office has the burd.en

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here -- and I do realize

he has a rebuttal

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statement.

a we}]-estabfished

However ltrs

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fact,

in

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Morl"ey and Walker in the Ninth Circuit

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immunit.y bears the burden of demonstrating that immunity

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. I F: ^had

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segment of this 2007 case where Ange.Ia Wetzsteon in

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fronE of a jusEice of t.he peace or George corn, wherever
he was, noE in the courtroom, how EhaE is entitled to
immunity. So I just stated a case. I just read from

the case EhaE says that Ehe prosecucors have the burden
of showing both reasonableness, sir, Your Honor, and
E.hat the specific task is entit.led Eo immunity. And I
I'd go ahead and say EhaE George Corn assigning a
non-bar-licensed, non-supervised student' is not a
reasonabfe decision to be made bv a DrosecuEor. So
Ehat.'s my argument why t.here isn't immunity -- there's
no immunity assigned to this.
Mr. King would like the Court to think EhaE
none of my claims were intent.ional -- for intentional
dist.ress have any merit. There's a Dhoto that r think
he was talking about or some evj-dence he was Ealkj-nq
about. If someEhing is given ouEside of the Rules of
.rimin:l

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otherwise

known aS discoverV,

!hat

is outside of the Rules of Evidence, and so lhat's noE
someEhing where a counsel can say this was -- I caII it
tampered evidence, which is what it was. It was
acEually altered.

Someone scrat.ched their

or.vn f

ace.

It

alE.ered my life

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to where my career wiEh a very
well-establ-ished path was purposely and intentionalLy

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dest.royed, and t.hat's hrhaC t.hese IIED cases are al-I

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about, is t.hat emotional- distress

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occurred and .thev were

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I would eay that assigning a
prosecutor, wit.hout a 1j-cense, unsupervised, violaEing
l-he a.t- of rhe srroreme Court would be an inEenEional-

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acE.

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done intenEionally.

That ' s an intentional

act.

Like r said before, that case, october 8th,
2008, the appearance was January sth, so lhaE's outside
of speedy trial completely. fE's a misdemeanor. NoE
only that, if I had a reEained altorney, Sasha Brownlee,
in the courEroom for me, there's no need for a judge to
sign a Failure to Appear WarranE, and if Angela
Wetzsteon were in the courtroom, t.here's no -- she has a
dut.y as an officer of the CourE, and if she's cert.if ied
by her dean, which she is, for two years of compet.ent.

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l-egaf school, she would know that. t.hat is her duty to

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say, Your Honor, the Defendan! may not be here -- E.his

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is a mi-sdemeanor t.rial . It's a hrell-est.ablished fact in
Ehis court and in this stat.e that there is no crime of
failure to appear. There's no need for this Warrant.

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So by omission, she's claiming in her Affidavit

that she
didn,t hear it. She didn't see it.
I,rn noE quite sure
exactly what. she's saying. she's Erying uo geE ouE j-t.
But if she's in a courtroom and it's mentioned that
werre goj-ng to issue a hrarranL for failure to appear, as
a court officer, even as an assumed court officer with
the cert.ification from her Dean, thaE means she has the

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onerous to uphold Che rul-es of the CourE, the

constitutj-onaI rights and Che State rights.
I'11 finish here, The torE issue that
Michae.l- King is bringing up says it's only two years for
false arrest. It's a welI-established fact in this
state thats it's four years Eo bring a tort claim in

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fronE of a cour!. That's why we're stsanding here today.
This was Ehree years ago, 2007, and we're here within

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requirement I'm not aware of for the two years.

I

know

for a fact in a federal court I can bring a tort. up t.o
four years, and I believe i!'s t.he same in this court.
The Affidavits never said anvt.hinq t.hat she
was supervj-sed in lhe courEroom. I,m referring Eo

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Angela wetzsteon. If a student is not. supervised, I'II

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al,so was student teaching. My t.eacher was j-n the
courtroom. I had no power to put people in jaiI.

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had

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no power to do the things t.hat a prosecutor can do, and
Ehere's a very importanE reason to this StudenE practice

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Act .

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It's clinical instruction.
You,re noE. qettinq
clinical instruction when you're standing Ehere aLone.
You're noE being watched. You're not being checked, and
Ehat's the problem with this case, and this has caused
immeasurable and irreparable damage t.o my life, Eo my

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future and an unbearable sEress t.o my family. And this
is the reason why the case -- the complainE was filed.
I don't think we need Eo arque on the facts
right now. We're talking about immunit.y. f'm going to

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end with a case where even if immunity is granted, iu

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still

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Srnith on behalf of Srnith Butte Si]ver Bow, 1994,

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"ProsecuEor immuniEy does not shield a prosecutor from

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doesn'E give Ehem immuniEy from civil

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all-

acES Or OmiSSiOnS. "

liabiliEy.

SO, in

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ot.her words, even if you do find t.here's immuniEy,

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there's stiIl civil Iiability
invo)-ved. This hearing is
noc Lhe end al-l for this case for a coupfe of reasons.
For this quot.e righE here t.haE they don't end with
prosecutsorial immuniCy, buE also if it gets appealed up

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Eo the Supreme CourE, they may send it right back and

say it was incorrect. Eo issue j-mmuniEv because in
Losleben, like I quoEed earlier, t.he administrative

duties of someone like George corn saying, Hey, Angela
go down to ,Justice Court and prosecuEe this case, thaE,s
an adminisEraEive dut.y. And t.haE was already
established by the supreme court in the state that that
doesn ' t bring immunity.
Al-so, the 1ast. thing is an action that Lacks
probable cause, it stops all immunity. My aCt.orney -and it's weII established, iE ,s in the docket. Mv

r2

10:02

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attorney, Sasha Brown1ee, was bringing the case for
justifiable force and a couple other constitutionaL
rights that are irrelevant here. But tshe fact that
there's probable cause issue vrhere it was justifiable

10:02

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force for this situation would totally

IQ 02:24

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:50 L2

erase immunity

for the Defendants, George Corn and Angel-a WetzsEeon.
This is found in American .Iurisprudence second Edition
in secEion 102.
So 1asEJ.y, Your Honor, I 'd l-ike to
respecCfully object to the assigning of immunity Eo Ehe
Defendants. I'd like tha! to be in the official record
Eta^.,,aa

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thaE

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lO:02:53 13

done in cases involving

10r02rs8 14

students. but especially with respect to Mr. Corn and
administrative duties, it.'s a wel-l- -establi-shed fact and
precedent in Ehe Montana Supreme Court that no immunity
is available. So as a plaint.if f here, I'm asking the

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18 20

I0:03

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(.nr)r1-

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-- I couldn't

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find any with

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noc believe, very strongly, immunit.y is avaifable here

to Ehe Defendants.
THE COURT: Very well.

MR. SPREADBURY: Thank you.

10 : 03

:22 23

THE COURT: Mr. King.

LO: 03

:23 24

MR. KING: Very briefly,

1o: 03

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couple points.

your Honor.

FirsE of aI1, I want t.o address

Just
t.he

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j-ssue of the sEudenE Practice Rule and the argument by

Mr. spreadbury thaE Miss wet.zsLeon wasn'c authorized
under Ehe Rule. Mr. Spreadbury hasn'E produced any
evidence that refutes any part of Angel-a wetzsteonrs
Affidavit concerning her qualifications under the
student PracEice Rule. rt's hi-s burden to come forward
with specific facts Ehac refute her Affidavit and he
simply hasn'E done it. Saying chat she isn't authorized
is not a subsEiEute for presenting facts EhaE she, in
fact, wasn't authorized. So there's no factual basis
for the scatemen! that she wasn't authorized under Ehe
Rule in the firsc place.
Secondly, the argument that she needed a

10:04:2? 13
10 : 04

:34 14

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supervising attorney with her during his criminal trial
is mistaken. The StudenE Practice Rule verv cl-earl"v

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states in Paragraph 2 thaL, quote, ,'An eligible 1aw
studenE may also appear in any criminal matter on behalf
of the State wj-th the written approval of the
supervj-sing lawyer and the prosecuting attorney or his
authorized representative. " And there's no dispute thaE

02 2I

she

. Corn, and
Mr. Fulbright, her supervising atEorney during that

:

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tri al

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having supervision appears j-n Subsection 2(a) of the
Rule, not Subsect.ion 2(b), which I jusE quoEed. And

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authori-zed by her boss,

1-o anncer el- EhaE trial.

Mr

The reorri remenf f .'r

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that has to do with criminal defense attorneys
representing defendants who have a legal right to lega]
counse]. Under those circumstances, the Rule requ.ires
Ehe presence of a supervising attorney, but not under
subsection (b) , which is the subsection of the rule
pursuant to which Miss WetzsLeon appeared at
Mr. Spreadbury's criminal trial
with respect t.o Mr. Spreadbury ' s argument
that George Corn isn't ent.iEled to prosecutorial
.

10:05:59 10

immunity because he's an adminisErative attorney or

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supervising attorney, EhaE argumenE was done av/ay with
by Ehe U.S. Supreme CourE in Van de Kanp v. Goldstein,
which I cite on page 5 of the Reply Brief in Support of

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summary .fudgment. And

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Mr. spreadbury, despite all t.he
J,egal- research he purports t.o have done, hasn't provided
this Court wiEh any l-egal authoriLies Lo Ehe contrary.
Mr. Spreadbury takes issue with a photograph
apparently. He claims it was altered by somebody. What

10:06:44 2L

he has failed to do, and it's his burden to do, if he
thinks thaE is an issue in this case, is to present
evidence that the two people he sued, ceorge Corn and

10:06:4? 22

Angela Wetzsceon, had something to do with any such

10:06

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al-teration, and he hasnrt. produced any such evidence to
this court in that resard.
Finall\,r

Tr\ra

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nl.e.j-icinn

in

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TOI.t

15

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Claims Division for the State of Montana for

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15 years now, and it's

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f vu!
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req!

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CourE is weLL av'rare Ehere's a three-year general- sLaEute

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the first
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aLmosL

I've ever heard that
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a

This

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of limitaEions for tort claims. In the case of a fafse
arresE claim, there's a two-year sEatuEe. I don't know
whaE

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legal authoriEies Mr. Spreadbury is relying on to
the conErary, buc r do know this: He hasn't presenEed
any t.o this Court. So this Court should granE summary
judgment, and on behalf of ceorge Corn and AngeIa

wetzsteon, I would request respeccfully EhaE the courE
do so. Thank vou.
THE COURT: Very wel-I, the matter is deemed
submiEted. The qourt will issue a vrritten rul j-ng.
(Proceedings concluded.

)

lb

1

J

STATE OF

A

COUNTY OF RAVAII,I

MONTANA

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I, Tamara Stuckey, Official Court Reporter for
the State of Montana, do hereby certify:
That I was duly authorized to and did report the
proceedings in the above-entitled cause;
That the foregoing Pages of this transcript
constitute a true and accurate transcription of my
stenotype notes.
I further certify that I am not an attorney, nor
counse.l- of any of the Parties' nor a relative or
employee of any attorney or counsel connected with the
nor financially interested in the action'
".iion,
IN WITNESS WHEREOE, I have hereunto set ny hand
on thi-s 19th day of September ' 201I-

IJ
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Tamara Stuckey

t9

State of Montana
Twent y- Fi rst Judicial

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OfficiaL Court

Repo-rt

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District