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)

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EX}IIBIT E JUDIClAL MONTANA TWENTY.FIRST 1 RAVALLI 2 DI STR CT COUNTY 3 4 MICHAEL E. S t-ov l_i- u PREADBURY, h1^.r-ri€a rIdIlrLr!r, 5 Cause 6 1 KENNETH S No DV-10-223 | BELL, Defendant 8 9 n at the Ravalll Countv Courtho Bedford Street. Hamifton, Mont Fr j.day, August 6, 2Ol0 1C 11 1) 13 The Honorable Jeffrey Langton H Pre s idi ng. I4 TRANSCRIPT OP |:l PROCEE D ] NGS 10 I1 APPEARANCES: 18 Plaj-ntiff, Michael E. Sp r ea dbu ry, .nha.ri 19 20 11 For the DefendanE3 NATASHA PRINZ]NG JONES 201 West Main Street, Missoula, MT 59802 22 23 ?4 25 Taruny Stuckey ,.* 375-6783 S lte 300 ^l'1O:0.7:4 5 Ol;46 3 1O:07 : 52 4 tO:3?:54 5 10:08:1l 6 10i08:i3 1 10:08rL? 8 10: 10:08 ;21 9 I DAY, AUGUST 5 2OTI THE COURT: Very b,eIl. I the maLter is deemed 2 l0: 07: 48 - FR 1 submi tt The Court wil,l issue a written ed rulino. There's a second case involving different counseL. That's Spreadbu ry v. Be).f , DV -lo-223. Miss Jones is here on behalf of Mr. Bel1, and Mr. Spreadbury again pro se. This is a 12(b) (6) notion on dismissal on such a motion, whi]e argurnent is not required the way 1t 1s requi-red on summary judgment motion, I f el-t it 30 11 l0:08:33 12 appropriate in this case to hear IegaI argumenE. we'Il f oL.Low the satne format as we just utilized; again, the moving party goes first, the party opposing is in the lo,ou,tt 13 middLe and the moving party with the burden closes. - 10r08:40 L4 Miss Jones. 06:41 15 10:08:27 10:08: IO: 10 10r08:43 16 10:08:45 77 1O:08:48 18 52 1-9 10: 08 : 55 20 10:08: sg 21, 09: 01 22 lO: 10 : OB : l O: C9: 01 23 1O:C9:09 24 Jro, or, r: 25 MS. JONES: Thank vou, Your Honor. And I'11 be brief. I don't think that there's much that I can add to the briefing on this issue. I would simply hi ohl i.'hf thi q: That this iS a motion to dismiss and so we are bound to the record. However, I provided the Court with the authority that aIl-ows the Court to ta ke judicial notice of related proceedings. And those rel-ated proceedings, of course, are the criminaL cases involving the same person, Mr. Spreadbury. And so this is re]evant because Mr. SDreadburv has tried to view Lth.l- Mr -- f-!tv e J .Ati-^rn6r, r.v r e v v. Tammy j R.al lro rnla ih Stuckey *" 375-6783 iha ^r^l-a^f iva 1 Or0:0e,18 IAt09 order hearing was in a vacuum. And the Court, of course, can take judicial notice, in the context of 22 2 10:09:25 3 10 :0 9: 28 4 10:09:31 5 10:09:33 6 10:09:37 1 proceedings because NanSu Roddy, who vras moving for the protective order at thar time, was also a key wiLness in 10:09:40 8 a r:riminel 10:09:43 9 victi-m of a crime that was under investiqation with !he a motion to dismiss, of the related proceedings so that h,e have context for his roLe there. And it becomes clear that his role there ,,ras related to the criminal- mall qf an.'c cr .rifiin:l 11 O9:51 72 13 incimidarion charge tha! was subsequently filed against Mr. Spreadbury for t.he exact conduct that was at issue in the order of Drotection hearinq. And for those 58 L4 reasons, of course, it was absoLutely appropriate for 10:lO:03 15 ait\/ 05 16 i h/l6a.t 10rlo:09 11 10:10:13 1B l0:l0rl5 19 IQtlQ:22 20 |ro,or,:s 10: C 9: 1o: 1O: 1C: 10: 24 2I 10:1Oi 30 l0: 10:33 23 6 24 l0:3? 25 .10: 10: 10: 22 3 At r . ^ rnav Mr ,1 r ' Rel l crimi na .an.l fh:t f /-\ n:yti.-iriara qhraA.ihr.-., JlJt - -L- l in rri6^^rf ,,-^ wdr l'h.rf l r l ^ to +L-r f61^nU lef vri), hairin.r F^-raaFnra/.t rslJreJe hed l.rccn aq<ioncri l ! respass case, Then, of cou rse. i e fh6 rh6 10:09:49 r Ral !!rr :hA aqqi 1O: v Af l-.rrnFv f raenr e!vryqrs IOrOg:45 10 ^f ail tho An.i hU hia him in i--..^.i L rruLLu the rr r- +,,y L leave it to the br.ief s on immunity, as that's been the issue of multiple legal briefs by Mr. Spreadbury and mysel.f , as weLl- as in related cases on that issue, so I donrt think I can add ann i ee vPPr4vv An.l L'i fl^ tha! I I lL arry Lrrtrrg THE COURT: Thank vou Taruny Stuckey Mr. 375 6783 Sp readbury MR. SPREADBURy: yes, your Honor, Thank 1 -.10:10r39 - 10:10r46 2 1.0: 10 | 50 3 10:1C:s4 4 10:1Cr58 5 Ii: 02 6 10r11:C6 1 10r11:10 8 I0:lI:15 9 10:li'18 10 I0t ll:22 11 ln rr.r( \2 l0: you. If it pleases the Court, I just have a few comments. We can say all we want to that Ken Bell was acting within his authority and there' s aII the se criminal" charges. We11, if you think that sitting on a public park owned by the City of Hamilron in a public place with, I don't know what you'd call it, liberty, freedom of access, definitely freedom of assembLy, which is 1n both constitutions of the flags on either side of you, and rf you think asking a librarian for help is a felony, then. you know, 1et's talk about. the criminal mat ce r. lt):il:J/ IO In fact, Ken BeIl ,,ras in a civil proceeding Iike we are right now and there was no criminal stuff going on. I hate to use the word "stuff ." But it'S very clear in MCA 7-4-4604, which are the duties of a 10:11:45 I7 city attorney. lO:11:50 'I T\/ nlF^.linds- 10: 11 i 56 19 16^racahl-in^ re}J!qocrrLJ.rv 10:12:00 20 even entering a ci vi 1 courtroom l-i ke we'.re he.re right 10r12:04 2I now. None of those duties. Thev are -- the duties are to prosecutor for the city, to draft ordinances for the I10:11:26 13 v 10;11:29 l0: 10: 1.1 : :l3 15 B l2:08 23 city, I7 24 Counc i f 25 Anrl 12 r fll:L2:20 vo rr H.)n6r .n q' 6hhl^,,^^ sr,'l/rvyee and I have that in nnnc nf tham listed ,,r.^ Yrrr\J .l^ r-r rlvL include iI a \-rLy r, 6mhl EnrPrLryce \Jr and do whatever other services that the City L0 t 1.2112 10: None of them listed. , upon a vote, deems !he city at Lorney shouLd T minhl- ho miccind .rna fhora Tanmv Stuckev ** l.r,,t iire 375-6783 rlcf inil-p1\, do ^rctl.2t23 - r0.12..25 IAt12t29 1 nof lrpi nrr in : rirrif qoua1I.ggm. 10r12i36 4 l0:12:40 5 t12.46 6 Irm going to 90 on to the confllct of interest that Mr. Be11 engaged in, He sat in a criminaL courtroom, as f was be j.ng arraigned, as a sLand-in prosecutor on November 10th in Just j.ce Clute,s courtroom, and then on November 20th he r^ras in this l} !2t52 1 aforementioned civil 56 8 70 I0: 12: lO:13rOO 03 2 3 9 hearing on behalf of Nansu Roddy, nhich she is not a city emp.loyee. She is an empl-oyee of the Bitterroot Public Library, which is an i ndependent 10 I i hr:r\/ 11 harwarrAr 12 So he prosecuted one party ten days prior, 13 10:13;25 15 in to, I guess yourd call it defended or represented non-city business on November 2}Lh, 2009, in Mun j-cipal Court in Hami"lton, Just as a Iayman, that appears to 10i13:30 me -- oh, and Lhen we have the sitting 10: 13: 10:13:05 10 ; 13: 10 Itort:,t, v 1O:i3:20 10: 13:3 14 16 6 I7 38 18 lO:13:41 19 10: 13: lO: 13: { l 0: 14 3 20 :02 2I disf che rir-t is whn dFl. e frrn.l i n^ n.\1- ,an pmnl6wcc nf fr"^m rvI" ' tha Ttr noin.r'n if you act ourside of the dut i es, that's 02 24 requirements for emotional distress oz 25 ]t's : tlrmiltnn and then came on the Iibrary so Ken BelI acted outside of the duties, 23 rl v! nrl\/F r:n. 10: 14 :02 Jro: ait-\r.\f vrLl, I bel-ieve there was a date sometime in November. I canrt quite remember, but he was al_so the prosecutor on that case. The tria.I , r knov,, was Eebruary 18, 2070. November -- j_t doesn' t matter, so 22 10: 14: airU vf Llra Iawn prosecution, 02 1O | 14]- iha errs one of the is to be outrageous. outrageous for Ken BeII to be in a civil" IJ so courtroom ih^1,r.liF^ rrterqvrrrY :nrr aif u h11ei n6<< 1 ^ds 10:14:11 2 So rhat's one of the requirements f or emotional distress 10r14:15 3 10:14:19 4 10:14:23 5 i4:25 6 a wel l-establ. ished fact that prosecutors have no immunity in civil courtroons. I0 r14 t29 1 Mr. Corn is sitting l0: - I | 14 10: ^ ^] €r {-rLy , !.'i f h^rrt- :05 -^10 aLL\Jr-rrsy Trrro :l rai,lv trl lzod :F.rrrf tha conflict of interest, It's : 35 9 10:14:40 10 right here, He has no imnunity in this civil courtroom. Hers the prosecutor for Ravalli County. If he were to say something to me or anythi.ng eIse, that could be used as defamaCion. That could be L0:14r43 11 used as misrepresentation. l0:14:{? I2 t4:51 13 l4:55 L4 l0:t4r58 15 l0rl5r0i 16 deputies could say, which they have, if this were anybody else but Mike Spreadbury, we would have dropped t.his case. So r"rhen they say something like that, they only have qualified imrnunity, if anything. So there's cerLa j.n stages of immunity. And in a civil courtroom, 0: 15: O6 l7 10:.15i09 18 15: 12 19 l0:15:I? 20 10:15:19 21 10:15:24 22 10:15:28 23 that Ehere is a burden of proof, And respectfully, I,m getting from the defense counsel that. it,s j ust in her pleadings, thaE there is immunit.y, I don,t see any 10:15:34 24 burden there, 25 in a civil 14 : 32 l0: l4 -lO: - 10: t L0 : I10:15:3? You know, one of his there's no immunity. So Ken Bell, it's a we 1I -establ i shed fact and observedr in a civil cou rt room, no j-rnnunity. The other thing I,11 9et into is the fact I donrt see any proof !hat, okay, he was courtroom, here,s how he has imrnurlity right T^mhv qftr-L6r' I I ** -^^ ?_lq-f O/OJ J,J l0: 15:41 1 10:15:44 2 10:15:49 3 there in that courtroon. If hers outside of his duties and hers also in a civil courtroom, he's lost in space, Your Honor. He has no immunitv. Aqain, 4 58 5 10:16r01 6 10: 15: Smi til on behalf of Srdith Butte-Si-lver Bow, L994, 'rProsecutorial immunity does not shield nr,-rqF.rrf nr f rnm r-ivi l 'l iehi'l itv for "ll faCtSi Or : L0:16:04 1 omisslons.'r Def inite!,y with probab.Ie cause hiere -- I ,m i 10:16:08 I st;rndinn 10:16:12 9 t.o charge me with !respassing today. I don't 16: 14 10 10:16:L9 l.t I don't know, But if there's no probable cause. immuniLy sLops dead, Just |C''L6:22 I2 stops. 10 : nn nuhl'. nr.\nprf w ve\/ha Mr. Be 1I hrould Ii ke It know. would be another year of fun, And in a situation where BeII is in )to,tarzo 13 - 34 !4 L0 r 16; 39 15 l0:16r41 I6 10:L6:45 1'7 10r16|52 18 10:16:54 19 and what she did with -- sworn to a j udge. 10: 1?:01 2A lot of things going on here where the.re's 10: 1?: 02 2I 10:11:06 2?- I0 |It:12 )7 improprieties. I've already asked for official misconduct of Mr. Bell to thi s Court. I don't get answer. I have ln the docket because I believe it 10 : 17: 24 happened. L0 : 16: f10:17:15 14 25 a 20th hearing for an order of protection, t.here is an argument tha! could be made that there,s no p.robable cause for that because there is already indiscrepancies (sic) with the testimony of tlhe November I'Il sonte an kind of end with the fact that there is Taruny Stuckey ** 375-5783 ,-.10:I'7:17 - t0 | 1.'7 |2! 1 2 no criminal case invol ^ .:i vi I nror:eecl ino. I 10:1?r29 A i?i32 5 case involving this 10:1?:36 6 r-o sncak to f l.e fact i0r:.7r41 1 There was no danger at l0 8 !0: : 50 9 l0;:?:53 10 l0:I-7:58 11 10:18:01 I2 1-7 Nov ember 2oth, 2009 was as not allow ed to speFk. I I w was advised by my counsel, w ho had j ust showed up at that time that he wasn't prep ared, We ha ve another criminal 3 t 11 ',44 here. I 10: l'7: 26 10: ve d Tr6cnacci n.! incident. same So f wasnl't aILowed there no danger involved. tha t iS a nO was So this wasn I t a cr imina I ll. t a crlme on public pFoperty if t^ fha re sitting peacefull y drru rL r public. And I'11 just e nd with the fact that this is probabl y the ea s iest dec ision to nak e because I Ken Be.l" ] you I (J I Itorre,ot 13 tn was in a civil courtroon . Therers n a imm.nitr, prosecutors, Your Honor r in a civi.I courtroom. It l0:18r09 74 dneqn v It arPt anw /- t paI.ef than that . And I'd It,ke to I I respect the Court and f hope we move forward'luitn tiri" 10:18:13 15 10: 18 : 16 T6 1.0: 18 r 16 L1 10:18:18 18 eqqirrned lCrl8:21 19 this because I feel strongly that the j.mmunity is 10:18:26 20 something that 1sn't assigned in a civil- courEroom and 1Q:18:29 2I 10: 18 : 31 22 l0:.18:33 23 it should be established in this court, And I thank vou for vour t ine. THE COURT: Very welI, Miss Jone s you may 10r18:34 24 conclude I10:18r35 ZJ If there is immunity assigned or dlsmissaL Tlm.1rrin.r MS t.) ask ihF hirrhcr .-.\trri!vqr i e iA eY lnaz rt JONES: I've al-readv bri.ef ed the scope Taruny Stuckey ** 375-6783 i0;18:44 2 of the duties of the city attorney, which includes appearancee in c j-viI mat!ers. There is no limitation 10:18:4? 3 inh,,^;r-r, 1Q:18:50 4 10:18:53 5 10:19:00 6 10:I9:03 7 ^10:i8:41 v 1 tJ v! ^/ tha u're .1,,f iac vr ^f a e /\r.\ea.rrt.\r Y' on t11 nrrrtlv crirninal matters. There is no case or stafuLt tnat says that, This was a city bustness case because fhe moving parLy for Lhe protect j-ve order was the vicLim of a crirne and was a key witness in another crime, and sQ it was i i I 10:19:07 8 ^IFA-tv relatF.l And pg can ltake t.) .-i t-r' hrrs i neqc it as I ir'.6 hic :lIaa:-inn that She wasn,! a city -l employee. I 9ie 19: I2 9 10: 19: 15 10 can take a]1 of hls allegaLions as true, 10: 19: 17 11 remrinq lC|19:21 I2 proceedings, that Mr. Bell $ras acting in his scope 13 city attorney; that he was entitled to -- is entitl-ed to immunity for his acLions in that regard. Thank you, l0 : 19: 31 15 10:19:33 I6 natter is deemed submitted, The Court will issue a written rul-inq in that matter, 10 : ll0:'19:24 - l0 : 19: 28 I1 thet- .ri q7p6 irrrli^i r'1 h^+ i ^a ^f i r. elated THE COURT: The I pr.\/-aa.l i nde /-.rn.- l ,rrlorl \ 18 t9 20 2I 22 ZJ a 24 Tanmy Stuckey ** Thelfact 3?5-6783 as l0 CERTIFICATE 1 2 3 STATE OE MONTANA COUNT Y OE RAVALL I 5 6 "1 8 9 10 11 1) t3 74 I, Tanara Stuc key, Official Caurt Repo ter for the State of Mon!ana, rln harahrr na rf i f rr. th6 -- --' did on^riThat I was duI y auLrr(J! h.^^66^i in thc 2[ ove-enti-tled cause; ^^c That. the f oreg oj-ng pages of th j.s trans constitute a true and accurate transcription ct-ah^l \rna n/\f ac I further cert 1ry cnar I am noE an ac! rney, nor n6r a ralative :nw ihe narf ipq ^f enployee of any attor ney or counsel connected with the action, nor financia I Iy interested in the act ^^r)nqa I nf IN WITNESS 9{HE REOF, I have hereunLo set my hand on this 2nd day of Se pt ember, 2 01 1 . 15 10 11 t "t 18 19 ara s tuc J(e v off icial Co ur t Repo rt EI Sta te of Mo n! a n a hi Twe nl-rr-I' irs r J u dicial 2A l et ri n# l 2L I 22 ,? 24 25 Tammy Stuckey ** 375-6783

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