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Hill v. Stubson

Supreme Court of Wyoming

June 25, 2018

CYNTHIA JO HILL, Appellant (Plaintiff),
TIMOTHY M. STUBSON, Appellee (Defendant).

          Appeal from the District Court of Natrona County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: Drake D. Hill, Hill Law Firm, LLC, Cheyenne, Wyoming; Robert J. DiLorenzo, Attorney at Law, Emblem, Wyoming. Argument by Mr. Hill.

          Representing Appellee: Monty L. Barnett and Rachel E. Ryckman of White & Steele, P.C., Denver, Colorado. Argument by Mr. Barnett.

          Before BURKE, C.J., and DAVIS, KAUTZ, JJ., and TYLER and PERRY, DJJ.

          DAVIS, JUSTICE.

         [¶1] Plaintiff Cynthia Hill filed a complaint against Defendant Timothy Stubson, asserting claims for defamation per se and injunctive relief after he made statements critical of her performance as Superintendent of Public Instruction. The district court found that Mr. Stubson's statements implicated First Amendment concerns and dismissed Ms. Hill's complaint for failure to allege facts sufficient to support the constitutionally-required showing of actual malice. We affirm the dismissal of Ms. Hill's complaint, though on grounds different from those expressed by the district court.


         [¶2] Ms. Hill presents five issues on appeal, which we summarize and restate in the following three issues:

1. Did Ms. Hill's complaint allege facts sufficient to state a claim for actual malice?
2. Was Ms. Hill's complaint subject to dismissal under W.R.C.P. 12(b)(6) for failure to allege facts sufficient to state a claim for defamation per se?
3. Did the district court err in denying Ms. Hill's motion to disqualify the assigned judge for cause pursuant to W.R.C.P. 40.1(b)(2)?


         [¶3] By way of background, this defamation action relates to a controversy that arose while Ms. Hill was serving as Wyoming's Superintendent of Public Instruction. In January 2013, the Wyoming Legislature passed a law, commonly known as SF104, that significantly constricted the superintendent's authority and duties. Ms. Hill filed a legal action challenging the constitutionality of SF104, and that case resulted in a ruling from this Court declaring the legislation unconstitutional. Powers v. State, 2014 WY 15, 318 P.3d 300 (Wyo. 2014).

         [¶4] In 2016, Mr. Stubson, who as state legislator voted in favor of SF104, was running for the United States House of Representatives. During his campaign, Mr. Stubson was asked about his support for the legislation, and in response, he made statements critical of Ms. Hill's performance as superintendent.

         [¶5] On February 22, 2016, Ms. Hill filed a complaint against Mr. Stubson alleging defamation per se and seeking injunctive relief. On April 11, 2016, Mr. Stubson responded with a Rule 12 motion for a more definite statement and a motion to strike. On that same date, the district judge assigned to the case, Judge Daniel Forgey, sua sponte issued an order reassigning the case to the Honorable Thomas T.C. Campbell in the First Judicial District.

         [¶6] On May 26, 2016, Ms. Hill filed a W.R.C.P. 40.1(b)(2) motion to disqualify Judge Campbell for cause. As grounds for her motion, she pointed to his adverse rulings in her prior action challenging the constitutionality of SF104, and she claimed that because he faced public criticism for his rulings, he developed a bias against her. Judge Campbell assigned the motion to the Honorable Wade Waldrip in the Second Judicial District for hearing, and on June 27, 2016, Judge Waldrip entered an order denying the motion. In his ruling, he explained:

Here, Ms. Hill points to no fact, nor has she articulated in argument, that the rulings of Judge Campbell somehow show bias or prejudice against her. Ms. Hill does not direct this Court's attention to anything in the record suggesting that Judge Campbell harbored personal bias or prejudice against her. Instead, Ms. Hill appears to rely upon the fact that Judge Campbell's decisions and rulings in the previous case were adverse to her and/or were not publicly popular as grounds for forming an unsupported conclusion that Judge Campbell now is prejudiced against her in the current litigation. Ms. Hill has provided no evidence that Judge Campbell has formed an opinion about this action; has a personal bias for or against any of the parties; or that his decision in the prior case was based on any grounds other than the evidence placed before him. See TZ Land & Cattle Co. v. Condict, 795 P.2d 1204 (Wyo. 1990). Without a valid reason for recusal, Judge Campbell still has what has been termed a "duty to sit." See Hopkinson v. State, 679 P.2d 1008, 1031 (Wyo. 1984).

         [¶7] Judge Campbell thereafter heard argument on Mr. Stubson's motion for a more definite statement and motion to strike portions of the complaint. The court denied and granted each motion in part, and also granted Ms. Hill leave to amend her complaint.

         [¶8] On December 12, 2016, Ms. Hill filed her amended complaint. The amended complaint alleged that Mr. Stubson made defamatory statements about Ms. Hill on two occasions. The complaint described those statements as follows (emphasis and brackets in original):

10. On February 8, 2016, on his Stubson for Congress Facebook Account, a journalist from Fremont County, Wyoming asked for the Defendant's position on his vote in January of 2013 on legislation called "SF104." SF104 related to the divesting of duties from the elected Superintendent of Public Instruction and transfer of those duties to a governor appointee. SF104 was later held to be unconstitutional by the Wyoming Supreme Court in a case entitled Powers v. Mead. On February 8, 2016, in response to the question relating specifically to his vote on SF104, the Defendant broadcasted and published to the over 800 persons connected to his Facebook Account that Cindy Hill (the Plaintiff) was not following the law and was out of control.
11. In the same posting, the Defendant declared, broadcasted, and published that, in reference to SF104, we [the Wyoming Legislature] had to stop her (referring to the Plaintiff).
12. In the same posting, the Defendant declared, broadcasted and published through the Facebook Account that the Plaintiff had committed many illegal acts that they [legislators] did not disclose publicly. On the face of the declaration and publication, the statements attributed flagrant and wide spread criminal wrongdoing, which was not true.
15. * * * In a debate held in Cheyenne, Wyoming on June 24, 2016, hosted by the Cheyenne Chamber of Commerce and KGAB radio, the Defendant was asked about SF104. The following exchange occurred as reflected in Exhibit "B" to this Amended Complaint:
MR. FREEMAN: You were a big proponent of SF-104, which basically would take our rights of the people here in Wyoming to be able to vote who we wanted for for superintendent of public instruction. I believe Senator Leland Christensen also supported that. Not only did you support it, you pushed for it. It was shot down a few different times by the Supreme Court.
Because of your record here concerning that here, how can we expect you to represent us in Washington, D.C., sir?
MR. STUBSON: Well, I think you mischaracterize the legislation. Everyone had the right to vote for the superintendent. What we did is we talked about what powers that the superintendent would have.
And you know, frankly that's the beauty of experience. We did - the bill went before the Supreme Court, and the Supreme Court on a 3-2 ruling decided that it did not pass constitutional muster. And - and we went back to the drawing board to answer those issues and make sure that we had an education system that really responded to the education of our kids, and that was really the fundamental issue. When you had a state department that wasn't answering its really basic obligations around the state of Wyoming, something needs to - something needed to happen.
MR. FREEMAN: (Inaudible) taking the vote away from the people and installing Dick Crandall by the governor was the solution, sir?
MR. STUBSON: No, that's not what I said. What I said is that we had to change those duties that the superintendent was not fulfilling, and I felt we needed to put them in other hands. And the Supreme Court disagreed, and so we went back to the drawing board, and that's okay. And I - I stand - I'll live by that Supreme Court decision, and that's because of what I was just talking about, the rule of law. The Supreme Court made that decision, so we went back and continued our work to make sure that the kids of Wyoming got a first-class education -
MR. FREEMAN: Thank you, sir.

         [¶9] On January 3, 2017, Mr. Stubson filed a W.R.C.P. 12(b)(6) motion to dismiss on the grounds that his statements about Ms. Hill were First Amendment-protected speech, and that the complaint failed to allege facts sufficient to show actual malice. On July 26, 2017, the district court entered an order granting the motion to dismiss. The court explained:

20. Ultimately, taking Plaintiff's allegations as true, Plaintiff has not made out a claim of actual malice. This strict standard requires proof that is clear, precise, and unmistakable, free from serious and substantial doubt. In this case, Plaintiff's allegations are insufficient and instead require the inference of actual malice from, at best, a tenuous set of facts.

         [¶10] On August 17, 2017, Ms. Hill timely appealed both the order denying her motion to disqualify Judge Campbell, and the order dismissing her complaint.

         STANDARD ...

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