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
BURKE, C.J., and DAVIS, KAUTZ, JJ., and TYLER and PERRY, DJJ.
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
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
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).
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
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.
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).
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
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
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
MR. FREEMAN: (Inaudible) taking the vote away from the people
and installing Dick Crandall by the governor was the
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.
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.
On August 17, 2017, Ms. Hill timely appealed both the order
denying her motion to disqualify Judge Campbell, and the
order dismissing her complaint.