For a few minutes the courtroom was completely silent as attorney Gregory Stevens, standing before the judge, scrolled through documents on his laptop trying to find a page number.
Stevens was representing former Moab City Manager Rebecca Davidson in her civil lawsuit against three individuals – Wyoming resident Connie McMillan, Grand County Council Member Chris Baird and Canyon Country Zephyr publisher Jim Stiles – who she claims defamed her during her tenure with the city. Davidson’s claims against two other individuals were already dismissed in November of last year by 7th District Judge Lyle R. Anderson.
On Tuesday, Feb. 14, Judge Anderson granted the remaining three defendants’ motion for summary judgment, effectively ruling that the plaintiffs had no valid case. The ruling came after a two-hour hearing that culminated in Stevens’ silent search for the exact wording of one of the allegedly defamatory statements.
“Pick the defendant with which you believe you have the best evidence of a false statement,” Anderson said to Stevens near the end of the hearing. Both judge and attorney then spent a long, quiet moment perusing the court record.
Davidson and her co-plaintiffs – Tara Smelt, her then-roommate; and Tayo, Inc., the corporation that Smelt created in June 2015 to provide emergency computer security services to the city of Moab after a consultant recommended by Davidson identified flaws in the city’s system – claimed in their initial filing with the court that the defendants’ claims were defamatory, intentionally inflicted emotional distress on both Davidson and Smelt, and intentionally interfered with Smelt and Tayo, Inc.’s economic relationships. They sought over $5 million in damages.
Throughout the proceedings, Anderson appeared skeptical of the plaintiffs’ claims.
Stevens, in his opening statement, brought up a post made by Connie McMillan on the “Citizens for Transparency at Moab City Hall” Facebook page. In that post, McMillan wrote that Davidson, as the city manager in Kemmerer, Wyoming, “destroyed our community.”
Stevens was arguing that the post “implies a fact,” and could therefore be litigated as a defamatory statement, when Anderson interrupted.
“I’m trying to imagine what that trial would be like,” Anderson said. “A trial to decide whether or not Ms. Davidson destroyed Kemmerer, Wyoming?”
The comment prompted chuckles from some members of the courtroom audience. Nonetheless, Stevens persisted in his argument that the case should proceed to a jury trial to determine whether McMillan’s Facebook posts, Baird’s newspaper op-eds and Stiles’ online news article, all of which questioned Davidson’s conduct as city manager here and in Kemmerer, were false.
“The fact that the internet has normalized behavior like this doesn’t make it lawful and doesn’t make it right,” Stevens said.
Attorney Steve Russell, representing the defendants, argued that none of them had made any false claims. He characterized their public criticisms of Davidson as “classic participation in local government” – the type of feedback that a public official ought to expect.
“You’d better just have a little thicker skin,” Russell said.
As for the claim that their statements intentionally inflicted emotional distress, Russell said, “We are on the dark side of the moon from that standard.”
Stevens argued that Smelt, as the principal of a corporation contracted by the city, should not be considered a public figure.
“Ms. Smelt has received no financial benefit whatsoever from the work performed by Mr. Pearson,” Stevens said. “Ms. Smelt and Tayo, Inc. are not public figures.”
“Ms. Smelt has been unable to find employment,” he said, claiming that the posts online had led multiple potential employers to reject her. The contracts she missed out on, he added, were worth $90,000 per year.
The statements made by McMillan, Baird and Stiles about Smelt also did meet the state law’s standard for intentionally inflicting emotional distress, Stevens argued.
“Posting allegations that never go away against people in their professional lives,” including allegations of criminal behavior, he said, “is outrageous and intolerable.”
Stevens focused on Baird’s statements, which referred to “financial impropriety” and “conflict of interest” in the hiring of Tayo, Inc. But those were the statements he ultimately struggled to find at the judge’s prompting.
“The worst thing that Chris Baird said – where can I find it?” Anderson asked.
“I believe it was in both of the articles that he wrote,” Stevens replied.
Though both attorneys ventured wide in their arguments – Stevens claimed that McMillan has held “a vendetta against Ms. Davidson,” amounting to “stalking,” while Russell once spoke of Davidson as going from one town to the next “wreaking havoc” and leaving with “a bag of money” – the judge’s questions grew increasingly narrow as the trial progressed. By the end he seemed most concerned with establishing, word for word, just what the plaintiffs considered false statements.
In the end, he disagreed that any of the statements in question could be considered disputable facts.
“I find nothing that fits that category,” Anderson said, explaining his decision. “Whether or not Ms. Davidson destroyed Kemmerer, Wyoming, is clearly going to be a matter of opinion.” Again, this line drew chuckles from the courtroom.
“As I’ve tried to zero in on each one of these things … each time I get to what they actually did say, I think they were careful enough,” Anderson continued.
The defendants’ speech, he said, was not only lawful but important to the functioning of local political processes. And he agreed with the suggestion that such criticisms were par for the course for public figures.
“People have said nasty things about me,” Anderson said. “In my view, that goes with the territory.”
Anderson did suggest that the plaintiffs might take their case to the court of appeals.
“I would love to have guidance from above,” he said.
But outside the courtroom, Russell was optimistic that the case would end. Noting that the charges against former defendants Annie Payne and Janet Buckingham had been dismissed completely, he was hopeful the same would happen for McMillan, Baird and Stiles.
“We’re happy with the result,” Russell said.
Judge says criticisms of former city manager “come with the territory”
As I’ve tried to zero in on each one of these things… each time I get to what they actually did say, I think they were careful enough.