Boren v. Gadwa

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MICHAEL BOREN, an individual, Plaintiff-Appellant- Cross Respondent, v. GARY GADWA, an individual, Defendant-Respondent, and SARAH C. MICHAEL, an individual, Defendant-Respondent-Cross Appellant, and JON CONTI, an individual; RICHARD DOUGLAS FOSBURY, an individual; DOES 1-20, Defendants.

No. 50604-2023

Supreme Court of Idaho

December 6, 2024

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Custer County. Stevan H. Thompson District Judge.

The decision of the district court is affirmed in part, reversed in part, and remanded.

Thomas Banducci P.C., Boise; Kirton McConkie, Boise; and Wagstaffe von Loewenfeldt, Busch & Radwick LLP, San Franscisco California (pro hac vice), for Appellant/Cross-Respondent Michael Boren. James M. Wagstaffe argued.

Bailey & Glasser LLP, Boise; and Foundation for Individual Rights &Expression, Washington, District of Columbia (pro hac vice), for Respondent Gary Gadwa. JT Morris argued.

Ferguson Durham, PLLC, Boise, for Respondent/Cross-Appellant Sarah Michael. Deborah A. Ferguson argued.

ZAHN JUSTICE

Michael Boren appeals the district court's decisions dismissing his claims against Gary Gadwa and Sarah Michael and denying his motion to file a second amended complaint. Boren's complaint concerned events that occurred after he applied for a conditional use permit ("CUP") to have an unimproved airstrip on his property declared a designated county airstrip. Gadwa and Michael, along with other concerned citizens, actively opposed Boren's CUP application. Boren's CUP application was ultimately approved.

Following the approval of his CUP application, Boren sued Gadwa, Michael, and others for defamation, defamation per se, conspiracy to commit defamation, and declaratory relief, alleging that they made false statements regarding the nature of the airstrip and Boren's use of it. Boren filed an amended complaint and Gadwa and Michael moved to dismiss Boren's claims pursuant to Idaho Rule of Civil Procedure 12(b)(6), arguing that their statements were protected by the litigation privilege and were constitutionally protected petitioning activity. The district court agreed with Gadwa's and Michael's arguments and dismissed Boren's claims. Boren then moved to amend his complaint a second time, which the district court denied.

Boren appeals the district court's orders dismissing his claims against Gadwa and Michael and denying his motion to file a second amended complaint. For the reasons discussed below, we affirm the district court's decision dismissing Boren's claims in part and reverse it in part. We affirm the district court's decision dismissing Boren's civil conspiracy claim because Boren concedes it was properly dismissed. We also affirm the decision to dismiss Boren's declaratory judgment claim because a decision in Boren's favor would not terminate the uncertainty or controversy giving rise to the proceeding. However, we reverse the decision dismissing most of Boren's defamation claims because the applicability of the absolute litigation privilege and qualified litigation privilege to many of the allegedly defamatory statements is not evident on the face of Boren's complaint. Further, neither the First Amendment of the United States Constitution, nor Article I, section 10 of the Idaho Constitution provides absolute protection for defamatory statements made in the course of protected petitioning activity. We also reverse the district court's decision denying Boren's motion to amend because it was based on the erroneous analysis underlying the dismissal of the defamation claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

Boren appeals from the district court's decision dismissing his first amended complaint pursuant to Idaho Rule of Civil Procedure 12(b)(6). Given the procedural posture of the case, we accept as true all facts pleaded in the first amended complaint. See Owsley v. Idaho Indus. Comm'n, 141 Idaho 129, 136, 106 P.3d 455, 462 (2004). Boren owns Hell Roaring Ranch (the "Ranch"), a 480-acre cattle ranch located within the Sawtooth National Recreation Area ("SNRA"), south of Stanley, Idaho. The Ranch is encumbered by a federal scenic easement administered by the United States Forest Service. For years, Boren has occasionally used a grass area of his property as a runway to land small aircraft, which Boren asserts is an integral part of his ranch management plan. In February 2021, Boren filed a CUP application seeking a "permit for the grass area occasionally used as a runway on [the Ranch] to be offically [sic] recognized by Custer County as a designated county airstrip." Boren stated in his CUP application that there would be no material change in his use of the airstrip, that his use was within regulations, and that his CUP request was a "formality for insurance purposes." Following a public hearing, the Custer County Commissioners approved Boren's application and granted the CUP.

Boren asserts that Gadwa, Michael, and others formed an "opposition group," that viewed Boren's CUP application "as an opportunity to retroactively prohibit Boren's use of his pasture for landing his own aircraft[.]" Boren alleges that Gadwa, Michael, and other members of the opposition group created and disseminated a false narrative regarding his airstrip, including that (1) Boren could not legally land his aircraft on the Ranch; (2) Boren knew he could not legally land his aircraft at the Ranch but continued to do so; (3) Boren constructed an airstrip without obtaining necessary permits; and (4) Boren built the airstrip after telling government officials he was building an irrigation system. Boren alleges that Gadwa, Michael, and the opposition group's false statements continued after his CUP application was approved. He also asserts that, following the CUP approval, they published new defamatory statements, including a statement that the only reason Boren's CUP application was granted was because Boren unfairly and corruptly influenced Custer County officials.

Boren contends that this false narrative spread through the media and on the internet and was repeated by other members of the public that were unaware of the true facts. He asserts that because of the defamatory narrative, his reputation has been damaged, he and his family have received death threats, and he was forced to spend far more money than was otherwise required to obtain CUP approval.

Following the approval of his CUP application, Boren filed a lawsuit in district court asserting claims against Gadwa, Michael, and others for defamation, defamation per se, conspiracy to commit defamation, and declaratory relief. He subsequently filed a first amended complaint. Michael filed a motion to dismiss the first amended complaint and a motion asking the district court to take judicial notice of documents related to the CUP proceedings. Michael argued that the allegedly defamatory statements identified in Boren's lawsuit were made in connection with the CUP proceedings and were therefore protected by the absolute litigation privilege. Gadwa later joined Michael's motion to dismiss.

The district court held a hearing on the motions and subsequently issued a written decision. The district court denied Michael's motion to take judicial notice, concluding that taking judicial notice of documents from the CUP proceedings would convert Michael's motion to dismiss to a motion for summary judgment. However, the district court concluded that Boren's first amended complaint incorporated the CUP-related documents by reference. The district court concluded that it could therefore consider the documents when evaluating the motions to dismiss.

The district court then turned to the merits of the motions to dismiss. The court first addressed the litigation privilege argument and concluded that the litigation privilege applied because each of the allegedly defamatory statements related to and was made in the course of the CUP process. The district court next determined that, even if the absolute litigation privilege did not apply, a qualified litigation privilege applied to any statements made in advance of hearings on the CUP application. The district court then addressed the constitutional arguments and held that the petitioning clause of the First Amendment protected all the allegedly defamatory statements, regardless of whether they occurred before, after or following the CUP hearings because each statement was "made during a petition of the government without any malice alleged." Finally, the district court dismissed Boren's remaining claims for conspiracy to commit defamation and for a declaratory judgment. The court concluded that the conspiracy claim was not an independent cause of action and that the declaratory judgment claim should be dismissed pursuant to Idaho Code section 10-1206 because the requested judgment "would not terminate the uncertainty or controversy" between the parties.

Boren then moved for leave to file a second amended complaint. After a hearing on the motion, the district court issued a written decision that denied the motion because the amendment would be futile. The court concluded that, even if the amendment were allowed, the court's analysis concerning the litigation privilege and constitutional protections for petitioning activity would result in the dismissal of the second amended complaint.

While the district court's decision resolved Boren's claims against Gadwa and Michael, other claims remained against other defendants. Boren moved the district court for entry of a final partial judgment pursuant to Idaho Rule of Civil Procedure 54(b) and to stay the remainder of the proceedings pending appeal pursuant to Idaho Appellate Rule 13.4(c)(1). The district court granted both...