10/15/2024
DA 23-0482 Case Number: DA 23-0482
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 233N
JENNIFER LEIGH MURRAY,
Plaintiff and Appellant,
v.
JOHN MICHAEL CONNORS,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2023-272 Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael C. Doggett, Doggett Law Offices, PLLC, Helena, Montana
For Appellee:
Christopher R. Betchie, Hull, Swingley & Betchie, P.C., Helena, Montana
For Intervenor State of Montana:
Austin Knudsen, Montana Attorney General, Christian B. Corrigan, Solicitor General, Brent Mead, Deputy Solicitor General, Helena, Montana
Submitted on Briefs: July 17, 2024 Decided: October 15, 2024
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Jennifer Leigh Murray (Murray) appeals an order from the First Judicial District
Court, Lewis and Clark County, affirming a Justice Court permanent protective order
against her.
¶3 We affirm.
¶4 The Justice Court granted a protective order after finding that Murray subjected
John Michael Connors’ (Connors) son, E.C., “to cruel and unusual harassment” for an
entire year, causing psychological damage requiring counseling. The Justice Court made
several findings around Murray’s behavior, including that she filed false claims about
E.C.’s behavior on the Helena Lions Swim Team to the U.S. Center for SafeSport, U.S.A.
Swimming, and the Helena Lions Swim Team Board. The Justice Court determined
Murray intended her behavior to intimidate, harass, and cause “damaging complaints”
toward the Connors family. The court found that Murray was stalking E.C. and his family.
The facts are not disputed in this appeal.
¶5 Murray appealed the Justice Court protective order to District Court, arguing, in
relevant part, that the allegations against her involved constitutionally protected speech.
2 Murray additionally argued that Montana’s stalking statute is unconstitutional under
Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106 (2023), and thus may not form the
basis for a protective order.
¶6 The District Court ruled that Murray’s conduct was not afforded First Amendment
protection because the speech was intended to impugn E.C.’s character and embarrass and
traumatize him. The District Court further held that Murray misconstrued the stalking
statute, § 45-5-220, MCA, and the statute is constitutionally sufficient.
¶7 Murray raises substantially the same arguments on appeal that she raised below.
¶8 Our review of constitutional questions is plenary. Williams v. Bd. of Cnty. Comm’rs,
2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88.
¶9 The District Court correctly determined that Murray’s “speech” was not protected
speech. “[F]ree speech does not include the right to cause substantial emotional distress
by harassment or intimidation.” State v. Cooney, 271 Mont. 42, 49, 894 P.2d 303, 307
(1995). Behavior that is intended to embarrass, annoy, or harass is not protected by the
First Amendment. State v. Helfrich, 277 Mont. 452, 460, 922 P.2d 1159, 1163–64 (1996)
(citing Colten v. Kentucky, 407 U.S. 104, 109, 92 S. Ct. 1953, 1956 (1972));
see also Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72, 62 S. Ct. 766, 769 (1942)
(“There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’
words . . . .”).
3 ¶10 The Justice Court found that Murray repeatedly harassed E.C., made harassing
remarks and facial expressions towards the Connors, and made complaints, phone calls,
and sent emails—all based on unfounded accusations—that resulted in noticeable
embarrassment and trauma to E.C. The Justice Court found “these incidences disturbing
and a pattern of behavior by both respondents in an attempt to intimidate and harass [E.C.]
and his parents.”1 These facts are uncontroverted, and they fit well within a category of
“speech” that is not protected by the First Amendment. See generally Cooney; Helfrich;
Chaplinsky. While Murray may be correct that her speech does not amount to “fighting
words,” the record indicates that it was at least intended to harass, annoy, and intimidate
the Connors family, which is also not protected speech. Colten, 407 U.S. at 109, 92 S. Ct.
at 1956. Murray disregards the context of her actions, the Justice Court’s findings on intent,
and the effect of her behavior on the Connors family. The District Court correctly
determined Murray’s behavior was not afforded First Amendment protection.
¶11 The District Court also correctly determined that Murray’s protective order was
supported by the stalking statute, § 45-5-220, MCA.
¶12 An individual may file a petition for an order of protection if they, or their children,
are victims of stalking. Section 40-15-102(2)(a), (3), MCA. The stalking statute separately
provides:
A person commits the offense of stalking if the person purposely or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person to:
1 Murray’s mother was also issued an order of protection and appealed. See Noonan v. Connors, No. DA 23-0483, 2024 MT 231N, ___ Mont. ___, ___ P.3d ___. 4 (a) fear for the person’s own safety or the safety of a third person; or
(b) suffer other substantial emotional distress.
Section 45-5-220(1), MCA.
¶13 The United States Supreme Court recently overturned a stalking statute in Colorado,
finding the statute unconstitutional because it contained an objective mens rea element
when the First Amendment requires “some subjective understanding of the threatening
nature” of certain statements. Counterman v. Colorado, 600 U.S. 66, 69, 143 S. Ct. 2106,
2111 (2023).
¶14 Murray argues that, as applied to her, § 45-5-220, MCA, is constitutionally
defective for the same reason as in Counterman. The facts of this case are distinguishable,
however, because Murray was neither charged nor convicted of violating § 45-5-220,
MCA.
¶15 The order of protection statute, § 40-15-102(2)(a) and (3), MCA, does not require a
stalking conviction to grant a protective order. Obviously, a protective order would provide
little recourse if criminal proceedings had to resolve before a victim received court
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10/15/2024
DA 23-0482 Case Number: DA 23-0482
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 233N
JENNIFER LEIGH MURRAY,
Plaintiff and Appellant,
v.
JOHN MICHAEL CONNORS,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2023-272 Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael C. Doggett, Doggett Law Offices, PLLC, Helena, Montana
For Appellee:
Christopher R. Betchie, Hull, Swingley & Betchie, P.C., Helena, Montana
For Intervenor State of Montana:
Austin Knudsen, Montana Attorney General, Christian B. Corrigan, Solicitor General, Brent Mead, Deputy Solicitor General, Helena, Montana
Submitted on Briefs: July 17, 2024 Decided: October 15, 2024
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Jennifer Leigh Murray (Murray) appeals an order from the First Judicial District
Court, Lewis and Clark County, affirming a Justice Court permanent protective order
against her.
¶3 We affirm.
¶4 The Justice Court granted a protective order after finding that Murray subjected
John Michael Connors’ (Connors) son, E.C., “to cruel and unusual harassment” for an
entire year, causing psychological damage requiring counseling. The Justice Court made
several findings around Murray’s behavior, including that she filed false claims about
E.C.’s behavior on the Helena Lions Swim Team to the U.S. Center for SafeSport, U.S.A.
Swimming, and the Helena Lions Swim Team Board. The Justice Court determined
Murray intended her behavior to intimidate, harass, and cause “damaging complaints”
toward the Connors family. The court found that Murray was stalking E.C. and his family.
The facts are not disputed in this appeal.
¶5 Murray appealed the Justice Court protective order to District Court, arguing, in
relevant part, that the allegations against her involved constitutionally protected speech.
2 Murray additionally argued that Montana’s stalking statute is unconstitutional under
Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106 (2023), and thus may not form the
basis for a protective order.
¶6 The District Court ruled that Murray’s conduct was not afforded First Amendment
protection because the speech was intended to impugn E.C.’s character and embarrass and
traumatize him. The District Court further held that Murray misconstrued the stalking
statute, § 45-5-220, MCA, and the statute is constitutionally sufficient.
¶7 Murray raises substantially the same arguments on appeal that she raised below.
¶8 Our review of constitutional questions is plenary. Williams v. Bd. of Cnty. Comm’rs,
2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88.
¶9 The District Court correctly determined that Murray’s “speech” was not protected
speech. “[F]ree speech does not include the right to cause substantial emotional distress
by harassment or intimidation.” State v. Cooney, 271 Mont. 42, 49, 894 P.2d 303, 307
(1995). Behavior that is intended to embarrass, annoy, or harass is not protected by the
First Amendment. State v. Helfrich, 277 Mont. 452, 460, 922 P.2d 1159, 1163–64 (1996)
(citing Colten v. Kentucky, 407 U.S. 104, 109, 92 S. Ct. 1953, 1956 (1972));
see also Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72, 62 S. Ct. 766, 769 (1942)
(“There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’
words . . . .”).
3 ¶10 The Justice Court found that Murray repeatedly harassed E.C., made harassing
remarks and facial expressions towards the Connors, and made complaints, phone calls,
and sent emails—all based on unfounded accusations—that resulted in noticeable
embarrassment and trauma to E.C. The Justice Court found “these incidences disturbing
and a pattern of behavior by both respondents in an attempt to intimidate and harass [E.C.]
and his parents.”1 These facts are uncontroverted, and they fit well within a category of
“speech” that is not protected by the First Amendment. See generally Cooney; Helfrich;
Chaplinsky. While Murray may be correct that her speech does not amount to “fighting
words,” the record indicates that it was at least intended to harass, annoy, and intimidate
the Connors family, which is also not protected speech. Colten, 407 U.S. at 109, 92 S. Ct.
at 1956. Murray disregards the context of her actions, the Justice Court’s findings on intent,
and the effect of her behavior on the Connors family. The District Court correctly
determined Murray’s behavior was not afforded First Amendment protection.
¶11 The District Court also correctly determined that Murray’s protective order was
supported by the stalking statute, § 45-5-220, MCA.
¶12 An individual may file a petition for an order of protection if they, or their children,
are victims of stalking. Section 40-15-102(2)(a), (3), MCA. The stalking statute separately
provides:
A person commits the offense of stalking if the person purposely or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person to:
1 Murray’s mother was also issued an order of protection and appealed. See Noonan v. Connors, No. DA 23-0483, 2024 MT 231N, ___ Mont. ___, ___ P.3d ___. 4 (a) fear for the person’s own safety or the safety of a third person; or
(b) suffer other substantial emotional distress.
Section 45-5-220(1), MCA.
¶13 The United States Supreme Court recently overturned a stalking statute in Colorado,
finding the statute unconstitutional because it contained an objective mens rea element
when the First Amendment requires “some subjective understanding of the threatening
nature” of certain statements. Counterman v. Colorado, 600 U.S. 66, 69, 143 S. Ct. 2106,
2111 (2023).
¶14 Murray argues that, as applied to her, § 45-5-220, MCA, is constitutionally
defective for the same reason as in Counterman. The facts of this case are distinguishable,
however, because Murray was neither charged nor convicted of violating § 45-5-220,
MCA.
¶15 The order of protection statute, § 40-15-102(2)(a) and (3), MCA, does not require a
stalking conviction to grant a protective order. Obviously, a protective order would provide
little recourse if criminal proceedings had to resolve before a victim received court
protection from the charged offender. The civil nature of a protective order proceeding
means that a trial court need only find a violation of one of the offenses enumerated under
the protective order statute on a preponderance of the evidence. The record contains
sufficient evidence, and the Justice Court specifically found, that Murray had the subjective
intent to cause the embarrassment and trauma that E.C. and the Connors family suffered as
5 a result of her actions. Whether § 45-2-220, MCA, is unconstitutional under Counterman
is not at issue.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶17 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON /S/ JIM RICE