Reaffirming Privilege for Parole-Related Communications in Montana Defamation Law:
Commentary on Sliwinski v. Rhodes, 2025 MT 273N
I. Introduction
In Sliwinski v. Rhodes, 2025 MT 273N (DA 25-0385), the Montana Supreme Court addressed whether a prisoner can maintain civil claims for libel, slander, defamation, and civil conspiracy against his former spouse based on her written and oral communications opposing his parole and her social media efforts to mobilize others to do the same.
The opinion is expressly designated as a memorandum opinion under Section I, Paragraph 3(c) of the Montana Supreme Court’s Internal Operating Rules. As such, it:
- “shall not be cited and does not serve as precedent”; and
- will appear only on the Court’s quarterly list of noncitable cases.
Despite its nonprecedential status, the decision is a clear application of settled Montana law on:
- Rule 12(b)(6) motions to dismiss for failure to state a claim;
- the statutory definitions of libel and slander, especially the requirement that the publication be “false and unprivileged”;
- the statutory doctrine of privileged communications in “official proceedings authorized by law,” including parole hearings; and
- the elements of civil conspiracy and the doctrine of futility of amendment.
Collectively, these principles lead the Court to affirm dismissal of the complaint and to uphold the district court’s refusal to allow amendment.
II. Summary of the Opinion
The Montana Supreme Court, in an opinion authored by Justice Ingrid Gustafson and joined unanimously by the participating justices, affirmed the Jefferson County District Court’s order dismissing the complaint of appellant Thomas Sliwinski against appellee Leah Michelle Comeau (Comeau-Rhodes) under M. R. Civ. P. 12(b)(6), and further affirmed the district court’s decision not to grant leave to amend.
Key holdings:
-
Defamation-based claims fail as a matter of law.
All of Sliwinski’s libel, slander, and “defamation” claims are predicated on statements made:- directly by Rhodes to the Montana Board of Pardons and Parole (MBPP) in connection with his January 2025 parole hearing; and
- on social media and to family members, encouraging them to write to MBPP opposing his release.
- Communications made in connection with an MBPP parole hearing are “privileged communications” under § 27‑1‑804(2), MCA, because a parole hearing is an “official proceeding authorized by law.”
- Because both libel (§ 27‑1‑802, MCA) and slander (§ 27‑1‑803, MCA) require a “false and unprivileged publication,” privileged statements cannot be defamatory as a matter of law.
- Rhodes’s statements, both to MBPP and on social media, were also characterized as generalized expressions of opinion, which are nonactionable under Montana defamation law.
-
Civil conspiracy claim is not sufficiently pled and is derivative.
Applying long-standing Montana precedent, the Court holds:- Sliwinski did not allege facts establishing a “meeting of the minds” or any “unlawful overt act,” both required elements of civil conspiracy.
- A civil conspiracy cause of action is derivative: it requires an underlying tort or wrong. Because the defamation claims fail, the conspiracy claim fails as well.
-
Denial of leave to amend was proper because amendment would be futile.
The district court expressly considered whether to allow amendment, but concluded there was nothing to suggest that Sliwinski could allege additional facts sufficient to overcome the legal defects—particularly the privilege attaching to the communications at issue. The Supreme Court agrees that amendment would be futile, and thus that the district court did not abuse its discretion. -
Standard-of-review and procedural posture.
The Court:- reviews the Rule 12(b)(6) dismissal de novo (for correctness); and
- reviews the denial of leave to amend for abuse of discretion, while reviewing futility de novo.
III. Analysis
A. Factual and Procedural Background
To understand the Court’s application of defamation and civil conspiracy principles, it is important to situate the dispute within the underlying criminal history and parole context.
1. Underlying criminal history
The Court recites the following background (already described in earlier appellate litigation, State v. Sliwinski, 2018 MT 226N, “Sliwinski I”):
- Sliwinski married Rhodes in December 1991; they divorced in the early 2000s.
- In January 2003, he was charged with sexual intercourse without consent, stemming from sexual activity with his 14‑year‑old stepdaughter.
- In March 2003, he pled guilty instead to criminal endangerment, admitting that in 1995–1996 he took the girl (then 15) “as a wife” and engaged in sexual relations with her, resulting in a child born in October 1996. He received a ten‑year suspended sentence.
- In May 2004, he was convicted of tampering with or fabricating evidence and received another ten‑year sentence, consecutive to the criminal endangerment sentence.
- As sentencing conditions, he was required to register as a sex offender and complete sex offender treatment.
In 2004, while still living with the victim and minor children and not complying with treatment, he:
- was terminated from sex offender treatment;
- faced revocation proceedings; and
- absconded to Mexico with the victim and minor children, living as a fugitive for over ten years.
Upon apprehension and return to Montana, he faced revocation and bail‑jumping proceedings. The district court revoked his suspended sentences and, in 2016, imposed ten years’ imprisonment on the criminal endangerment conviction, plus a consecutive five-year suspended term on the tampering conviction. His appeal in Sliwinski I was unsuccessful.
A footnote in the present opinion notes electronic records reflecting that on March 22, 2017, he received a 40‑year sentence for bail jumping. He has been incarcerated for several years and, by January 2025, came before the Montana Board of Pardons and Parole for a parole hearing, at which he was denied parole.
2. The civil complaint
After the January 2025 parole denial, Sliwinski, acting pro se, filed a civil complaint in the Fifth Judicial District Court (Jefferson County) against Rhodes. He alleged four claims:
- Libel;
- Slander;
- “Defamation” (treated by the Court as subsumed within libel/slander under § 27‑1‑801, MCA); and
- Civil conspiracy.
Core allegations:
- Rhodes made written and oral “publications” to the MBPP urging that he be denied parole.
- She also posted on social media and communicated with family and others, urging that they contact MBPP and advocate against his release.
- He claimed that in these communications she called him a:
- “child abuser,”
- “child rapist,”
- “wife abuser,”
- “violent person,”
- “in prison for rape,” and stated that she “hates” him and wants him to remain in prison.
- He asserted these statements caused or contributed to his denial of parole and harmed his relationships with family and others.
- His “civil conspiracy” claim essentially alleged that Rhodes “invited” her social media followers to join in writing to the MBPP, thus conspiring to deprive him of parole.
Rhodes moved to dismiss under M. R. Civ. P. 12(b)(6) for failure to state a claim. The district court granted the motion on May 7, 2025, dismissing all claims. On May 22, 2025, Sliwinski moved for leave to amend, but the district court, having already considered the possibility of amendment in its dismissal order, declined to authorize amendment, reasoning that any amendment would be futile. Sliwinski filed a notice of appeal on May 23, 2025.
B. Precedents and Authorities Cited
The Court’s opinion relies primarily on Montana statutes and a line of prior Montana decisions articulating standards for:
- Rule 12(b)(6) motions and pleading requirements;
- the nature of actionable defamation;
- civil conspiracy elements; and
- futility of amendment.
1. Rule 12(b)(6) and pleading standards
The Court quotes extensively from Anderson v. ReconTrust Co., N.A., 2017 MT 313, 390 Mont. 12, 407 P.3d 692, which itself synthesized decades of Montana precedent on Rule 12(b)(6):
-
Under Rule 12(b)(6), a claim is subject to dismissal if, as pled, it either:
- fails to state a cognizable legal theory for relief; or
- states a cognizable legal theory, but fails to plead sufficient facts that, if true, would entitle the claimant to relief.
- The court must accept well‑pled factual allegations as true, view them in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. (Kleinhesselink v. Chevron, U.S.A., 277 Mont. 158, 920 P.2d 108; Boreen v. Christensen, 267 Mont. 405, 884 P.2d 761; Willson v. Taylor, 194 Mont. 123, 634 P.2d 1180.)
- But liberal notice pleading does not excuse failure to allege the elements of a recognized claim. Complaints must allege more than facts that “at most, would breed only a suspicion” of entitlement to relief. (Fandrich v. Capital Ford Lincoln Mercury, 272 Mont. 425, 901 P.2d 112; Ryan v. City of Bozeman, 279 Mont. 507, 928 P.2d 228; Mysse v. Martens, 279 Mont. 253, 926 P.2d 765; Jones v. Montana University System, 2007 MT 82, 337 Mont. 1.)
By reciting this chain of cases, the Court situates its analysis squarely within long‑established Montana doctrine: a complaint must identify a valid legal theory and allege facts that, if assumed true, satisfy each element.
2. Futility of amendment
On the question of whether the district court should have allowed amendment, the Court cites Advocates for School Trust Lands v. State, 2022 MT 46, 408 Mont. 39, 505 P.3d 825. That case confirms two intertwined propositions:
- Denial of a motion to amend is reviewed for abuse of discretion; but
- Whether a proposed amendment would be futile—i.e., would still fail to state a claim—is a question of law reviewed de novo.
By invoking Advocates, the Court signals that the dispositive issue here is legal: even if Sliwinski amended, the privilege and opinion doctrines would still bar his claims.
3. Opinion versus actionable defamation: McConkey
On what kinds of statements can be defamatory, the Court cites McConkey v. Flathead Electric Cooperative, Inc., 2005 MT 334, 330 Mont. 48, 125 P.3d 1121. In McConkey, the Court reaffirmed a key First‑Amendment‑informed rule:
“A basic principle in the law of defamation is that an expression of opinion generally does not carry a defamatory meaning and is thus not actionable.” (McConkey, ¶ 49.)
This principle applies when statements are recognizable as opinions, value judgments, or characterizations, particularly where the underlying factual basis is disclosed or known. Here, the Court deploys McConkey to categorize Rhodes’s characterizations of Sliwinski (e.g., “child abuser,” etc.) as generalized statements of opinion.
4. Civil conspiracy: Schumacker and Simmons Oil
The Court relies on Schumacker v. Meridian Oil Co., 1998 MT 79, 288 Mont. 217, 956 P.2d 1370, quoting its formulation (itself derived from Simmons Oil Corp. v. Holly Corp., 258 Mont. 79, 852 P.2d 523 (1993)) of the elements of civil conspiracy:
- Two or more persons (including corporations as “persons”);
- An object to be accomplished;
- A meeting of the minds on that object or course of action;
- One or more unlawful overt acts; and
- Damages as the proximate result.
Critically, Schumacker underscores that “it is not the conspiracy itself that gives rise to the cause of action; it is the torts committed or the wrong done in furtherance of a civil conspiracy that do so.” This makes conspiracy claims derivative. Without an underlying tortious act, civil conspiracy cannot stand.
C. Legal Reasoning in Detail
1. Defamation framework under Montana statutes
The Court grounds its defamation analysis in Montana’s statutory framework:
- § 27‑1‑801, MCA: “Defamation is effected by either libel or slander.”
- § 27‑1‑802, MCA (Libel): Libel is defined as a “false and unprivileged publication” that exposes a person to hatred, contempt, ridicule, or obloquy; causes the person to be shunned or avoided; or tends to injure the person in the person’s occupation.
-
§ 27‑1‑803, MCA (Slander): Slander is likewise defined as a “false and unprivileged publication other than libel” that, among other things:
- charges a person with a crime;
- imputes certain diseases;
- tends to injure a person in defined respects; or
- by natural consequence causes actual damage.
- § 27‑1‑804, MCA (Privileged communications): A “privileged communication” includes one made “in any judicial proceeding or in any other official proceeding authorized by law” (§ 27‑1‑804(2), MCA).
These statutes are tightly interconnected. Because both libel and slander explicitly require the publication to be unprivileged, the presence of privilege is not a defense raised after all elements are otherwise satisfied—it negates an element of the tort itself.
2. Are parole-related communications “privileged communications”?
The centerpiece of the Court’s reasoning is its application of § 27‑1‑804(2), MCA.
The statute protects communications made in “any judicial proceeding or in any other official proceeding authorized by law.” The Court holds:
- A parole hearing before the MBPP is an “official proceeding authorized by law.”
- Therefore, communications made to MBPP “in connection with” such a proceeding fall within the statutory privilege.
The Court explicitly concludes:
- Rhodes’s direct letters and statements to MBPP, in which she urged that parole be denied, are privileged communications under § 27‑1‑804(2), MCA.
- Even her communications to family and social media followers—encouraging them to write MBPP and express opposition to parole—are “related to” and “made in relation to” the official parole proceeding and therefore also privileged.
This is important doctrinally: the Court does not limit privilege to statements made inside the four corners of the administrative proceeding. It extends the privilege to communications that are part of mobilizing participation in that proceeding, so long as the subject matter is the parole hearing.
Once the Court classifies these communications as privileged, it reasons:
- Because libel and slander both require a “false and unprivileged publication,” and privilege is absent here, Sliwinski’s defamation claims fail as a matter of law.
- Having found privilege, the Court “need not also consider their veracity or their impact on Sliwinski” to determine that they cannot form the basis of libel or slander claims.
In other words, the Court resolves the claims on the privilege element, avoiding any need to analyze:
- whether the statements were “false,” given the underlying criminal history touching on sex with a minor; or
- whether the statements actually caused the parole denial or reputational harm.
3. Opinion versus fact: nonactionable “generalized statements of opinion”
Although the privilege analysis is dispositive, the Court adds an alternative ground: Rhodes’s statements, even apart from privilege, are nonactionable as defamation because they are “generalized statements of opinion.”
After reviewing the record, the Court agrees with the district court that Rhodes’s publications:
- are “generalized statements of opinion as to her characterizations of his convictions,”
- reflect “her desire he remain incarcerated,” and
- express “her significant dislike of Sliwinski.”
Under McConkey, such value‑laden characterizations do not “carry a defamatory meaning” typically cognizable in law. They are opinions about:
- how to interpret existing convictions and conduct (e.g., using the term “child rapist” to label conduct involving sex with a 14- or 15‑year‑old); and
- subjective beliefs and preferences (e.g., stating she “hates” him and wants him to remain in prison).
This part of the reasoning is consistent with broader defamation doctrine: when a speaker expresses a moral or value judgment based on disclosed or known facts, defamation law generally treats that speech as nonactionable opinion, not as a false assertion of unknown fact. The Court emphasizes that these statements, when fairly read in context, are opinions and emotional reactions to established history, not covert factual claims.
4. Civil conspiracy: failure to plead elements and lack of underlying wrong
Turning to the civil conspiracy claim, the Court applies the elements articulated in Schumacker and Simmons Oil:
- Two or more persons: Alleged (Rhodes plus others she encouraged).
- An object to be accomplished: Alleged (to secure denial of parole).
- Meeting of the minds on the object or course of action: Not alleged factually.
- One or more unlawful overt acts: Not alleged factually, because all alleged acts are privileged communications.
- Damages as the proximate result: Alleged (parole denial and relational harms).
The Court concludes:
- Even assuming the fact of communications and the goal of parole denial, the complaint lacks factual allegations showing a meeting of the minds—that is, an agreement among multiple persons to pursue an unlawful objective or lawfully pursue an objective by unlawful means.
- No unlawful overt act is alleged. The alleged conduct—writing to the parole board and encouraging others to do so—is itself lawful and privileged.
Moreover, drawing on the derivative nature of civil conspiracy:
- Because the underlying torts (libel, slander, defamation) fail as a matter of law, there is no independent “wrong” in furtherance of which the alleged conspiracy could operate.
- Thus, even if the “meeting of the minds” were adequately pled, the conspiracy claim would still fail for want of an underlying tort.
Accordingly, the Court holds that taking all alleged facts as true, the civil conspiracy count does not state a claim upon which relief can be granted and was properly dismissed under Rule 12(b)(6).
5. Denial of leave to amend: futility
Finally, Sliwinski argues on appeal that the district court erred in not allowing him to amend his complaint to cure any deficiencies.
The Supreme Court notes that the district court:
- specifically considered whether to grant leave to amend; but
- found “nothing in his briefing to suggest he would be able to allege sufficient facts to survive a Rule 12(b)(6) motion.”
The district court focused on a crucial point: Sliwinski’s claims are “premised upon privileged publications being made to MBPP which purportedly caused him damage—denial of parole and loss of interpersonal relationships.” Since privilege is a legal barrier, no amount of factual augmentation about the content, impact, or motives behind these communications could overcome the statutory privilege.
The Montana Supreme Court agrees, holding:
- The defect is not merely one of insufficient factual detail; it is a legal defect: the communications at issue are privileged and thus cannot, as a matter of law, constitute libel or slander.
- Therefore, any amendment would be futile, and the district court acted within its discretion in denying leave to amend.
This underscores an important practice point: where a claim fails because of a categorical legal bar—such as statutory privilege—amendment is typically futile unless the plaintiff can shift to a different factual universe not controlled by that bar (which Sliwinski neither proposed nor suggested).
D. Impact and Significance
Though expressly nonprecedential, the opinion is instructive on several fronts within Montana civil and correctional law:
1. Robust protection for victim and family participation in parole proceedings
By classifying communications to MBPP as “privileged communications” under § 27‑1‑804(2), MCA, and extending that privilege to related social media efforts encouraging others to write to the Board, the Court reinforces a strong protective shield for those who:
- submit victim-impact letters;
- express opinions on offender rehabilitation and dangerousness; or
- urge the Board to deny parole.
This protection:
- reduces the risk that victims and their families will be chilled from participating in parole processes by fear of retaliatory defamation suits; and
- aligns with broader policy goals of encouraging victim input and community participation in parole decisions.
2. Clarifying the reach of the “official proceeding” privilege
The decision highlights that the privilege for “official proceedings authorized by law” is not confined to courtroom testimony. It extends to:
- administrative or quasi-judicial proceedings such as parole hearings; and
- communications reasonably aimed at influencing or participating in those proceedings.
The Court’s willingness to treat social media posts, when directly encouraging letters to MBPP, as part of communication “in relation to” the official parole proceeding is especially noteworthy. It suggests a functional approach: if the speech is in service of the official proceeding, it is covered, even if made on informal platforms.
3. Preserving the line between opinion and actionable defamation
The opinion reinforces Montana’s adherence to the principle that:
- Expressions of opinion, moral judgment, and emotional reaction—especially where they refer to or are grounded in known past conduct or convictions—are generally nonactionable in defamation.
Applied to the facts:
- Characterizations such as “child abuser” or “violent person,” directed toward someone with the documented history described in the opinion, are treated as generalized opinion, not covert factual claims requiring proof of falsity.
This doctrinal line is essential for protecting speech that evaluates or criticizes others based on reported or adjudicated facts—particularly in contexts like parole hearings, politics, and public safety debates.
4. Constraint on prisoner-filed tort suits against critics
Practically, this decision sends a clear message to incarcerated plaintiffs:
- Civil suits seeking to punish or deter victims, former spouses, or community members from opposing parole will likely fail if based on communications in or relating to the parole process, given the statutory privilege.
- Courts will apply settled civil procedure principles and defamation doctrine even where plaintiffs are self-represented and incarcerated; pro se status does not relax the requirement to plead a viable legal claim.
Though noncitable, this memorandum opinion signals how the Montana Supreme Court is likely to treat similar future claims, and it provides guidance to district courts facing comparable Rule 12(b)(6) motions.
5. Civil procedure: futility of amendment
The case also illustrates the interaction between:
- liberal amendment policies; and
- the doctrine of futility where a legal bar (like statutory privilege) is insurmountable on the facts asserted.
Even though Rule 15 generally favors allowing amendment, courts are not obliged to invite endless re-pleading when the problem is that the law does not recognize a claim on the alleged type of conduct. The Court’s affirmance here reinforces that distinction.
IV. Complex Concepts Simplified
For readers less familiar with legal terminology, the following explanations may help clarify the opinion’s concepts:
1. Rule 12(b)(6): “Failure to state a claim”
A motion under M. R. Civ. P. 12(b)(6) asks:
- Even if everything in the complaint is assumed true, does the law recognize a claim on these facts?
The court does not decide who is telling the truth at this stage. Instead, it:
- accepts the plaintiff’s factual allegations as true;
- applies the law to those facts; and
- dismisses the case if either:
- no legal cause of action exists for the situation described; or
- the plaintiff has not alleged facts to support the required elements of a recognized claim.
2. Defamation, libel, and slander
- Defamation is the broader concept: injury to a person’s reputation by false statements.
- Libel is written defamation.
- Slander is spoken defamation.
In Montana, both libel and slander require that the statement be:
- false; and
- unprivileged.
If the statement is either privileged or true (or both), there is no defamation claim.
3. Privileged communications
A privileged communication is a statement that the law immunizes from defamation liability, usually to encourage free and open communication in certain settings (for example, judicial or legislative proceedings).
Under § 27‑1‑804(2), MCA, communications made:
- “in any judicial proceeding”; or
- “in any other official proceeding authorized by law”
are privileged. The opinion treats:
- parole hearings as “official proceedings authorized by law”; and
- letters, testimony, and related communications to the parole board (and calls on others to write to the board) as falling within this statutory privilege.
Because libel and slander require an unprivileged communication, the presence of privilege means there is no defamation as a matter of law.
4. Opinion versus fact in defamation
Defamation law distinguishes between:
- Statements of fact that can be proven true or false; and
- Opinions or value judgments, which express beliefs, assessments, or characterizations.
Generally:
- Only false statements of fact (or statements that imply undisclosed defamatory facts) are actionable.
- “Generalized statements of opinion”—especially when they are clearly expressions of emotion or based on known facts—are usually not actionable.
5. Civil conspiracy
A civil conspiracy is not itself a standalone wrong. Instead, it is a way of holding multiple people liable for a wrongful act they agreed to and helped carry out. To prove it, a plaintiff must show:
- Two or more people agreed on an objection or course of action;
- They had a “meeting of the minds” about that plan;
- At least one of them committed an unlawful overt act (e.g., a tort or crime) to further the plan; and
- The plaintiff was damaged as a result.
If the underlying act is not wrongful—because it is privileged, lawful, or otherwise not tortious—the conspiracy claim collapses.
6. Futility of amendment
Ordinarily, courts allow plaintiffs to amend complaints that are defective. But amendment is considered futile when:
- no additional facts could cure the legal defect; or
- the law simply does not provide relief for the type of conduct alleged.
In such cases, courts may properly deny leave to amend because additional pleading would not change the outcome.
7. Memorandum opinion / noncitable decision
Under the Montana Supreme Court’s Internal Operating Rules:
- A memorandum opinion is used when the case is controlled by settled law or by straightforward application of existing standards of review.
- These decisions are designated as noncitable and do not constitute binding precedent, although they are published in quarterly lists.
V. Conclusion
Sliwinski v. Rhodes is formally a nonprecedential memorandum opinion, but it offers a clear and tightly reasoned application of Montana’s defamation, civil conspiracy, and procedural doctrines to a recurrent factual scenario: an incarcerated person sues a former spouse or victim for statements made in opposition to parole.
The key takeaways are:
- Privilege is determinative. Communications made to the MBPP in connection with a parole hearing—and closely related efforts to solicit others’ input—are “privileged communications” under § 27‑1‑804(2), MCA. Because libel and slander require “false and unprivileged” publications, privileged statements cannot ground a defamation claim, regardless of their emotional tenor or asserted impact.
- Opinion remains protected speech. Generalized characterizations and expressions of dislike, particularly where they rest on known facts or convictions, are treated as nonactionable opinion under McConkey and general defamation doctrine.
- Civil conspiracy is derivative. Without an underlying tort or wrongful act (here, because of privilege and lack of defamation), a conspiracy claim cannot stand. Mere coordination in lawful, privileged advocacy—like writing to a parole board—is not an “unlawful overt act.”
- Futility limits amendment. Where a complaint’s fatal defect lies in a categorical legal bar—such as statutory privilege—courts properly deny leave to amend because no amount of factual restyling can transform privileged conduct into an actionable tort.
In the broader legal context, the opinion reinforces doctrinal and policy commitments to:
- protect open and candid participation in official proceedings, including parole hearings;
- shield victims and concerned persons from retaliatory litigation premised on their input to decision‑making bodies; and
- maintain rigorous pleading and motion-to-dismiss standards, even when plaintiffs are self-represented and incarcerated.
While Sliwinski v. Rhodes cannot be cited as binding authority, it is a lucid illustration of how Montana courts will likely continue to apply statutory privilege and defamation principles to parole-related speech, and a practical guide for lawyers and litigants evaluating the viability of similar claims.
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