Doctors for a Healthy Mont. v. Fox

460 F.Supp.3d 1023

DOCTORS FOR A HEALTHY MONTANA, a Montana Independent Committee, Plaintiff,

v.Timothy FOX, in his official capacity as Attorney General of Montana; and Jeffrey Mangan, in his official capacity as Montana Commissioner of Political Practices, Defendant.

CV 20-46-M-DLC

United States District Court, D. Montana, Missoula Division.

Signed May 13, 2020

Matthew G. Monforton, Monforton Law Offices, Bozeman, MT, for Plaintiff.

Matthew T. Cochenour, Patrick M. Risken, Montana Attorney General, Helena, MT, for Defendant.

ORDER

Dana L. Christensen, District Judge

Before the Court is the Motion for Preliminary Injunction of Plaintiff Doctors for a Healthy Montana (the "committee"). (Doc. 4.) The committee asks the Court to enjoin Defendants Attorney General Timothy Fox and Commissioner of Political Practices Jeff Mangan (collectively, the "State") from enforcing Montana Code Annotated § 13-37-210, which governs the naming of political action committees. The Court denies the motion on the grounds that Doctors for a Healthy Montana have failed to "demonstrate that irreparable injury is likely in the absence of an injunction." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

HISTORICAL & LEGAL BACKGROUND

Montana Code Annotated § 13-37-210 provides that a political committee must "name and identify itself in its organizational statement using a name or phrase: (i) that clearly identifies the economic or special interest, if identifiable, of a majority of its contributors; and (ii) if a majority of its contributors share a common employer, that identifies the employer." Mont. Code Ann. § 13-37-210(1)(a). A committee must then "label any media advertisement or other paid public statement it makes or causes to be made in support of or opposition to any candidate or ballot issue by printing or broadcasting its name." Mont. Code Ann. § 13-37-210(1)(b).

The statute was passed without opposition in 1985 as a "truth in labeling" measure (Doc. 9-1 at 6), designed to prevent political action committees from misleading the public about their economic and special interests. (Doc. 9-1 at 1, 11.) Speaking in favor of the measure, MontPIRG—the Montana Public Interest Research Group, a long-established group run by students at the University of Montana—gave examples of committees with names that disguised the economic interests of contributors. (Doc. 9-1 at 11–21.) For example, because "Citizens for Responsible Government" primarily comprised employees of the Montana Power Co., MontPIRG suggested that a more transparent name would be "Montana Power PAC." (Doc. 9-1 at 18.)

The legislation was introduced largely in response to a heated battle surrounding a 1984 ballot initiative authorizing and regulating denrurity—the making and insertion of oral prosthetics by licensed non-dentists.¹ Dentists formed a majority of the contributors to five committees opposing the initiative. The names of two of the groups, Missoula Dental Laboratories Association and 4th District Dental Society PAC, would have survived under § 13-37-210. But three of the committees’ names—Citizens against I-97, Montanans for Good Health, and Montanans for Seniors against I-97² —would not have. (Doc. 9-1 at 19.) Similarly, a majority denturist-funded group, Montanans for Freedom of Choice in DentalCare, bore a name that failed to disclose its contributors’ shared profession. (Doc. 9-1 at 19.)

Although some lawmakers were concerned about the practicalities of enforcement, no one spoke against the measure, and the labeling act passed unanimously. (Doc. 9-1 at 9.) A bill was introduced in 2019 to repeal the statute, which Commissioner Mangan supported. (Doc. 4 at 22.) However, the bill did not pass, and § 13-37-210 remains law.

FACTUAL BACKGROUND

Doctors for a Healthy Montana was formed as an independent committee in February 2020. The committee advocates for the defeat of Republican state legislators who voted for Medicaid expansion. Doctors for a Healthy Montana reasons that because Medicaid covers medically necessary abortions in Montana, these Republican legislators supported increasing the number of abortions performed at taxpayer expense. (Doc. 1 at 2, 8, 9–11.)

Doctors for a Healthy Montana's largest expenditure to date is for the lease of a billboard in Sidney, Montana, opposing incumbent Republican Representative Joel Krautter of Montana House District 35. (Doc. 1-1.) The billboard features a photograph of a baby and reads: "Joel Krautter voted for taxpayer funded abortions. Email Joel.Krautter@mtleg.gov to ask WHY such a brazen voice against the voiceless." (Doc. 1-1.) The billboard also directs passersby to a website, www.montanafamily.org, for a "legal review" of the Medicaid expansion bill. In small print at the bottom of the billboard is the required disclosure of Doctors for a Healthy Montana's name and address. (Doc. 1-1.)

On April 8, 2020, Representative Krautter filed a complaint with the Commissioner of Political Practices, Jeff Mangan, alleging that Doctors for a Healthy Montana "has violated Montana law code section § 13-37-210(a)(i), MCA, by using a name which fails to identify the economic or special interest of a majority of its contributors." (Doc. 1-5.) Citing what was then the committee's most recent finance report, Krautter noted the existence of only four contributors, only one of whom (Bukacek) "is a doctor; all of the others are politicians." (Doc. 1-5.)³ Commissioner Mangan issued a letter to the committee shortly thereafter, informing it of the complaint, requesting a response, and stating his intent to further investigate the facts relevant to the complaint. (Doc. 1-6.) By all accounts, that investigation remains ongoing. (See Doc. 14 at 3–4.)

The membership of the committee has changed since this lawsuit was filed in early April 2020, and the State recognizes that Doctors for a Healthy Montana is now in compliance with § 13-37-210. The committee has received contributions from a total of eight individuals, four of whom are doctors.⁴ (Doc. 14-1 at 6–11.) The three state legislators who were founding members, Representatives Dan Bartel and Matt Regier and Senator Keith Regier, have made contributions between $700 and $2,000, for a total of $3,600. The primary contributor is Kalispell doctor Ann Bukacek, who has individually given $4,100. The three remaining contributors have given a total of $135.00.

According to its most recent finance report, the committee made eight expenditures during the reporting period beginning March 26, 2020 and ending on April 25, 2020. (Doc. 14-1 at 9–11.) With the exception of one $100 Facebook ad supporting a pro-life incumbent, all expenditures were made in opposition to legislators who voted for Medicaid expansion. (Doc. 14-1 at 6–11.)

LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter , 555 U.S. at 24, 129 S.Ct. 365. "[It] is not a preliminary adjudication on the ultimate merits" but rather "an equitable device for preserving rights pending final resolution of the dispute." Sierra On-Line, Inc. v. Phoenix Software, Inc. , 739 F.2d 1415, 1423 (9th Cir. 1984). Thus, a "district court is not required to make any binding findings of fact; it need only find probabilities that the necessary facts can be proved." Id.

DISCUSSION

Doctors for a Healthy Montana moved for a preliminary injunction on April 15, 2020, the day after it opened this case. It seeks relief on or before May 15, 2020, arguing that § 13-37-210 is unconstitutional and that the statute's continued enforcement will chill the committee's speech leading up Montana's June 2, 2020 primary.

While researching the motion, the Court became aware that additional individuals had made contributions to the committee after this lawsuit was filed, and it ordered the parties to brief the issues arising from this change. (Doc. 11.) In response to that Order, the parties addressed whether, given Doctors for a Healthy Montana's ostensible compliance with § 13-37-210 : (1) a case or controversy exists; (2) the Plaintiff has standing to challenge the statute; and (3) any other issue prevents this Court from exercising jurisdiction over this matter. (Docs. 14 & 15.)

The Court now concludes that, despite the change in membership, jurisdiction exists. However, it also determines that the committee's compliance with the challenged statute requires the Court to deny the motion for a preliminary injunction.

I. Jurisdiction

Doctors for a Healthy Montana has standing to challenge § 13-37-210, and the matter is ripe for decision. " ‘The party invoking federal jurisdiction bears the burden of establishing’ standing." ( Clapper v. Amnesty Int'l USA , 568 U.S. 398, 411–12, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’ " Susan B. Anthony List v. Driehaus. 573 U.S. 149, 157–58, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ).

The question here, relevant to both standing and ripeness,⁵ is whether the committee has suffered an "injury in fact" or such injury is sufficiently certain. The State concedes that "the Committee's current compliance with Mont. Code Ann. § 13-37-210 does not resolve the pending campaign finance complaint before the Commissioner of Political Practices, and if the Committee's name was improper when it engaged in past political advertisements, the Commissioner will likely seek a civil penalty." (Doc. 14 at 3.) The issue, then, is whether a pending investigation for a prior violation constitutes an injury in fact.

"Whether the question is viewed as one of standing or ripeness, ...