Doctors for a Healthy Mont. v. Fox, CV 20-46-M-DLC

478 F.Supp.3d 1068

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

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

CV 20-46-M-DLC

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

Signed August 12, 2020

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

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

ORDER

Dana L. Christensen, District Judge

Plaintiff Doctors for a Healthy Montana (the "committee") brought this lawsuit on April 14, 2020, alleging that Montana Code Annotated § 13-37-210, which governs the naming of political action committees, is unconstitutional. The Court previously denied the committee's motion for a preliminary injunction on the grounds that it had not "demonstrate[d] that [it] [was] likely to suffer irreparable injury in the absence of a preliminary injunction." (Doc. 16 at 11 (quoting Thalheimer v. City of San Diego , 645 F.3d 1109, 1128 (9th Cir. 2011) ).)

The committee filed its motion for summary judgment (Doc. 17) before an answer or other responsive filing was due. Defendants Timothy Fox and Jeffrey Mangan (collectively, the "State") filed their cross-motion for summary judgment (Doc. 23) and, rather than an answer, a motion to strike portions of the Complaint under Rule 12(f) (Doc. 21). The parties represent, and the Court agrees, that this matter is ripe for ruling on summary judgment.

The Court grants the committee's motion for summary judgment and denies that of the State. It also denies as moot the State's motion to strike portions of the Complaint. That said, the Court recognizes that the committee's verified complaint includes allegations which are unverifiable, nonfactual, and not appropriate for consideration in ruling on the cross-motions.¹ Thus, it does not consider any such allegations in this Order.

BACKGROUND

I. The Statute & Its Interpretation

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 office of Commissioner of Political Practices, created by the Montana Legislature in 1975, has oversight over alleged violations of § 13-37-210 and other election law statutes. Mont. Code Ann. §§ 13-37-102, 13-37-111(1). The Commissioner is nominated by a bipartisan group of legislators, appointed by the governor, and confirmed by the senate. Id. With certain exceptions, the Commissioner "is responsible for investigating all ... alleged violations of the election laws" codified in Title 13, Chapter 35 of the Montana Code Annotated. Mont. Code Ann. § 13-37-111(1). Upon completing the investigation, the Commissioner refers the matter to the relevant county attorney if he or she finds "sufficient evidence to justify a civil or criminal prosecution." Mont. Code Ann. § 13-37-124(1). In the event that the county attorney declines prosecution, the matter is referred back to the Commissioner for prosecution. Mont. Code Ann. § 13-37-124(1). Generally, penalties for campaign finance violations are equal to the greater of $500 or three times the unlawful contribution or expenditure. Mont. Code Ann. § 13-3-128.

Interpretation of the statute is governed by a 1999 Advisory Opinion issued by the Commissioner of Political Practices and by prior rulings addressing complaints made under § 13-37-210. See Mont. Comm'r of Political Practices, Interpretation & Enforcement of Naming & Labeling Statute (1999), http://politicalpractices.mt.gov/Portals/144/pdf/5cfp/2001opinions-naming_labeling_statute.pdf. Under the Advisory Opinion, "[d]eterminations of shared economic or special interest [are] based on the ‘name of the employer’ and ‘occupation’ information provided by the contributor and listed in the political committee's [finance] report." Id. Today, that self-reported employer and occupation information is available to the public on the Campaign Electronic Reporting System ("CERS") website at https://cers-ext.mt.gov.

The 1999 Advisory Opinion synthesized prior decisions parsing the statute. Only one decision discussed in the Opinion involved a violation of § 13-37-210. That violation was found when 55% of the contributors to "Montanans for Common Sense Water Laws" were miners or mining companies. Id. On the other hand, the Commissioner did not find a shared "economic or special interest" on the basis of contributions made by: (1) attorneys who represented mining companies; or (2) tire companies, equipment dealers, or other entities with a business relationship with the mining companies. Id.

Similarly, no violation was found where all five of the contributors to "Committee to Defend First Amendment Rights" were businesses or had "business ties"—the contributors, two banking entities, a meat packing firm, the Montana Contractors Association, and an advertising agency, were found to not share an "economic or special interest." And, in In the Matter of the Complaint against the No on CA-30 Committee , Nov. 15, 1996, the Commissioner decided that members of the Montana Board of Regents did not share a common economic or special interest in higher education, presumably because they were not paid for their work on behalf of the university system. Id.

Because contributors come and go, a committee may be allowed—or even required—to change its name according to the jobs held by its contributors. For example, one committee properly changed its name from "Montanans for Experienced Judges" to "Montanans and Lawyers for Experienced Judges" during a period in which only one of the six contributors to the committee was not a lawyer or a lawyers’ group. Mont. Comm'r of Political Practices, Eaton v. Montanans for Experienced Judges , at 4 (Oct. 13, 2016). However, the committee was free to change its name back—and it did—when it gained eight new non-lawyer contributors. Id. The State represents that a committee may be assessed a fine for only that period of time when it is noncompliant. (Doc. 14 at 2–3.) But see Eaton v. Montanans for Experienced Judges , at 2 ("The naming and labeling review of employer and occupation information taken from the campaign finance reports is based on a review of all contributors, regardless of reporting period to the date of filing of the complaint.").

The statute is indifferent to the amount of money attributable to each contributor—it counts heads, not dollars. Mont. Code. Ann. § 13-37-210. Thus, as the Commissioner has noted, "[i]t is not uncommon for political committees, particularly those with [a] low number of contributors, to recruit small dollar contributors so as to avoid a majority of contributors from a single employer or an identifiable economic interest." Eaton v. Montanans for Experienced Judges , at 4 n.6. For example, a committee formed during the 2016 Montana Supreme Court election cycle, "stopsetemfreesandefur.com," had three contributors: the Republican State Leadership Committee gave $93,000 while two individuals contributed $85 each. Id. These two individual contributors formed a majority, "allowing a committee name other than the Republican State Leadership Committee." Id.

II. Legislative History

As discussed in this Court's order denying the committee's motion for a preliminary injunction, § 13-37-210 "was passed without opposition in 1985 as a ‘truth in labeling’ measure, designed to prevent political action committees from misleading the public about their economic and special interests." Doctors for a Healthy Montana , 460 F. Supp. 3d 1023, 1025, (D. Mont. 2020). The legislature was particularly concerned with misleading names chosen by dentists and denturists battling over a 1984 ballot initiative to allow licensed non-dentists to make and insert oral prosthetics. Id.

During Montana's 2019 Legislative Session, Representative Jacob Bachmeier of Havre, Montana, sponsored House Bill 308, which would have repealed § 13-37-210. Defendant and current Commissioner of Political Practices Jeff Mangan spoke in favor of repeal, testifying that the statute was difficult to enforce and obsolete in light of other disclosure requirements. Repeal Provision on Naming & Labeling of Political Committees: Hearing on HB 308 , 66th Leg. (Mont. Feb. 5, 2019), http://sg001-harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV2/20170221/-1/34957?agendaId=125018#info_.

No one testified in opposition to repeal. Id. House Bill 308 passed through committee, and the second reading of the bill passed, 51 to 49, on February 12, 2019. The next day, Representative Fred Anderson of Great Falls, Montana, changed his vote, shifting the majority and killing the bill.

III. Factual & Procedural Background

Plaintiff Doctors for a Healthy Montana formed in February 2020 with the claimed goal of defeating in the 2020 primaries Republican legislators who voted in favor of Medicaid expansion. (Doc. 1 at 2.) At that time, the committee had received contributions of $35 from four individuals, only one of whom was a doctor, Dr. Annie Bukacek, and three of whom were Montana legislators.² The committee was particularly interested in targeting Representative Joel Krautter of Montana House District 35, which covers Richland County, and it leased a billboard in Sydney, Montana opposing Krautter's reelection, proclaiming that he "voted for taxpayer funded abortions."³

Representative Krautter...