Monforton v. Motl

401 Mont. 38

469 P.3d 709

2020 MT 202

Matthew MONFORTON, Petitioner and Appellant,

v.Jonathan MOTL, Respondent and Appellee.

DA 20-0050

Supreme Court of Montana.

Submitted on Briefs: July 1, 2020

Decided: August 11, 2020

For Appellant: Matthew G. Monforton, Self-Represented, Bozeman, Montana

For Appellee: Jaime MacNaughton, Attorney at Law, Helena, Montana, Gene R. Jarussi, Heenan & Cook, Billings, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Appellant Matthew Monforton (Monforton) appeals a December 17, 2019, order from the Eighteenth Judicial District Court, Gallatin County, denying his petition for judicial review of a final agency decision by the office of the Commissioner of Political Practices (COPP). The COPP's decision dismissed an ethics complaint that Monforton had lodged against Appellee Jonathan Motl (Motl) based on statements that Motl had made during a radio interview. We restate the dispositive issue on appeal as follows:

Was the Deputy COPP's conclusion of law correct that there was a reasonable interpretation for Motl's statements other than that they were made to solicit opposition to a candidate for public office?

¶2 We conclude that Motl's statements did not violate § 2-2-136(4), MCA (2015), of the Montana Code of Ethics. Accordingly, we affirm the District Court's order denying Monforton's petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 19, 2016, Representative Brad Tschida (Tschida), a member of the Montana House of Representatives from a Missoula legislative district, lodged an ethics complaint with the COPP against Governor Steve Bullock and Meg O'Leary, the former Director of the Montana Department of Commerce. On September 21, 2016, Tschida filed an amended ethics complaint against Bullock and O'Leary. In the time since Tschida's amended complaint was filed, Tschida has admitted that one of its claims—specifically, the complaint's allegation that Governor Bullock accepted improper benefits from the Democratic Governors Association—was "more speculative in nature" and "couldn't be 100 percent corroborated."¹

¶4 Motl held the position of COPP at the time Tschida's ethics complaint was lodged. In two letters dated September 19, 2016, and September 21, 2016, Motl confirmed receipt of Tschida's original and amended ethics complaints. In each letter, Motl expressly reminded Tschida of Montana's then-active confidentiality requirement for ethics complaints under § 2-2-136(4), MCA (2015), which prohibited the public disclosure of ethics complaints prior to a decision by the COPP to either dismiss the complaint or allow the complaint to proceed to a hearing. Section 2-2-136(4), MCA (2015), provided:

[A] complaint and records obtained or prepared by the commissioner in connection with an investigation or complaint are confidential documents and are not open for public inspection. The complainant and the person who is the subject of the complaint shall maintain the confidentiality of the complaint and any related documents released to the parties by the commissioner until the commissioner issues a decision.

¶5 Despite Motl's warnings that Tschida's complaint was subject to § 2-2-136(4), MCA (2015), on the evening of November 1, 2016—before Motl had determined whether to accept or dismiss Tschida's ethics complaint—Tschida e-mailed a copy of his ethics complaint to other legislators in the Montana House of Representatives. At the time Tschida disclosed the contents of his complaint, Bullock was running for re-election as governor while Tschida was running for re-election to Montana's House of Representatives. Bullock and Tschida were members of opposing political parties.

¶6 On November 3, 2016, Motl was interviewed by KGVO, a radio station in Missoula. Motl participated in the interview on public time while using public facilities and public equipment, including a state office and telephone. During the interview, Motl made the following comments:

Mr. Tschida, by releasing an ethics complaint violated a specific section of state law to which there is no exception.

...

Mr. Tschida, as a sitting legislator, chose to violate a specific section of state statute and he did it in the last days of a campaign, which I think magnifies the seriousness of what he did.

...

And Mr. Tschida, in complete violation of the specific directions in state law to which there—I just read it to your listeners—I don't think there can be any doubt about what that law says. Released the complaint, I would presume for political purposes in the last days of a political campaign, and he doesn't have any authority to do that. His legislative status—he's not in the session, he's not speaking on the floor, there's nothing—no bill that's pending, and he has no special status as a citizen that gives him a right to decide which laws he's going to follow and laws he doesn't. And, so I think it's a .... That's our stance—that it's just outrageous that he did what he did at the time that he did it.

Later in the interview, the following exchange also occurred between Motl and the KGVO interviewer:

Motl: [Tschida] has personal responsibility for his actions; and so he'll need to deal with the consequences of breaking state law.

Interviewer: And what are those consequences?

Motl: There's uh, the main consequence that befalls an official who, um violates a mandatory duty is official misconduct.

Interviewer: And that would be a charge in civil court?

Motl: No, it's criminal court.

Interviewer: It's a criminal court charge?

Motl: Yes.

Interviewer: And so will the—will your office be bringing a...

Motl: It is inappropriate for me to—to say what anything in particularly in the timing that we've got left here. And I—I simply won't do it. And I wouldn't expect anybody would consider bringing something for or against Mr. Tschida until—

Interviewer: Until after the eighth?

Motl: Yes.

The 2016 election was held on November 8, 2016—five days after Motl's radio interview and seven days after Tschida forwarded his complaint regarding Bullock to other House members. On Election Day, both Tschida and Bullock were re-elected to subsequent terms.

¶7 On November 21, 2016, Motl dismissed Tschida's ethics complaint against Governor Bullock and his former Director of Commerce. That same month, Tschida filed a federal lawsuit against Motl which alleged that Montana's confidentiality requirement for ethics complaints, contained in § 2-2-136(4), MCA (2015), violated the United States Constitution. See Tschida v. Mangan , 293 F.Supp.3d 1217 (D. Mont. 2017). Jeff Mangan, who replaced Motl as Montana's COPP in 2017, was also a defendant. In Tschida v. Motl , 924 F.3d 1297 (9th Cir. 2019), the Ninth Circuit held that § 2-2-136(4), MCA (2015), violated the First Amendment and was unconstitutional. However, that decision also granted Motl qualified immunity because it was reasonable for Motl to rely on the constitutionality of a duly enacted statute.

¶8 Two years later, on November 2, 2018, Monforton lodged an ethics complaint with the COPP against Motl. Motl was no longer serving as COPP at the time Monforton's complaint was lodged. The new COPP, Jeff Mangan, recused himself from participating in the matter and appointed Robert Stutz, an Assistant Attorney General for the Montana Department of Justice, to preside over the matter as Deputy COPP.

¶9 Monforton's complaint alleged that Motl's statements to KGVO about Tschida constituted improper election advocacy in violation of the Montana Code of Ethics, Rules of Conduct for Public Officers and Employees. Specifically, Monforton's complaint alleged Motl's statements violated § 2-2-121(3)(a), MCA —an ethics rule which prohibits public officers and employees from using "public time, facilities, [and] equipment" to "solicit support for or opposition to the ... election of a person to public office." Both parties agreed that Motl's statements were offered while using public time, facilities, and equipment. However, while Monforton's complaint alleged that Motl's statements to KGVO were made "in opposition to" Tschida's election and thereby constituted a violation of § 2-2-121(3)(a), MCA, Motl challenged this allegation and asserted that his statements were made for the purpose of "defending a statute on behalf of the people of Montana."

¶10 On February 1, 2019, the Deputy COPP dismissed Monforton's ethics complaint for failing to state a claim for a potential violation of Montana's Code of Ethics, citing § 2-2-136(1)(c), MCA (authorizing the COPP to dismiss ethics complaints that fail to state a claim). This dismissal relied on a multi-step statutory analysis which ultimately determined that Motl's statements to KGVO did not constitute statements made in "opposition to" Tschida's election under § 2-2-121(3)(a). In his analysis, the Deputy COPP noted that the Montana Code of Ethics does not define the terms "support" or "oppose" as they appear in § 2-2-121(3)(a). However, the Deputy COPP cited § 1-2-107, MCA (titled "Applicability of definitions"), in order to properly apply the relevant definition that appeared elsewhere in the Montana Code. See § 1-2-107, MCA ("Whenever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears."). The Deputy COPP's decision turned on the definition of "support or oppose" as it appears in Title 13—"Elections"—of the Montana Code Annotated, citing § 13-1-101(50)(b), MCA, which provides that:

"Support or oppose," including any variations of the term, means ... otherwise referring to or depicting one or more clearly identified candidates, political parties, or ballot issues in a manner that is susceptible of no reasonable interpretation other than as a call for the nomination, election, or defeat of the candidate in an election, the election or defeat of the political party, or the passage or defeat of the ballot issue or other

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