Tschida v. Mangan

293 F.Supp.3d 1217

Brad TSCHIDA, Plaintiff,

v.Jeff MANGAN, in his official capacity as the Commissioner of Political Practices, and Jonathan Motl, in his personal capacity, Defendants.

CV–16–102–H–BMM

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

Signed December 18, 2017

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

Curt Glen Drake, Patricia Hope Klanke, Drake Law Firm, J. Stuart Segrest, Dale M. Schowengerdt, Montana Department Of Justice, Helena, MT, for Defendants.

Amended ORDER

Brian Morris, United States District Court Judge

INTRODUCTION

The parties have filed cross-motions for summary judgment. (Docs. 66; 69.) The Court conducted a hearing on December 8, 2017. (Doc. 84.) Plaintiff Brad Tschida ("Tschida") alleges that the confidentiality requirement of Mont. Code Ann. § 2–2–136(4) violates the First Amendment. (Doc. 71 at 6.) Defendant Jeff Mangan currently serves as Montana's Commissioner on Political Practices. (Doc. 67 at 1.) Mangan's predecessor, Jonathan Motl, served as Commissioner from June 10, 2013 to May 14, 2017. (Doc. 65 at 1.) The Court will refer collectively to the two officials as "Commissioner" for purposes of brevity.

BACKGROUND

Tschida serves as an elected member of the Montana House of Representatives from Missoula (Doc. 15 at 5.) Tschida filed an ethics complaint with the Commissioner on September 19, 2016. (Doc. 15–9 at 1.) The Commissioner confirmed receipt of the first ethics complaint and informed Tschida of the confidentiality requirement of Mont. Code Ann. § 2–2–136(4) in a letter dated September 19, 2016. (Doc. 15–9 at 14.)

Tschida filed an amended ethics complaint on September 21, 2016. (Doc.15–9 at 2.) The Commissioner confirmed receipt of the amended ethics complaint in a letter to Tschida dated September 21, 2016. (Doc. 15–9 at 23.) The Commissioner's letter again stressed the confidentiality requirement. (Doc. 15–9 at 23.) The original and amended ethics complaints alleged violations of the Montana Code of Ethics by Governor Steve Bullock and Meg O'Leary, the Director of the Montana Department of Commerce. (Doc. 15–9 at 1.)

Despite these warnings, Tschida disclosed his amended ethics complaint on November 2, 2016, in an email sent to members of the Montana House of Representatives. (Doc. 15–4 at 1.) Tschida attached to his amended ethics complaint a cover letter to the House members that accused the Commissioner of purposely delaying a decision. (Doc. 15–4 at 1.) Tschida had filed his amended ethics complaint six weeks before his disclosure. (Doc. 15–4 at 2.) The general election took place November 8, 2016. (Doc. 65 at 2.)

The Commissioner dismissed Tschida's amended ethics complaint on November 21, 2016. (Doc. 65 at 4.) The Commissioner cited the following reasons to dismiss Tschida's amended ethics complaint: 1) it failed to state a violation; 2) it lacked sufficient allegations; and/or 3) it was frivolous. (Doc. 15–9 at 1.) The Commissioner also determined that the dismissal decision extinguished the confidentiality requirement of Mont. Code Ann. § 2–2–136(4). (Doc. 15–9 at 9.)

LEGAL STANDARD

A court should grant summary judgment where the movant demonstrates that no genuine dispute exists "as to any material fact" and the movant should be "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). This Court will grant summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A facial challenge to a statute requires the challenger to "establish that no set of circumstances exists under which the [law] would be valid." United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

DISCUSSION

Mont. Code Ann. § 2–2–136 details the procedure for enforcement of the Code of Ethics. The Code of Ethics applies to Montana legislators, officers and employees of state government, and certain officers and employees of local government. See also Mont. Code. Ann. § 2–2–101. A complainant may file a formal complaint alleging violation of the ethics code with the Commissioner. Mont. Code Ann. § 2–2–136(1). The Montana Legislature precluded from public inspection an ethics complaint and any documents and records obtained or prepared by the Commissioner in connection with an investigation or complaint in the law as enacted in 1995. Mont. Code Ann. § 2–2–136(4) (1995).

The Montana Legislature amended the statute to its current form in 2001. The legislature added the provision in 2001 that classifies ethics complaints as "confidential documents." Mont. Code Ann. § 2–2–136(4) (2001). In support of the amendment, Montana Senator Don Hargrove described ethics as "different than the rough and tumble finance laws." Executive Action on S.B. 205 Before the Sen. Comm. on State Admin., 57th Leg., Reg. Sess. 5 (Mont. 2001).

As amended, the confidentiality provision informs that a complaint, and records obtained or prepared by the Commissioner in connection with an investigation or complaint, constitute confidential documents typically not open for public inspection. Mont. Code Ann. § 2–2–136(4). More specifically, the statute provides that "[t]he 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." Id. The subject of the complaint can waive, in writing, the right of confidentiality. Id. The Commissioner must open the complaint and any related documents for public inspection upon the filing of a waiver. Id.

The Commissioner has interpreted a "decision" to mean the initial determination as to whether a complaint should be dismissed because it is frivolous, fails to state a potential violation, or lacks sufficient allegations. (Doc. 12 at 9); Mont. Code Ann. § 2–2–136(1)(b). The parties have likened this initial "decision" to a probable cause determination. A complaint that survives this initial screening for probable cause proceeds to an informal hearing stage. Mont. Code Ann. § 2–2–136(1)(c). The confidentiality provision no longer applies at the hearing stage. (Doc. 12 at 9.)

I. The Confidentiality Provision as Applied to Elected Officials

Strict scrutiny applies to laws that restrict political speech. Citizens United v. Federal Election Comm'n , 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Strict scrutiny requires the state to prove that the restriction on speech satisfies two criteria. The restriction first must promote a compelling interest. Id. And second, any restriction on protected speech must be narrowly tailored to achieve the state's compelling interest. Id. Narrow tailoring requires that the legislature must use a narrower alternative "if a less restrictive alternative would serve the Government's purpose." United States v. Playboy Entertainment Group, Inc. , 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The burden falls on the state to "prove that the proposed alternatives will not be as effective as the challenged statute." Ashcroft v. ACLU , 542 U.S. 656, 665, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).

A. The Commissioner's Content–Based Analysis

A statute that regulates speech qualifies as "content-neutral" only if the state "can justify it without reference to the content that it restricts or to the direct effect of the speech on listeners." Lind v. Grimmer , 30 F.3d 1115, 1117 (9th Cir. 1994) (citing Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). The Commissioner has justified the confidentiality provision of Mont. Code Ann. § 2–2–136(4) based on the "speculative, embarrassing, and harassing" content of many ethics complaints. (Doc. 28 at 5.) This determination, on its face, seems to involve some content-based analysis of an ethics complaint. In other words, the sometimes "speculative, embarrassing, and harassing" content of the ethics complaint triggers the confidentiality provision. As noted by the Ninth Circuit in Lind , these concerns "stem from the direct communicative impact of the speech." Lind , 30 F.3d at 1118.

The Commissioner argues that the confidentiality provision requires no content-based analysis. (Doc. 78 at 13–15.) The Commissioner contends that the statute instead requires confidentiality "based on the personal, not political, nature of ethics complaints in general." (Doc. 78 at 14.) The Third Circuit in Stilp v. Contino , 613 F.3d 405 (3rd Cir. 2010), made no distinction between the alleged "personal" nature of an ethics complaint and the "political" nature of an ethics complaint. Pennsylvania's ethics statute contained a confidentiality provision that prohibited disclosure of the filing of the complaint. Stilp , 613 F.3d at 406. The Court framed the issue as whether Pennsylvania could subject the complainant "to civil or criminal punishment for publicly disclosing his own complaint and the fact that he has filed it—or intends to file it—with the State Ethics Commission." Id.

Stilp considered the possibility that, without a confidentiality requirement, "a partisan individual could file and publicize a frivolous ethics complaint on the eve of an election for the purpose of undermining a political opponent's campaign." Id. at 414. No meaningful distinction exists "between publicizing allegations of unethical conduct on the eve of an election and doing so while also disclosing that an Ethics Act complaint was filed with the Commission." Id. The publication of the allegation itself, in either form, conceivably might affect the election. Id. A restriction on speech failed to provide a remedy.

Montana's confidentiality provision restricts speech regarding alleged wrongdoing by public officials. Regardless of the validity of an ethics complaint, the complainant typically alleges some type of wrongdoing. This alleged wrongdoing can include...