Tschida v. Motl

Filing 102

ORDER denying 94 Motion to Modify Injunction Pending Appeal. Signed by Judge Brian Morris on 8/1/2018. (HEG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

BRAD TSCHIDA,

CV-16-102-H-BMM

Plaintiff,

vs.
ORDER
JEFF MANGAN, in his official
capacity as the Commissioner of
Political Practices, and JONATHAN
MOTL, in his personal capacity,
Defendants.
INTRODUCTION
Plaintiff Brad Tschida (“Tschida”) moves the Court to modify the injunction
it issued on December 18, 2017. (Doc. 94.) Tschida requests that the Court modify
its injunction to prevent the State from enforcing the confidentiality requirement
with regard to ethics complaints filed against state officials appointed by the
Governor. (Doc. 94.) The Defendants oppose the motion. (Doc. 94.) 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

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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
The Court will recite the history of this case only as relevant to explain its
reasoning.
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.) Tschida filed an
amended ethics complaint on September 21, 2016. (Doc.15-9 at 2.) 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.)
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.)

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The parties filed cross-motions for summary judgment. (Docs. 66 & 69.)
The Court conducted a hearing on December 8, 2017. (Doc. 84.) Tschida alleged
that the confidentiality requirement of Montana Code Annotated § 2-2-136(4),
violated the First Amendment. (Doc. 71 at 6.) The Court’s December 18, 2017
order found the confidentiality provision of Montana Code Annotated § 2-2136(4), to violate the First Amendment as applied to elected officials, including the
Governor. (Doc. 86.) The Court determined the confidentiality provision survived
intermediate scrutiny, however, as applied to complaints filed against state
employees. (Doc. 86.) The Court permanently enjoined enforcement of the
confidentiality provision contained within Montana Code Annotated § 2-2-136(4),
as applied to ethics complaints filed against the Governor and other elected
officials in the State of Montana. (Doc. 86.)
Tschida appealed the Court’s decision to the United States Court of Appeals
for the Ninth Circuit on February 14, 2018. (Doc. 90.) Pursuant to Fed. R. Civ. P.
62(c), Tschida requests that the Court modify its injunction to prevent the State
from enforcing the confidentiality provision with regard to ethics complaints filed
against state officials appointed by Governor Bullock. (Doc. 95.) Tschida cites the
unlikelihood of a final ruling from the Ninth Circuit this year as the reason for a
modification to the injunction. (Doc. 94.) Tschida intends to file additional ethics
complaints against other state officials appointed by Governor Bullock. (Docs. 94
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& 95-1.) Tschida intends to disclose publicly the complaints upon filing them.
(Docs. 94 & 95-1.) Tschida contends he will not publicly disclose the complaints
so long as there exists a credible threat of civil or criminal prosecution by the State.
(Doc. 95-1.)
LEGAL STANDARD
Federal Rule of Civil Procedure 62(c) provides that a court may “suspend,
modify, restore, or grant an injunction” when “an appeal is pending from an
interlocutory or final judgment” which “denies an injunction.” A court must apply
the same standard to a request for an injunction pending appeal that it applies when
considering a motion for a preliminary injunction. Alliance for the Wild Rockies v.
Kruger, 35 F. Supp. 3d 1259, 1263 (D. Mont. 2014) (citation omitted).
An injunction represents an extraordinary remedy that a court should never
award as a matter of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24
(2008). A plaintiff seeking injunctive relief must show: (1) that he is likely to
succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence
of injunctive relief; (3) that the balance of equities tips in his favor; and (4) that an
injunction is in the public interest. Winter, 555 U.S. at 20 (citation omitted). The
Court “need not consider” the latter three elements where the moving party has
filed to demonstrate likelihood of success on the merits. Garcia v. Google, Inc.,
786 F.3d 733, 740 (9th Cir. 2015).
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Where a party fails to demonstrate likelihood of success on the merits, a
preliminary injunction may yet be appropriate where: (1) a plaintiff raises “serious
questions going to the merits;” (2) “the balance of hardships tips sharply in the
plaintiff’s favor;” and (3) plaintiffs “satisfy the other Winter factors.” Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (citations
omitted).
DISCUSSION
Section 2-2-136, details the procedure for enforcement of the Code of
Ethics. Mont. Code Ann. § 2-2-136. 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 has
classified ethics complaints as “confidential documents.” Mont. Code Ann. § 2-2136(4) (2001).
The confidentiality provision provides 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
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maintain the confidentiality of the complaint and any related documents released to
the parties by the commissioner until the commissioner issues a decision.” Id.
Tschida contends that the Court erred in applying intermediate scrutiny to
the confidentiality provision for complaints involving non-elected officials. (Doc.
95 at 13.) Tschida argues that “content-neutrality is an all-or-nothing proposition –
it either exists or it doesn’t.” (Doc. 95 at 13.) Tschida asserts that the
confidentiality provision is “therefore subject to strict scrutiny regardless of who is
named as a respondent in an ethics complaint.” (Doc. 95 at 13.) The Commissioner
argues that Tschida’s failure to demonstrate a likelihood of success on the merits
defeats its motion for a modification to the injunction pending appeal. (Doc. 100 at
2.)
I.

Tschida’s Motion for Injunction Pending Appeal Constitutes a Motion
for Reconsideration
Tschida concedes that the reasoning upon which he relies in support of this

motion largely mirrors the reasoning contained in his summary judgment papers.
(Doc. 101 at 1-2.) Tschida repeats his arguments “because they are correct, while
the State’s reasoning (as well as the reasoning in the Court’s prior order upon
which the State relies) is hopelessly flawed.” (Doc. 101 at 2.) Tschida fails to set
forth any facts indicating a change in circumstances since the Amended Order

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issued on December 18, 2017. Tschida fails to set forth any new law indicating an
error by the Court.
Tschida’s reliance upon reasoning that already has failed to prevail means
that Tschida asks this Court, in effect, to reconsider its ruling to omit non-elected
state employees from the injunction. Tschida fails to offer a new argument,
however, persuading the Court to apply strict scrutiny to the confidentiality
provision when it implicates non-elected employees. The Court declines to
reconsider its ruling given Tschida’s pending appeal and the lack of a change in
circumstances. Tschida has failed to demonstrate likelihood of success on the
merits, or to raise serious questions going to the merits.
II.

The Balance of Equities Does Not Favor an Injunction Pending Appeal
Tschida’s failure to show likelihood of success on the merits relieves the

Court of the need to proceed further with the Winter analysis. Garcia, 786 F.3d at
740. The Court will discuss briefly Tschida’s balance of equities argument for the
sake of completeness. Tschida’s motion for modification to the injunction pending
appeal would fail even if Tschida had established a likelihood of success on the
merits.
A.

Irreparable Harm

Issuing a preliminary injunction based only on a possibility of irreparable
harm conflicts with the Supreme Court’s characterization of injunctive relief as an
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extraordinary remedy. Winter, 555 U.S. at 22 (citation omitted). To satisfy the
“irreparable harm” prong of Winter, Tschida must show that irreparable harm is
not just possible, but likely to occur. Cottrell, 632 F.3d at 1131 (citing Winter, 55
U.S. at 22).
Tschida asserts that the confidentiality provision violates his rights under the
First Amendment. (Doc. 95 at 21.) Tschida further asserts that “the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” (Doc. 95 at 21.) (quoting Elrod v. Burns, 427 U.S.
347, 373-74 (1976)). Tschida asserts that “such harm is particularly irreparable
where, as here, a plaintiff seeks to engage in political speech, as timing is of the
essence in politics and delay of even a day or two may be intolerable.” (Doc. 95 at
21) (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1128 (9th Cir.
2011)). Finally, Tschida asserts that this deprivation of his rights will continue
until this Court grants relief – relief that cannot be achieved with monetary
damages. (Doc. 95 at 21.)
In response, the Commissioner argues that Tschida’s own actions, and
inactions, demonstrate that no need exists for modification to the injunction. (Doc.
100 at 6.) The Commissioner asserts that Tschida “could have filed his ethics
complaint months ago, received an initial decision from the Commissioner, and
been free to publicize the complaint.” (Doc. 100 at 6.) The Commissioner
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highlights Tschida’s statement that one of the ethics complaints that he intends to
file is based upon information that he learned from discovery conducted in this
matter. (Doc. 100 at 6.) The Commissioner asserts that discovery ended on August
25, 2017, in support of this argument. (Doc. 100 at 6.)
Further, the Commissioner asserts that Montana Code Annotated § 2-2136(5), allows for complainants like Tschida to inquire about the “status of the
case” if the complainant is concerned about the review time. (Doc. 100 at 7.) The
Commissioner concedes that if the answer to this inquiry were insufficient, then a
complainant may have a new issue to raise with this Court. (Doc. 100 at 7.)
The Court agrees with the Commissioner that, at this time, Tschida’s
concerns are based on unfounded speculation insufficient to show harm. Tschida
has had ample time to file complaints using information obtained during discovery.
Further, as addressed in this Court’s original order, nothing prohibits Tschida from
speaking separately about the allegations of misconduct contained in his
complaints against unelected employees. (Doc. 86 at 22.) The confidentiality
provision merely prohibits Tschida from discussing his decision to memorialize
allegations in an ethics complaint to the Commissioner. (Doc. 86 at 22-23.)
Tschida has failed to demonstrate a likelihood of irreparable harm to justify an
injunction pending appeal.
B.

Balance of Equities and Public Interest
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Tschida argues that the balance of equities tips sharply in his favor, and the
public interest favors modifying the injunction. (Doc. 95 at 21-22.) Tschida asserts
that “the fact that a case raises serious First Amendment questions compels a
finding that the balance of hardships tips sharply in the plaintiffs’ favor.” (Doc. 95
at 21-22.) (quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973
(9th Cir. 2002)). Tschida contends “First Amendment rights are ones that, if
protected, will unquestionably advance the public interest.” (Doc. 95 at 22.) (citing
Thalheimer, 645 F.3d at 1129).
As discussed above, Tschida has failed to demonstrate likelihood of success
on the merits, raise serious questions going to the merits, or demonstrate a
likelihood of irreparable harm. In order to secure an injunction, a plaintiff must
satisfy all four Winter prongs. Cottrell, 632 F.3d at 1135. Thus, even if Tschida
could demonstrate that the balance of equities and public interest “tips sharply” in
his favor, that showing alone would prove insufficient to secure an injunction
pending appeal.
Tschida has not demonstrated, however, that the balance of equities and
public interest “tip sharply” in his favor. Tschida possesses ample avenues to get
out his message and remains free to publicize the facts or allegations underlying
his complaints against non-elected employees. (Doc. 86 at 22.) The “extraordinary
remedy” of a modification to the injunction is not warranted.
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CONCLUSION AND ORDER
Tschida’s reliance on his previous arguments fails to demonstrate a
likelihood of success on the merits, or raise serious questions going to the merits,
warranting a modification to the injunction pending appeal. Even if Tschida’s
claim sufficiently met the first prong of the Winter test, Tschida has failed to
demonstrate a likelihood of irreparable harm to himself, or that the balance of
equities and the public interest favor a modification to the injunction pending
appeal.
Accordingly, for the reasons set forth above, Tschida’s Motion to Modify
Injunction Pending Appeal (Doc. 94) is DENIED.
DATED this 1st day of August, 2018.

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