Tschida v. Motl
ORDER denying 30 Motion for Summary Judgment; and denying 18 Motion for Partial Summary Judgment. The Court will schedule a pretrial conference to set a scheduling order. Please review order for complete rulings. Signed by Judge Brian Morris on 4/18/2017. (DED)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
Plaintiff Tschida moves for partial summary judgment seeking a ruling from
the Court that the confidentiality requirement of Mont. Code Ann. § 2-2-136(4)
violates the First Amendment on its face. (Docs. 18; 19 at 5.) Defendant Motl
moves for partial summary judgment that the rule is facially constitutional. (Doc.
Tschida serves as an elected member of the Montana House of
Representatives from Missoula. (Doc. 15 at 5.) In September 2016, Tschida filed a
complaint with Commissioner of Political Practices Jonathan Motl alleging ethics
violations against Montana Governor Steve Bullock and Commerce Director Meg
O’Leary. Id. at 7. Tschida alleges that Motl “ordered him not to disclose the
existence of the complaint” under the confidentiality provision of Mont. Code Ann.
§ 2-2-136(4). (Doc. 15 at 7.)
The confidentiality language 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 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 a
complaint may waive, in writing, however, 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.
Motl did not act on Tschida’s complaint in September or October. (Doc. 15
at 3.) Tschida disclosed his ethics complaint to fellow legislators on November 2,
2016, in response to a letter seeking support for an investigation into alleged
misuse of state resources by the Bullock Administration. Id. at 8-9. On November
3, 2016, Motl commented during a radio interview that Tschida had violated the
statute and could be subject to civil and criminal penalties. Id. at 9-10.
The parties’ cross motions for summary judgment apply to Tschida’s first
claim in his Amended Complaint alleging that the confidentiality provision in
Mont. Code Ann. § 2-2-136(4) violates the free speech clause of the First
Amendment to the United States Constitution. (Doc. 15 at 12-13.) He seeks a
ruling on summary judgment that the statute violates the First Amendment on its
face. Tschida asserts an as-applied challenge to the statute which is not the subject
of this motion. He also seeks to enjoin Motl from enforcing the confidentiality
provision, and an award of damages and costs of litigation. Id. at 18-19.
A party may move for summary judgment on all claims or defenses, or a part
of a claim or defense. Fed. R. Civ. P. 56(a). 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.”
Id. 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 (1986).
Strict scrutiny applies to laws that prohibit political speech. Jacobs v. Clark
County School Dist., 526 F.3d 419, 433 (9th Cir. 2008). Strict scrutiny “requires
the Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.” Citizens United v. Federal Election
Comm’n, 558 U.S. 310, 312. Narrow tailoring requires that “if a less restrictive
alternative would serve the Government’s purpose, the legislature must use that
alternative.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803,
813 (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,
A facial challenge to a statute, by contrast, represents the most difficult
challenge to mount successfully. The challenger “must establish that no set of
circumstances exists under which the Act would be valid.” United States v.
Salerno, 481 U.S. 739, 745 (1987). This order addresses only the facial challenge
to the confidentiality provision.
Material issues of fact exist in this case that preclude judgment as a matter of
law at this time. Fed. R. Civ. P. 56(a). The parties dispute a number of facts. (Docs.
33; 38.) Tschida disputes two key statements from Motl’s statement of undisputed
facts. (Doc. 33.) Tschida requests time for discovery to resolve the dispute over
these two statements. (Doc. 38 at 3-4.) The Court determines that resolution of
these facts likely would be relevant and material to the resolution of the facial
constitutionality of Mont. Code Ann. § 2-2-136(4).
Tschida first disputes the following statement in Motl’s statement of
undisputed facts: “Montana’s Code of Ethics applies to employees as well as
elected officials. Specifically, as of Jan [sic] 13, 2017, there were 14,283 nonelected employees working for Montana and only 231 elected officials.” (Doc. 38
at 3, citing Doc. 29.) Tschida fails to specify whether he disputes Mot’s claims as
to the number of people to which the Code of Ethics applies, or whether he
disputes Motl’s claim that the Code of Ethics applies to non-elected state
employees. The parties can clarify the scope of the dispute through the discovery
Tschida next disputes Motl’s assertion that “[most] ethics complaints are
dismissed within a few days. The few times the initial determination took longer is
a result of the number of respondents or the need for additional information.” (Doc.
38 at 4, citing Doc. 28, ¶¶ 6-7.) Tschida once again fails to specify whether he
takes issue with Motl’s claim about the fate of most complaints, or whether he
disputes Motl’s explanation for the longer processing times. The parties may
narrow these disputes through the discovery process.
CONCLUSION AND ORDER
Genuine issues of material fact remain. Accordingly, IT IS ORDERED that
Plaintiff’s Motion for Partial Summary Judgment (Doc. 18) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Partial Summary
Judgment (Doc. 30) is DENIED.
The Court will schedule a pretrial conference to set a scheduling order in this
case. If the parties believe that the Court can, and should, rule on the filings to
date, rather than undertaking discovery, then the parties should file an amended
joint statement of undisputed facts.
DATED this 18th day of April, 2017.
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