Tschida v. Motl

Filing 45

ORDER granting 26 Motion to Dismiss. Plaintiffs second, third, and fourth claims are dismissed with prejudice. Signed by Judge Brian Morris on 4/18/2017. (DED)

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

BRAD TSCHIDA,

CV-16-102-H-BMM

Plaintiff,

vs.
ORDER
JONATHAN MOTL,
Defendant.

Defendant Motl moves this Court to dismiss Plaintiff Tschida’s second,
third, and fourth claims, and all claims for damages. (Doc. 26.) Motl argues that
federal common law entitles him to qualified immunity for Tschida’s second
claim, and that Montana law provides qualified immunity for Tschida’s third and
fourth claims. Motl argues that damages are not available against him in his
official capacity under 42 U.S.C. § 1983.
I.

BACKGROUND

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 Montana Commissioner of Political Practices Jonathan Motl
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alleging ethics violations against Montana Governor Steve Bullock and Montana
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). Id.
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. He emailed a
copy of his complaint to a group of legislators. Id. at 9.

2

The next day, November 3, 2016, Motl fielded questions about Tschida’s
disclosure during a radio interview. Id. at 9-10. Motl expressed his concern that
“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.” (Doc. 15-5 at 1.)
The interviewer asked Motl whether the disclosure by Tschida would affect
the processing of the complaint, to which he responded, “[i]t doesn’t affect the
complaint that is filed. [Tschida] has personal responsibility for his actions, and so
he’ll need to deal with the consequences of breaking state law.” Id. at 2. The
interviewer then asked, “[a]nd what are those consequences?” Id. Motl replied,
“[t]here’s, uh, the main consequence that befalls an official who, um, violates a
mandatory duty is official misconduct,” referring to Mont. Code Ann. § 45-7-401.
Id. The interviewer asked whether that would be a civil claim, to which
Commissioner Motl responded, “[n]o, it’s criminal court.” Id.
Tschida refrained from speaking further about Governor Bullock or the
ethics complaint that he had filed during the remaining five days before Election
Day. (Doc. 15 at 12.) The day before Election Day, Motl replied to all of the
recipients of an email from Tschida’s attorney, including around 90 legislators,
reminding them that “ethics complaints are confidential by law.” Id. at 11; Doc. 27
at 11; see also Doc. 31 at 15.
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The day after Election Day, November 9, 2016, Motl executed a declaration
with this Court in which he attested that he had not filed, and did not intend to file,
a complaint with a county attorney regarding Tschida’s disclosure of the
complaint. (Doc. 27 at 9.) He further attested that he would neither act on, nor
initiate, an ethics complaint filed against Tschida during the pendency of this
action. Id.
Motl dismissed Tschida’s ethics complaint against Governor Bullock on or
about November 21, 2016. (Doc. 15 at 12.) Motl evaluated the complaint as
“frivolous.” (Doc. 15-9 at 6.) The dismissal of Tschida’s complaint lifted the
confidentiality requirement. Id. at 8.
II.

CLAIMS

Tschida asserts four claims for relief. Tschida first alleges 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 1213.) This claim forms the focus of the parties’ cross motions for summary
judgment. (Docs. 18, 30.) The Court addresses the cross motions for summary
judgment in a separate order. Tschida requests an award of nominal damages for
his First Amendment claim. (Doc. 15 at 18.) Defendant’s motion to dismiss at
issue here does not implicate Tschida’s First Amendment claim.

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Second and third, Tschida alleges that Motl retaliated against him for
exercising his right to free speech under both the First Amendment of the United
States Constitution and Article II, §7 of the Montana Constitution. Id. at 13-16.
Finally, Tschida alleges that the confidentiality provision in Mont. Code Ann. § 22-136(4), violates the speech and debate clause of Article V, § 8 of the Montana
Constitution, as applied to speech by legislators in a legislative capacity. Id. at 1718. On these claims, Tschida requests an award of compensatory and punitive
damages as determined by a jury, and costs of litigation, including reasonable
attorneys’ fees and expenses. Id. at 19.
III.

STANDARDS FOR DISMISSAL

A court must dismiss a complaint if it fails to “state a claim upon which
relief can be granted.” Fed. R. Civ. P 12(b)(6). The Court must consider all
allegations of material fact as true and construed in a light most favorable to the
plaintiff. Cahill v. Liberty Mut. Ins. Co, 80 F.3d 336, 338 (9th Cir. 1996).
The doctrine of qualified immunity applies to “government officials
performing discretionary functions.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The doctrine generally shields government officials from liability for civil
damages “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Id.

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An official who relies on a statute that a reasonable official could believe to
be constitutional remains immune from liability, even if the statute is later
determined to be unconstitutional. See Grossman v. City of Portland, 33 F.3d 1200,
1209 (9th Cir. 1994). Similarly, Montana statutory law shields from civil liability
an officer, agent, or employee of a governmental entity who acts in good faith in
enforcing a law and without malice or corruption “and that law is subsequently
declared invalid as in conflict with the constitution of Montana or the constitution
of the United States.” Mont. Code Ann. § 2-9-103(1).
When a defendant asserts qualified immunity in a Rule 12(b)(6) motion to
dismiss, “dismissal is not appropriate unless we can determine, based on the
complaint itself, that qualified immunity applies.” O’Brien v. Welty, 818 F.3d 920,
936 (9th Cir. 2016) (internal quotation omitted). This determination involves two
inquires: “‘(1) whether, taken in the light most favorable to the party asserting
injury, the facts alleged show the officer’s conduct violated a constitutional right;
and (2) if so, whether the right was clearly established in light of the specific
context of the case.’” Krainski v. Nevada ex rel. Bd of Regents of Nev. Sys. of
Higher Educ., 616 F.3d 963, 968 (9th Cir. 2010) (quoting al-Kidd v. Ashcroft, 580
F.3d 949, 964 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
The Court may begin the qualified immunity analysis by considering first
“whether there is a violation of clearly established law without determining
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whether a constitutional violation occurred.” Krainski, 616 F.3d at 969 (citing
Pearson v. Callahan, 555 U.S. 223, 241-242 (2009)). University police arrested
Krainski based on statements from university staff and a student that Krainski had
attacked another student with a pair of scissors. Krainski, 616 F.3d at 966-967. The
arrest prompted university officials to place a disciplinary notation on Krainski’s
transcript. Id.
Krainski sued the university and various officials based, in part, on her claim
that the disciplinary notation violated her substantive due process rights. Id. at 967.
The Ninth Circuit addressed only the second prong of the qualified immunity
analysis of whether the placement of the disciplinary notation on Krainski’s
transcript by university officials clearly gave rise to a substantive due process
violation in light of the specific context of the case. The Ninth Circuit rejected the
idea and agreed with the district court that the university officials enjoyed qualified
immunity. Id. at 970.
The Supreme Court in Pearson previously had deviated from the two-step
sequence of Saucier. The Court determined that courts “should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236. The Court reasoned that strictly
following Saucier’s two-step analysis “departs from the general rule of
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constitutional avoidance.” Id. at 241. To require courts to address the violation of a
constitutional right would run counter to the “older, wiser judicial counsel ‘not to
pass on questions of constitutionality … unless such adjudication is unavoidable.’”
Id. quoting Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J., concurring)
(quoting Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)).
This approach applies here.
The Court will analyze whether Tschida seeks to vindicate a clearly
established right. A right is clearly established when its “contours [are] sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The Court first must
“define the contours of the right allegedly violated in a way that expresses what is
really being litigated,” before determining whether a constitutional right was
clearly established. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1158 (9th Cir. 2000). The
Court should define the right in a way that is neither “too general” nor “too
particularized.” Id.
The Court does not require a “case directly on point” to determine whether a
right is clearly established, rather “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011). The Court attached qualified immunity to a defendant where the
plaintiff asserted that a reasonable arrest pursuant to a material-witness warrant
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was unconstitutional. Id. This doctrine “gives government officials breathing room
to make reasonable but mistaken judgments,” and “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Id. at 743 (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986) (affirming qualified immunity for state trooper
who applied for arrest warrants).
IV.

DISCUSSION

The parties do not dispute that Motl performed discretionary functions of his
office as Commissioner of Political Practices at the time that he made his
comments in the radio interview. See Harlow, 457 U.S. at 818. The Court first
examines how to define properly the allegedly violated right at issue here. LSO,
205 F.3d at 1158. The Court then examines whether that right was clearly
established. See O’Brien, 818 F.3d at 936; Pearson, 555 U.S. at 241-242.
A. What right of Tschida’s did Motl allegedly violate?
Not surprisingly, Motl frames Tschida’s allegedly violated right narrowly,
while Tschida frames his right broadly. Motl frames the issue as “the right of a
complainant to distribute an ethics complaint prior to a probable cause
determination was not ‘clearly established.’” (Doc. 27 at 16.) Tschida contends
that the “appropriate question is whether a citizen has a First Amendment right to
publish criticism of government officials without being threatened by a prosecutor
with criminal sanctions.” (Doc. 36 at 16.)
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Qualified immunity is not meant to be analyzed in terms of a “‘general
constitutional guarantee,’” but rather the application of general constitutional
principles “‘in a particular context.’” LSO, 205 F.3d at 1158 (quoting Todd v.
United States, 849 F.2d 365, 370 (9th Cir. 1988)). The Court must define the
allegedly violated right “‘at the appropriate level of specificity before a court can
determine if it was clearly established.’” Cousins v. Lockyer, 568 F.3d 1063, 1070
(9th Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).
On the other hand, casting an allegedly violated right too particularly,
“‘would be to allow [the Officials], and future defendants, to define away all
potential claims.’” LSO, 205 F.3d at 1158 (quoting Kelly v. Borg, 60 F.3d 664, 667
(9th Cir. 1995)). The appropriate level of specificity “define[s] the contours of the
right allegedly violated in a way that expresses what is really being litigated.” LSO,
205 F.3d at 1158.
In LSO, Lifestyles Organization, Limited (“LSO”), an organization that
hosts an annual erotic art exhibition, alleged that California Department of
Alcoholic Beverage Control officials discriminated against it. LSO, 205 F.3d at
1150. LSO alleged that the department threatened the host convention center with
the loss of its liquor license if it allowed LSO to display its art on its premises. Id.
LSO broadly cast the allegedly violated right at issue as “the right to be free from
content-based discrimination.” Id. at 1158. The Ninth Circuit reframed the issue
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more specifically to whether “it was clear that LSO had the right to exhibit nonobscene art on the premises of an [Alcoholic Beverage Control] licensee free of
interference from state officials, even though some of the art fell within the
proscriptions of a state liquor regulation governing expressive content at licensed
establishments.” Id.
The Court determined that the department officials were not entitled to
qualified immunity because “no reasonable official could have believed that [the
state liquor regulation] could constitutionally be employed to impede LSO’s right
to display non-obscene art on the premises of an ABC licensee.” Id. at 1160.
The plaintiff in Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993),
an HIV-positive inmate who was segregated from the general prison population,
argued generally that “prison inmates have First Amendment rights, including
freedom of association.” The Ninth Circuit determined instead that the “relevant,
properly particularized question” was whether “it was clearly established that
inmates are entitled to be free from prison regulations that restrict their association
with members of the general prison population.” Camarillo, 998 F.2d at 640. The
Court determined that the prison officials had not violated a clearly established
constitutional right. Id. The Court held that the district court should have granted
summary judgment for the defendants based on qualified immunity. Id.

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Prison guards in Kelley v. Borg, 60 F.3d 664, 665-66 (9th Cir. 1995),
allegedly failed to provide care to an inmate after he reported noxious fumes in his
cell. The fumes later rendered the inmate unconscious. Kelley, 60 F.3d at 666. The
defendants narrowly posited the right at issue: “[D]id plaintiff, after complaining
about foul smells, have a clearly established right, then or now, for defendant
correctional officers to immediately remove him from his cell in the Security
Housing Unit during a lock down, when they first were required to at least inform
their superior officer that they needed to remove an inmate, be it any inmate, from
his cell?” Id. at 667.
The Ninth Circuit recognized that framing the issue with reference to such
specifically detailed facts would permit defendants “to define away all potential
claims.” Id. The Court determined that the magistrate judge correctly had defined
the prisoner’s right, under the Eighth Amendment, to have prison officials not be
“deliberately indifferent to serious medical needs.” Id. at 666. The Court also
affirmed the magistrate judge’s ruling that the right was clearly established, and,
therefore, qualified immunity was not available to the officials. Id.
The Ninth Circuit rejected formulations in each case, LSO, Camarillo, and
Kelley, that failed to “express[] what is really being litigated.” LSO, 205 F.3d at
1158. Courts have defined the right at issue more appropriately in two similar
cases that provide helpful insight to this analysis. See Landmark Communications,
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Inc. v. Virginia, 435 U.S. 829 (1978); Stilp v. Contino, 613 F.3d 405 (3d Cir.
2010).
The Supreme Court framed the question in Landmark as “whether the First
Amendment permits the criminal punishment of third persons who are strangers to
the inquiry, including the news media, for divulging or publishing truthful
information regarding confidential proceedings of the Judicial Inquiry and Review
Commission.” Landmark, 435 U.S. at 837. The Court recognized the chilling effect
of potential criminal prosecutions against third-parties under these circumstances.
The Supreme Court set forth in an appendix that 49 jurisdictions had established
some mechanism to inquire into judicial misconduct. Id. at 846 (Appendix). With
the sole exception of Puerto Rico, all of the other jurisdictions imposed some type
of confidentiality requirement. Id. The concept of confidentiality of these
complaints warranted little discussion by the Court. In fact, the Court noted “that
more than 40 states having similar commissions have not found it necessary to
enforce confidentiality by use of criminal sanctions against nonparticipants.” Id. at
841. This threat of criminal sanctions against third-parties for violating
confidentiality prompted the Supreme Court to determine, however, that the statute
at issue violated the First Amendment. Id. at 845.
The Third Circuit defined the issue in Stilp as “whether, under the First
Amendment, the state may subject Stilp to civil sanction or criminal punishment
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for publicly disclosing his own complaint and the fact that he has filed it—or
intends to file it—with the State Ethics Commission.” Stilp, 613 F.3d at 406. Stilp
fancied himself as a government watchdog who took great pride in “publicly
protesting actions of public officials with Pennsylvania state government.” Id. Stilp
sought to publicize the fact that he would be filing a complaint with the state ethics
commission. Id. The court ultimately determined that the confidentiality statute at
issue violated the First Amendment. Id. at 415.
These cases demonstrate that Tschida frames the issue too broadly. The
parties do not dispute whether a First Amendment right to criticize the government
exists. It does. Mont. Code Ann. § 2-2-136(4), does not prohibit speech critical of
government officials. The statute does not bar complainants from publicly
expressing the substance of their allegations. The matter at issue involves whether
Tschida possessed a clearly established right to speak publicly about the fact that
he had filed an ethics complaint in light of the confidentiality provision in Mont.
Code Ann. § 2-2-136(4). This provision prohibits public disclosure before a
probable cause determination. Id. This framing of the issue gets to the heart of the
matter being litigated. LSO, 205 F.3d at 1158.

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B. Was Tschida’s right to speak publicly about the fact that he had filed an
ethics complaint clearly established in light of a statute that prohibits
disclosure?
Motl asserts that Tschida possessed no clearly established right to disclose
the filing of his ethics complaint before a probable cause determination. (Doc. 27
at 17.) Motl argues that he was “entitled to rely on duly-enacted statutes.” Id. He
asserts that he reasonably believed the constitutionality of Mont. Code Ann. § 2-2136. Id. The Montana Legislature originally passed the statute in 1995. The
legislature amended Section (4) in 1997 and 2001. Section (4)’s constitutionality
has not been challenged before this case. The parties aim to determine the
constitutionality of the statute in their cross motions for summary judgment.
No Supreme Court precedent exists on this exact issue. Landmark’s focus on
criminal punishment of third parties who divulge information from confidential
judicial conduct proceedings differs from Montana’s confidentiality provision that
applies directly to the person who filed the complaint. Landmark, 435 U.S. at 837.
Ninth Circuit precedent, Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994), likewise
differs. There the statute at issue related to campaign finance complaints and
required confidentiality throughout the entire process—permanently if the
commission found no probable cause. Lind, 30 F.3d at 1117. Montana’s ethics
complaint statute requires confidentiality only until a probable cause determination
can be made. Mont. Code Ann. § 2-2-136(4).

15

Other jurisdictions have reached differing outcomes on confidentiality
provisions in ethics and judicial conduct statutes. For example, the Third Circuit in
Stilp upheld an injunction that foreclosed future enforcement of a statute that
allowed for civil and criminal punishment for violating confidentiality
requirements of an ethics investigation on basis that it violated the First
Amendment. Stilp, 613 F.3d at 415. The confidentiality provision subjected a
violator to “civil sanction or criminal punishment” for publicly disclosing his own
complaint. Id. at 406. The criminal penalty allowed for up to five years of
imprisonment. Id. at 407.
The Second Circuit took a different approach in Kamasinski v. Judicial
Review Council, 44 F.3d 106 (2d Cir. 1994). The court determined that a statute
that prohibited disclosure of a judicial misconduct complaint before the
commission could make a probable cause determination comported with the First
Amendment. Kamasinski, 44 F.3d at 111. The Second Circuit recognized as
compelling the state’s asserted interests in preventing harassment of judges from
frivolous complaints and encouraging inferior or incompetent judges to resign
voluntarily. Id.
The Court agrees that Motl reasonably relied on the constitutionality of the
statute under these circumstances. Similar to the Connecticut statute in
Kamasinski, Montana’s confidentiality provision applies only until the
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Commissioner makes a probable cause determination. Mont. Code Ann. § 2-2136(4). This limited rule seeks to balance the speaker’s First Amendment rights
with the need to protect public officials from frivolous complaints. See Mont. Code
Ann. § 2-2-136(1)(b), (4); Kamasinski, 44 F.3d at 108, 111. Tschida’s right to
speak publicly about his ethics complaint before a probable cause determination
remains subject to debate in light of the limited confidentiality provision of Mont.
Code Ann. § 2-2-136(4). See Ashcroft, 563 U.S. at 741.
Resolution of this debate will require the Court to analyze the confidentiality
provision in light of the Ninth Circuit’s decision in Lind, and decisions by other
courts in Stilp, Kamasinski, and Landmark. At this stage, however, the Court needs
to determine only whether the constitutionality of the confidentiality provision in
Montana’s public ethics statute remains subject to debate. Tschida argues that
Motl’s threat of criminal prosecution “greatly exceeded the bounds of § 2-2-136”
and thereby moves Motl’s conduct beyond the bounds of qualified immunity.
(Doc. 36 at 21.) This inquiry seems to lie outside the scope of the Ninth Circuit’s
two-part O’Brien test for qualified immunity. O’Brien, 818 F.3d at 936; Krainski,
616 F.3d at 968. The Court nevertheless will address it.
The Ninth Circuit has determined that an official “who acts in reliance on a
duly-enacted statute . . . is ordinarily entitled to qualified immunity.” Grossman,
33 F.3d at 1209. The Court noted, however, that an official enforcing a statute in “a
17

particularly egregious manner,” or a manner in which a reasonable official “would
recognize exceeds the bounds” of a statute will not be entitled to immunity even if
no clear case law has declared the ordinance or the official’s particular conduct
unconstitutional. Id. at 1210.
Portland police officers in Grossman arrested and handcuffed Grossman for
violating a city ordinance by protesting in a public park without a permit. Id. at
1202. Grossman sued the city and arresting officer for violating his First
Amendment right to free speech. Id. The Ninth Circuit determined that the
ordinance violated the First Amendment. Id. at 1207-08. The Court also
determined, however, that the officer was entitled to qualified immunity because
his actions were “‘objectively legally reasonable’” under the ordinance. Id. at 1210
(quoting Harlow, 457 U.S. at 819.) Given the existence of the ultimately
invalidated city ordinance, Grossman did not possess a clearly established First
Amendment right to protest in the park without a permit. Tschida too lacks a
clearly established First Amendment right to disclose his ethics complaint in light
of the confidentiality provision. Mont. Code Ann. § 2-2-136(4).
The Ninth Circuit in Tarabochia v. Adkins, 766 F.3d 1115 (9th Cir. 2014),
rejected a claim that Washington Department of Fish and Wildlife officers enjoyed
qualified immunity when they violated a fisherman’s clearly established Fourth
Amendment right to be free from an unreasonable search. The officers stopped a
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commercial fisherman’s truck on a public highway to check for compliance with
fish and game laws without reasonable suspicion that he had violated any such law.
Tarabochia, 766 F.3d at 1127. The statutes on which the officers relied for their
assertion of qualified immunity authorized warrantless administrative searches, but
did not provide for vehicle stops. Id. The officers could not rely upon the statutes
to immunize their actions. Id.
Tschida argues that, like the fish and wildlife officers in Tarabochia, Motl
exceeded the scope of his authority under Mont. Code Ann. § 2-2-136, by speaking
about the ethics complaint during the interview. It appears, however, that Motl
stayed within the proscriptions of Mont. Code Ann. § 2-2-136(5). This section
provides that the commissioner “may issue statements or respond to inquiries to
confirm that a complaint has been filed, to identify against whom it has been filed,
and to describe the procedural aspects and status of the case.” Mont. Code Ann. §
2-2-136(5). Motl responded to the interviewer’s inquiries. Motl confirmed that
Tschida’s complaint had been filed. And Motl commented on the procedure and
status of the case.
Tschida also argues that Motl’s threat of criminal sanctions overstepped his
authority to penalize violations of the statute. Under Mont. Code Ann. § 2-2136(2)(a), violations of the confidentiality provision could result in an
administrative penalty in the range of $50 to $1,000. Tschida correctly notes that
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Mont. Code Ann. § 2-2-136, provides the Commissioner no authority to pursue an
official misconduct prosecution or to impose criminal sanctions for violations of
the confidentiality statute.
Motl never represented, however, that he could or would prosecute Tschida
for official misconduct. Motl’s comments that Tschida could be subject to
punishment under the official misconduct statute, despite his inability to personally
pursue such prosecution, appears to comport with the statutory scheme. Mont.
Code Ann. § 45-7-401, provides that a public servant who “knowingly performs an
act in an official capacity that the public servant knows is forbidden by law” could
be charged with official misconduct. Tschida’s intentional disclosure of the
existence of his ethics complaint, knowing of the prohibition on disclosure
contained in Mont. Code Ann. § 2-2-136(4), potentially raises the question of
official misconduct.
The Court may question Motl’s judgment in commenting about the potential
consequences of Tschida’s disclosure of his ethics complaint given the
circumstances of a high profile election season and his significant position as
Commissioner of Political Practices. Officials enjoy “breathing room,” however, to
make “reasonable but mistaken judgments.” Aschroft, 563 U.S. at 741. Motl’s
discussion regarding the potential consequences of official misconduct falls within
the realm of correct and reasonable, but potentially mistaken judgments. Id.
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V.

CONCLUSION AND ORDER

Tschida lacked a clearly established constitutional right to speak about the
existence of his ethics complaint. The statute calls for confidentiality. The
confidentiality provision has never been challenged or ruled unconstitutional. The
cloak of qualified immunity attached to Motl in this case.
Accordingly, IT IS ORDERED that Defendant’s Motion to Dismiss (Doc.
26) is GRANTED. Plaintiffs second, third, and fourth claims are DISMISSED
WITH PREJUDICE.
DATED this 18th day of April, 2017.

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