Tschida v. Motl

Filing 85

ORDER granting in part with respect to Meg O'Leary, and denying in part 66 , with respect to the Governor, in accordance with the above order. Motion for Summary Judgment; granting in part, with respect to the Governor, and denying in part [69 ], with respect to Meg O'Leary. The Court permanently enjoins enforcement of the confidentiality provision contained within Mont. Code Ann. 2-2-136(4). as applied to ethics complaints filed against the Governor and other elected officials in the State of Montana. Signed by Judge Brian Morris on 12/15/2017. (HEG)

FILED

•

DEC 1 5 2017
IN THE UNITED STATES DISTRICT COURT cle~J~~,;:..~~urt
FOR THE DISTRICT OF MONTANA

Gre411 Falls

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
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 Mot!, 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.
1

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 ofthe 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 I.)
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

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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 oflaw." 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
(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 (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

3

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 ofthe 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

4

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(I)(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 (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 (2000).

5

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 (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 Wardv. Rock Against Racism, 491 U.S. 781, 791 (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 ofthe 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

6

complaint. Pennsylvania's ethics statute contained a confidentiality provision that
prohibited disclosure of the filing of the complaint. Sfilp, 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." /d. 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 ofthe validity ofan ethics complaint, the
complainant typically alleges some type of wrongdoing. This alleged wrongdoing
can include allegations that elected officials used their public offices for private gain
or enjoyment. Tschida challenges the confidentiality provision both on its face and
as applied to his September 21, 2016, amended ethics complaint. (Doc. 71 at 25.)

7

This type of speech "falls near to the core of the First Amendment." Lind, 30 F.3d
at 1118 (citing New York Times v. Sullivan, 376 U.S. 254, 270-71 (1964».
Similar to the complainant in Stilp, Tschida likely disclosed the filing of his
amended ethics complaint on the eve of the 2016 general election in order to affect
the outcome of the election. Snip, 613 F.3d at 414. Tschida claims specifically that
the Commissioner's failure to resolve his complaint until November 21, 2016, some
two weeks after the election, violated his First Amendment right to political speech.
(Doc. 72 at 25.) The Commissioner fails to explain how the "personal" nature of an
ethics complaint differs from the potential "political" nature in terms of First
Amendment analysis. Strict scrutiny must apply when the confidentiality provision
applies to complaints against elected officials. Jacobs, 526 F.3d at 43.
B. Montana's Interest in tbe Privacy of Elected Officials
Tschida's complaint implicated the Governor and a member of the
Governor's cabinet-Meg O'Leary, the Director ofthe Department of Commerce.
(Doc. 15-9 at 19.) The Ninth Circuit has recognized that elected officials must
endure "a heightened level of criticism." Lind, 30 F.3d at 1120. Elected officials
possess "no privacy interest in freedom from accusations, baseless though they
may be," regarding their conduct in public office. In re McClatchy Newspapers,

Inc., 288 F.3d 369, 373 (9th Cir. 2002). The Governor, as Montana's top elected

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official, must endure "a heightened level of criticism" regardless of how baseless
these accusations may be. Lind, 30 F.3d at 1120.
The Commissioner underscores the need for confidentiality by asserting that
the public disclosure of the filing of an ethics complaint conveys the state's
imprimatur or "increased legitimacy" to the allegations. (Doc. 67 at 24.) The Ninth
Circuit in Lind faced a similar claim regarding the confidentiality requirement for
complaints filed with Hawaii's campaign spending commission. Hawaii argued
that disclosure that a complaint had been filed "somehow lends the State's
imprimatur to such charges" and thereby dramatically increases the effectiveness
of the charges. Lind, 30 F.3d at 1119. Hawaii put it bluntly: "the confidentiality
requirement precludes the Commission's credibility from being invoked to buttress
scandalous charges in the heat of a campaign." ld.
These concerns proved "insufficient" to justify any restrictions on speech.
Hawaii could counter these concerns with the "truthful assertion that anyone can
file a complaint with the Commission, for any reason, regardless of the merit." ld.
Hawaii possessed no control over whether a party filed a complaint. Hawaii
possessed no control over when a person filed a complaint. Under those
circumstances, the Court concluded that ''the fact of filing simply cannot signal the
State's approval of a complainant's charges." Jd.

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The same logic applies here. Montana possesses no control over whether a
person files an ethics complaint. Montana possesses no control over when a person
might file an ethics complaint. The Commissioner plays no role in assisting a party
in filing an ethics complaint. The mere filing of an ethics complaint with the
Commissioner involves no state action, assistance, or approval. Mont. Code Ann. §
2-2-136(1)(a); Lind, 30 F.3d at 1119, n.2. Lind reached a similar conclusion with
regard to campaign finance complaints. Lind, 30 F.3d at 1119 n.3.
A grand jury represents a classic form of state action. The action of the state,
usually in the form of an investigation by police and prosecutors, "triggers" grand
jury proceedings. By contrast, no action by the state ''triggers'' campaign fmance
complaints in Hawaii or ethics complaints in Montana. Lind, 30 F.3d at 1119 n.3.
Disclosure of Tschida's ethics complaint divulged no confidential testimony of any
witnesses. The disclosure divulged no confidential statements by the
Commissioner or his staff. See Stilp, 613 F.3d at 414. Ethics complaints in
Montana do not carry "the imprimatur of official suspicion" that would justity
recognition of a privacy interest for elected officials with regard to allegations of
official misconduct. Lind, 30 F.3d at 1119 n.3. The Commissioner fails to
articulate a compelling governmental interest in protecting the Governor's privacy.
The Commissioner steadfastly asserts that publication of the filing of an
ethics complaint would amplity potentially frivolous complaints based entirely on
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speculation and complaints designed to accomplish nothing more than to
embarrass and harass elected officials. (Doc. 28 at 5.) Tschida's amended ethics
complaint provides a textbook example of speculation used for maximum potential
embarrassment and harassment. Tschida admitted that his claim that the Governor
somehow had accepted improper benefits from the Democratic Governor's
Association had been "more speculative in nature" that "couldn't be 100 percent
corroborated." (Doc. 70-1 at 44-45.)
Tschida further coarsened our political discourse with entirely speculative
claims regarding the Governor and 0 'Leary and their unsubstantiated use of state­
owned aircraft to facilitate "a personal relationship." (Doc. 15-4 at I.) Montana's
elected officials may take cold comfort in the notion that even a false statement
may be deemed to make a valuable contribution to public debate as it brings about
"the clearer perception and livelier impression of truth, produced by its collision
with error." Sullivan, 376 U.S. at 279 n. 19 (1964) (quoting John Stuart Mill, On
Liberty 15 (Oxford: Blackwell 1947)).

The Second Circuit in Kamasinski v. Judicial Review Council, 44 F3d 106
(2d Cir. 1994), accepted the notion that the "bully pulpit" effect existed. The Court
distinguished the concern that the public would overvalue the complaint from the
greater concern that complainants would be tempted to "engage in a campaign of
harassment" when armed with the ability to make public the fact of a complaint.

11

Kamasinski, 44 F 3d at Ill. This concern resonated in the context of allegations of
judicial misconduct before Connecticut's judicial review council.
The publication of the filing of complaints against judges could "result in
influences that lead to the loss ofjudicial independence" and an uptick in filings of
frivolous complaints. Id. The Court further highlighted Connecticut's interest in
encouraging infirm or incompetent judges to step down voluntarily. The Court
opined, without elaboration, that the likelihood of infirm or incompetent judges
stepping down voluntarily would be "greatly reduced after publication that
complaints have been filed against them." Id. (citing Landmark Communications,

Inc. v. Virginia, 435 U.S. 829, 835-36 (1978)).
These same concerns do not apply here. With respect to the Governor and
other elected officials, the concept of "independence" gains no traction. Montana's
partisan election system anticipates and fully expects elected officials to promote
the policies and interests of their respective political parties. Montana also need not
concern itself with the fear that infirm, incompetent, or even corrupt elected
officials would hesitate to resign in the face of an ethics complaint and thereby
tacitly admit to the validity of the complaint. Montana possesses a nearly perfect
remedy to remove infirm, incompetent, or even corrupt elected officials that
involves no suppression of protected speech - elections.

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C. The Lack of Narrow Tailoring
Even if the Commissioner could establish that the confidentiality provision
promotes a compelling state interest as applied to elected officials, the Montana
Legislature has failed to tailor narrowly the restrictions on protected speech. The
Commissioner contrasts Montana's confidentiality provision with the similar
provision at issue in Lind. Hawaii's statute required confidentiality throughout the
entire review process - permanently ifthe commission found no probable cause.

Lind, 30 F.3d at 1117.
The Commissioner argues that Montana's statute mandates confidentiality
only "before a probable cause determination." (Doc. 67 at 27.) The language of
Montana's statute imposes no such limitation. Mont. Code Ann. § 2-2-136(4). The
statute simply provides that the complainant and the subject of the complaint must
maintain the confidentiality of the complaint "until the commissioner issues a
decision." Id. The statute provides no direction to the Commissioner on the
meaning of "decision" within Mont. Code Ann. § 2-2-136(4). The confidentiality
provision imposes no temporal limitation on the Commissioner to make any
"decision," whether it relates to probable cause or a final decision on the merits.
The Commissioner determined in resolving Tschida's amended ethics complaint
that the confidentiality provision only lasts through the probable cause
determination. (Doc. 15-9 at 8-9.)

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The Commissioner admitted to having placed a lower priority on reviewing
Tschida's amended ethics complaint in favor of resolving campaign finance
complaints. (Doc. 65 at 2.) The Commissioner previously had pledged to address
campaign finance complaints "in real time" before the pending 2016 general
election. (Doc. 65 at 2.) The Commissioner did not issue a decision on Tschida's
amended ethics complaint until November 21, 2016, some two weeks after the
, general election. (Doc. 65 at 4.)
The Commissioner contends that the "pressing workload" at election time
provides a reasonable explanation for any delay in resolving Tschida's complaint
until after the election. (Doc. 67 at 32.) The Court offers no view on the
reasonableness of the Commissioner's explanation for the delay in resolving
Tschida's amended ethics complaint. The Court simply notes that the
confidentiality provision contains no mechanism to prevent the Commissioner
from suppressing a complainant's political speech regarding the filing of the
complaint against an elected official for as long as the Commissioner deems
appropriate.
As applied to Tschida's amended ethics complaint, the statute operated to
allow the Commissioner to suppress Tschida's speech regarding his filing of the
amended ethics complaint against the Governor at the time that it proved most
relevant in violation of the First Amendment. This conclusion does nothing to

]4

encourage qualified citizens to run for elected offices. It represents the trade-off we
must accept, however, to live in a free society. It further comports with our
"profound national commitment to the principle that debate on public issues should
be unlimited, robust, and wide-open, and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on governmental public
officials." Sullivan, 376 U.S. at 270-71.

II.

The Confidentiality Provision as Applied to State Employees
The Commissioner asserts that the confidentiality provision serves an

important governmental interest in protecting the privacy of unelected state
employees who find themselves the subjects of ethics complaints. The
Commissioner supports this argument by pointing out that unelected state
employees comprise the largest group potentially subject to an ethics complaint.
(Doc. 67 at 20.) The parties agree that 14,283 public employees work for the State
of Montana. (Doc. 68 at 3). The parties also agree that Montana has only 231
elected officials at the state and county level subject to the Montana Code of
Ethics.ld.
Not surprisingly, the bulk of ethics complaints appear to relate to unelected
state employees. Between January 1,2012 and June 1,2017, the Commissioner
received 41 ethics complaints. (Doc. 70-3 at 53.) The 41 ethics complaints alleged
violations by 85 individuals and organizations. (Doc. 70-3 at 53.) Of those 85
15

respondents, according to the Commissioner, only 22 are elected or appointed
officials who were subject to the confidentiality provision in Mont. Code Ann. § 2­
2-136(4). (Doc. 70-3 at 53; Doc. 82 at 7.)

A. Intermediate Scrutiny Applies to Employee Privacy Interests
The Ninth Circuit has not addressed directly the degree of privacy that
should be afforded to political appointees and state employees. The Ninth Circuit
has noted that even unelected political candidates and their supporters "must be
prepared" to endure discussion oftheir respective campaign spending and
contribution practices. Lind, 30 F.3d at 1120. Montana's ethics code sweeps more
broadly than the "rough and tumble" of election campaigns. Montana's ethics code
classifies both elected officials and the appointed "directors of the executive
branch" as "State officers." Mont. Code Ann. § 2-2-102(11). Other courts have
focused, however, on the special role played by elected officials.
The ethics law in Stilp focused on holders of "public office." Stilp, 613 F.3d
at 406-07. The statement ofpurpose discussed the need to "strengthen the faith and
confidence" ofthe citizens of Pennsylvania that the financial interests of
"nominees or candidates for public office do not conflict with the public trust." Id.
at 407. The complaint originally filed in Stilp alleged the improper use of public
funds for political purposes by a prominent member of the Pennsylvania
legislature. Id. at 408. The law at issue in Lind applied to candidates for public
16

office, their campaign's financial supporters, and political groups. Lind, 30 F.3d at
1117 -18. AU of these targets voluntarily entered the political arena. The Court
agrees that complaints in these cases raised issues of protected political speech that
required application of strict scrutiny.
The Supreme Court in NASA v. Nelson, 562 U.S. 134 (2011), reasoned that
the federal Privacy Act's nondisclosure requirement gives "forceful recognition" to
a federal employee's interest in maintaining the "confidentiality of sensitive
information in his personnel files." ld. at 156 (quoting Detroit Edison Co. v. NLRB,
440 U.S. 301, 318 n.l6 (1979)). Montana, too, has acknowledged the privacy interest
possessed by public employees in relation to personnel matters and even "internal
disciplinary matters." Billings Gazette v. City ofBillings, 313 P.3d 129, 140 (Mont.
2013) ("Billings Gazette II"); see also Moe v. Butte-Silver Bow County, 371 P.3d
415 (Mont. 2016). Delegates to the Montana Constitutional Convention recognized
that a deliberation regarding personnel matters for state employees "would ordinarily
be classified and would not be public" as the Bill of Rights Committee considered
such matters to be "private." Mont. Const. Conv. Vol. Vat 1670-71. By contrast,
Montana law opens campaign finance complaints to public inspection. Mont. Code
Ann. § 13-37-119.
Unlike elected officers, unelected political appointees and state employees
have not sacrificed their privacy by "injecting themselves into public debate."
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Lind, 30 F.3d at 1120. To suggest that O'Leary occupies a position of public trust
proves unavailing. All public employees in Montana, from the Governor, to
university presidents, to town clerks, serve in positions of public trust. Billings
Gazette v. City ofBillings, 267 P.3d 11, 15-18 (Mont. 2011) (discussing cases).
Montana's six public university presidents nevertheless enjoy a presumption of
privacy in their employment-related matters. Missoulian v. Board ofRegents, 675
P.2d 962, 968 (Mont. 1984). It stands to reason that O'Leary, as Director of the
Department of Commerce, would enjoy the same presumption of privacy in
employment-related matters as a public university president.
As the Supreme Court instructed in Ward, the "government's purpose" for
adopting the regulation represents "the principal inquiry" in discerning content­
neutrality. Ward, 491 U.S. at 791. With regard to state employees, the
confidentiality provision marks no "disagreement with the message" that the ethics
complaint may convey. [d. The confidentiality provision instead "serves purposes
unrelated to the content of the expression" for ethics complaints against state
employees. ld.
The fact that ethics complaints may result in disciplinary action by the
employing state agency justifies this "employment-related" approach to the
confidentiality provision as applied to state employees. Mont. Code Ann. § 2-2­
l36(2)(c). Information relevant to employment may be subject to additional
18

privacy interests, including sensitive information in personnel files, such as health
records, disciplinary reports, and past illegal drug use. NASA, 562 U.S. at 156-58;
see also Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (referring to public

employees' constitutional privacy "interest in avoiding disclosure of personal
matters"). The confidentiality provision serves to protect these legitimate privacy
interests for state employees, as recognized in NASA and Whalen, and by the
Montana Supreme Court in Billings Gazette II and Missoulian.
The Court will apply the intermediate level of scrutiny to the confidentiality
provision with regard to un elected state employees, including O'leary. The
confidentiality provision must promote an important or substantial state interest
and impose only an incidental restriction on speech. Turner Broadcasting. Inc. v.

F.CC, 512 U.S. 622, 662 (1994). This incidental burden on speech must be
unrelated to the suppression of free expression. Turner Broadcasting, Inc., 512
U.S. at 662. The incidental restrictions on First Amendment freedoms must be no
greater than is essential to the furtherance of that interest. Id. The confidentiality
provision need not be the least speech-restrictive means of advancing the state's
interests, but instead must promote "a substantial government interest that would
be achieved less effectively absent the regulation." Id. (quoting Ward, 491 U.S. at
799). In other words, the confidentiality provision must not "burden substantially
more speech than is necessary to further the government's legitimate interests." !d.
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B. Incidental Burden as Applied to State Employees
The Montana Legislature tailored the confidentiality provision to allow the
Commissioner leeway to mandate confidentiality of potentially serious personnel
matters and other private information. For example, the confidentiality provision
suppresses only the "complaint and records obtained or prepared by the
commissioner in connection with an investigation or complaint." Mont. Code Ann.

§ 2-2-136(4). The complainant remains free to publicize the facts or allegations
underlying the complaint (Docs. 19 at 12; 67 at 28.) The Commissioner also may
confirm the filing of a complaint, identify the subject of the complaint, and provide
procedural updates. Mont. Code Ann. § 2-2-136(5).
The Court agrees that complainants, including Tschida, possess available
alternative methods, in the state employee context, to speak about the facts
underlying the complaint or to disclose the fact of the complaint itselfthrough the
Commissioner's office without violating Mont. Code Ann. § 2-2-136(4). The
Supreme Court in Madsen v. Women's Health Center, 512 U.S. 753,770 (1994),
upheld a 36-foot buffer zone around an abortion clinic and restrictions on noise
levels due to the ample availability of other methods for protestors to get out their
message. Tschida possesses ample other avenues to get out his message.
Nothing prohibited Tschida from speaking separately about the allegations
of misconduct contained in his complaint against O'Leary. The confidentiality
20

provision prohibited Tschida from discussing only his decision to memorialize
those allegations against O'Leary in his amended ethics complaint to the
Commissioner. This availability ofaltemative communication methods reflects the
legislature's narrow tailoring of the confidentiality provision. Madsen, 512 U.S. at

770; see also Ward, 491 U.S. at 802-03 (upholding city's narrowly tailored
restrictions on loud music volume).
Tschida counters that the Commissioner could protect the privacy of state
employees named in ethics complaints through means less restrictive on speech
than the confidentiality provision. For example, Tschida suggests that the
Commissioner could post disclaimers on the Commissioner's website to emphasize
that complaints represent merely allegations not endorsed by the State of Montana.
Tschida suggests that the Commissioner could inform subject of the ethics
complaints of the availability of consulting with legal counsel regarding potential
civil torts against complainants who file frivolous or libelous ethics complaints.
And finally, Tschida argues that the legislature could enact civil or criminal
penalties for knowingly filing a false ethics complaint. (Doc. 71 at 24.)
Tschida's critiques of the confidentiality provision miss the mark with
respect to state employees. The confidentiality provision need not be the least
speech-restrictive means to advance the state's important interest in protecting the
privacy of state employees. The Montana Legislature has determined that the ideas
21

•

posited by Tschida would achieve less effectively the important interest in
protecting the privacy of state employees than the confidentiality provision, as
added by amendment in 2001. See Turner Broadcasting, Inc., 512 U.S. at 662. The
First Amendment affords this limited discretion to the Montana Legislature in
determining how best to protect the important privacy interests of state employees,
including O'Leary, who find themselves the subject of an ethics complaint. Id
CONCLUSION
The First Amendment protects Tschida's disclosure of the amended ethics
complaint that he filed against the Governor. The confidentiality provision of
Mont. Code Ann. § 2-2-136(4) imposes a content-based restriction on political
speech that subjects the provision to strict scrutiny as applied to Tschida's
complaint against the Governor. The Commissioner has failed to demonstrate that
the confidentiality provision serves a compelling governmental interest in
protecting the privacy of state elected officials against claims of official
misconduct.
Further, the legislature failed to tailor the statute narrOWly. The statute
provides the Commissioner with limited guidance on how to evaluate probable
cause. The statute proscribes no length of time in which the Commissioner must
make the "decision" regarding probable cause. Accordingly, the confidentiality
provision violates Tschida's First Amendment right to engage in political speech as
22

•

•
applied to his complaint against the Governor. Lind, 30 F.3d at 1118; Stilp, 613
FJd at 414.
Tschida's claims fail, however, to meet the high standard for a facial
challenge as the Commissioner has demonstrated that the confidentiality provision
survives a First Amendment challenge under some circumstances. Montana's
interest in protecting the privacy ofunelected state employees, including O'Leary,
exceeds that of elected state officers. Protection of the privacy of non-elected state
employees qualifies as an important state interest. NASA, 562 U.S. at 156-58;
Billings Gazette II, 313 P.3d at 140.
The Montana Legislature tailored the confidentiality requirement to that end
by suppressing disclosure by the complainant only of the full complaint as filed.
The confidentiality provision allows the complainant to disclose the allegations
underlying the complaint and accompanying documents. The Commissioner has
further limited application of the confidentiality provision up to the time that the
Commissioner makes a probable cause determination. The Court declines to
second-guess the Montana Legislature's judgment as to the most effective method
to protect the privacy interests of state employees. Turner Broadcasting, Inc., 512

U.S. at 662.

23

,

.

ORDER

The confidentiality provision of Mont. Code Ann. § 2-2-136(4) violates the
First Amendment as applied to elected officials, including the Governor in this
case. The confidentiality provision survives intermediate scrutiny, however, as
applied to complaints filed against to state employees, including the complaint
against O'Leary in this case.
Accordingly, IT IS ORDERED that Tschida's Motion for Partial Summary
Judgment (Doc. 69) is GRANTED IN PART, with respect to the Governor, and
DENIED IN PART, with respect to Meg O'Leary, in accordance with the above

Order.
IT IS FURTHER ORDERED that the Commissioner's Motion for

Summary Judgment (Doc. 66) is GRANTED IN PART, with respect to Meg
O'Leary, and DENIED IN PART, with respect to the Governor, in accordance
with the above Order.
The Court permanently enjoins enforcement of the confidentiality provision
contained within Mont. Code Ann. § 2-2-136 (4), as applied to ethics complaints
filed against the Governor and other elected officials in the State of Montana.

DATED this 15th day of December, 2017.

Brian Morris

U oited States District Court Jodge