United States District Court, D. Montana, Helena Division
Morris United States District Court Judge.
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.
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 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.
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.
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.
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.)
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.
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.
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.
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.
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
12-13.) 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.
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. § 2-2-136(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 17-18. 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.
STANDARDS FOR DISMISSAL
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