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Tschida v. Motl

United States District Court, D. Montana, Helena Division

April 18, 2017

BRAD TSCHIDA, Plaintiff,
v.
JONATHAN MOTL, Defendant.

          ORDER

          Brian Morris United States District Court Judge.

         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 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.

         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.

         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 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.

         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. § 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.

         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 ...


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