United States District Court, D. Montana, Helena Division
MORRIS UNITED STATES DISTRICT COURT FUDGE
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 Motl, 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.
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 of
the 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
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 1.)
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 ethics complaint six weeks before his
disclosure. (Doc. 15-4 at 2.) The general election took place
November 8, 2016. (Doc. 65 at 2.)
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
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.” 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).
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 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 of the 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. §
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).
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
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
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(1)(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.)
The Confidentiality Provision as Applied to Elected
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). 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
The Commissioner's Content-Based Analysis
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 Ward v. 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 ...