United States District Court, D. Montana, Helena Division
Morris United States District Court Judge
Brad Tschida (“Tschida”) moves the Court to
modify the injunction it issued on December 18, 2017. (Doc.
94.) Tschida requests that the Court modify its injunction to
prevent the State from enforcing the confidentiality
requirement with regard to ethics complaints filed against
state officials appointed by the Governor. (Doc. 94.) The
Defendants oppose the motion. (Doc. 94.) 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.
Court will recite the history of this case only as relevant
to explain its reasoning.
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.) Tschida filed an amended ethics
complaint on September 21, 2016. (Doc.15-9 at 2.) 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.)
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.)
parties filed cross-motions for summary judgment. (Docs. 66
& 69.) The Court conducted a hearing on December 8, 2017.
(Doc. 84.) Tschida alleged that the confidentiality
requirement of Montana Code Annotated § 2-2-136(4),
violated the First Amendment. (Doc. 71 at 6.) The Court's
December 18, 2017 order found the confidentiality provision
of Montana Code Annotated § 2-2-136(4), to violate the
First Amendment as applied to elected officials, including
the Governor. (Doc. 86.) The Court determined the
confidentiality provision survived intermediate scrutiny,
however, as applied to complaints filed against state
employees. (Doc. 86.) The Court permanently enjoined
enforcement of the confidentiality provision contained within
Montana Code Annotated § 2-2-136(4), as applied to
ethics complaints filed against the Governor and other
elected officials in the State of Montana. (Doc. 86.)
appealed the Court's decision to the United States Court
of Appeals for the Ninth Circuit on February 14, 2018. (Doc.
90.) Pursuant to Fed.R.Civ.P. 62(c), Tschida requests that
the Court modify its injunction to prevent the State from
enforcing the confidentiality provision with regard to ethics
complaints filed against state officials appointed by
Governor Bullock. (Doc. 95.) Tschida cites the unlikelihood
of a final ruling from the Ninth Circuit this year as the
reason for a modification to the injunction. (Doc. 94.)
Tschida intends to file additional ethics complaints against
other state officials appointed by Governor Bullock. (Docs.
94 & 95-1.) Tschida intends to disclose publicly the
complaints upon filing them. (Docs. 94 & 95-1.) Tschida
contends he will not publicly disclose the complaints so long
as there exists a credible threat of civil or criminal
prosecution by the State. (Doc. 95-1.)
Rule of Civil Procedure 62(c) provides that a court may
“suspend, modify, restore, or grant an
injunction” when “an appeal is pending from an
interlocutory or final judgment” which “denies an
injunction.” A court must apply the same standard to a
request for an injunction pending appeal that it applies when
considering a motion for a preliminary injunction.
Alliance for the Wild Rockies v. Kruger, 35
F.Supp.3d 1259, 1263 (D. Mont. 2014) (citation omitted).
injunction represents an extraordinary remedy that a court
should never award as a matter of right. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
A plaintiff seeking injunctive relief must show: (1) that he
is likely to succeed on the merits; (2) that he is likely to
suffer irreparable harm in the absence of injunctive relief;
(3) that the balance of equities tips in his favor; and (4)
that an injunction is in the public interest.
Winter, 555 U.S. at 20 (citation omitted). The Court
“need not consider” the latter three elements
where the moving party has filed to demonstrate likelihood of
success on the merits. Garcia v. Google, Inc., 786
F.3d 733, 740 (9th Cir. 2015).
party fails to demonstrate likelihood of success on the
merits, a preliminary injunction may yet be appropriate
where: (1) a plaintiff raises “serious questions going
to the merits;” (2) “the balance of hardships
tips sharply in the plaintiff's favor;” and (3)
plaintiffs “satisfy the other Winter
factors.” Alli ...