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Tschida v. Mangan

United States District Court, D. Montana, Helena Division

August 1, 2018

BRAD TSCHIDA, Plaintiff,
v.
JEFF MANGAN, in his official capacity as the Commissioner of Political Practices, and JONATHAN MOTL, in his personal capacity, Defendants.

          ORDER

          Brian Morris United States District Court Judge

         INTRODUCTION

         Plaintiff 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.

         BACKGROUND

         The Court will recite the history of this case only as relevant to explain its reasoning.

         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.) 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.)

         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.)

         The 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.)

         Tschida 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.)

         LEGAL STANDARD

         Federal 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).

         An 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).

         Where a 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 ...


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