matthew g. monforton (montana bar # 5245) monforton law … · 2016-11-08 · matthew g. monforton...

Matthew G. Monforton (Montana Bar # 5245) Monforton Law Offices, PLLC 32 Kelly Court Bozeman, Montana 59718 Telephone: (406) 570-2949 Facsimile: (406) 551-6919 E-mail: [email protected] Attorney for Plaintiff Brad Tschida

UNITED STATES DISTRICT COURT DISTRICT OF MONTANA

HELENA DIVISION

BRAD TSCHIDA, Plaintiff, v. JONATHAN MOTL, in his official capacity as Montana’s Commissioner of Political Practices, Defendant.

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Case No. 6:16-cv-00102 BRIEF IN SUPPORT OF PLAINTIFF’S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION ***Immediate Relief Requested

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Case 6:16-cv-00102 Document 3 Filed 11/07/16 of 32

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TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................... v

INTRODUCTION ..................................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 4

ARGUMENT .......................................................................................................... 11

I. THE GAG RULE IN § 2-2-136(4), MCA, VIOLATES THE FIRST AMENDMENT ON ITS FACE .......................................................... 11

A. The State Has No Compelling Interest in Suppressing Speech Detailing Misuse of State Resources By Governor Bullock .................. 11

B. The Gag Rule is Substantially Overbroad Because It Extends

Throughout All of the Ethics Proceedings .............................................. 13

C. The Gag Rule is Substantially Overbroad Because It Applies Not Just to Employees But Also to Public Officials Seeking Re-Election ................................................................ 15

D. The Gag Rule is Fatally Underinclusive Because It

Does Not Apply to Respondents or Witnesses ....................................... 16 II. THE GAG RULE VIOLATES THE FIRST AMENDMENT AS APPLIED TO REPRESENTATIVE TSCHIDA’S SPEECH WITH FELLOW LEGISLATORS CONCERNING GOVERNOR BULLOCK’S MISUSE OF STATE RESOURCES ........................................ 18 III. THE STATEMENTS BY REPRESENTATIVE TSCHIDA ARE

PROTECTED BY THE SPEECH AND DEBATE PROVISION OF THE MONTANA CONSTITUTION ........................................................ 19 IV. REPRESENTATIVE TSCHIDA SATISFIES THE REQUIREMENTS FOR INJUNCTIVE RELIEF ........................................... 22 CONCLUSION ....................................................................................................... 25


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TABLE OF AUTHORITIES Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ......................................................................... 23 Boos v. Barry, 485 U.S. 312 (1988) ......................................................................................... 15 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ......................................................................................... 13 Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729 (2011) ......................................................................... 16, 17, 18 Citizens United v. FEC, 130 S. Ct. 876 (2010) ................................................................................. 11, 12 City of Ladue v. Gilleo, 512 U.S. 43 (1994) ........................................................................................... 16 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 944 (9th Cir. 2011) .................................................................... 13 Cooper v. Glaser, 2010 MT 55, 228 P.3d 443, 355 Mont. 342 ................................................ 2, 20 Elrod v. Burns, 427 U.S. 347, 373-74 (1976) ........................................................................... 23 Estes v. Texas, 381 U.S. 532 (1965) ......................................................................................... 14 Flynt Distrib. Co. v. Harvey, 734 F.2d 1389 (9th Cir. 1984) ........................................................................... 8 Gravel v. United States, 408 U.S. 606 (1972) ..................................................................................... 2, 20 In re Oliver, 333 U.S. 257 (1948) ......................................................................................... 14


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Jacobs v. Clark County School Dist., 526 F.3d 419 (9th Cir. 2008) ..................................................................... 11-12 Joelner v. Washington Park, 378 F.3d 613 (7th Cir. 2004) ........................................................................... 25 Johnson v. Couturier, 572 F.3d 1067 (9th Cir. 2009) ........................................................................... 8 Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994) .................................................................... passim Monterey Mechanical Co v. Wilson, 125 F.3d 702 (9th Cir. 1997) ........................................................................... 23 Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) ......................................................................................... 11 Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978) ......................................................................... 21 Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) ................................................................................ 16, 17 Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ......................................................................................... 16 Sammartano v. First Judicial Dist. Court, 303 F.3d 959 (9th Cir. 2002) ........................................................................... 24 Sanders County Rep. Cent. Comm. v. Bullock, 698 F.3d 741 (9th Cir. 2012) ........................................................................... 24 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ......................................................................... 23 Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) ............................................................. 23-24, 25


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Whitney v. California, 274 U.S. 357 (1927) ......................................................................................... 12 Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365 (2008) ........................................................................................ 22 MONTANA CONSTITUTION Art. V, § 6 ........................................................................................................ 21 Art. V, § 8 .............................................................................................. 2, 19-20 Art. V, § 10(4) ........................................................................................... 18, 21 MONTANA CODE ANNOTATED § 2-2-136 ................................................................................................... passim § 2-9-111(c)(i)(b) ............................................................................................. 18


INTRODUCTION

This action arises from a state executive branch official threatening a sitting

state representative, Plaintiff Brad Tschida, with civil and criminal penalties for

disclosing evidence to fellow legislators about the misuse of state resources by

Governor Steve Bullock. Representative Tschida provided other legislators a copy

of an ethics complaint he had previously filed as well as documentation showing

that Governor Bullock has been illegally relying upon a state-paid attorney to

represent him in the ethics matter. This disclosure was part of a larger discussion

among legislators seeking to establish a special legislative committee to investigate

misuse of state resources by Governor Bullock.

Over the past several days, Montana’s Commissioner of Political Practices,

Defendant Jonathan Motl, has repeatedly and publicly threatened to impose

“severe penalties” on Representative Tschida after Election Day, and has

repeatedly described his disclosure of the ethics complaint as a criminal act.

Defendant Motl’s intimidation and harassment comes at a time when legislators,

including dozens of freshman who will be elected in the next few days, need to

engage in extensive, daily communications with their colleagues in order to gear

up for the fast-paced, 90-day biannual session of the Montana Legislature.

Defendant Motl’s outrageous threats have chilled Representative Tschida

(and likely many other legislators) from communicating with other legislators


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regarding oversight of executive branch expenditures. Defendant Motl bases his

threats on the gag rule in 2-2-136(4), MCA, which prohibits a complainant from

publicly disclosing the existence of his or her ethics complaint until Defendant

Motl renders a decision on it. The Ninth Circuit in Lind v. Grimmer, 30 F.3d 1115

(9th Cir. 1994), however, struck down a similar gag order Hawaii imposed upon

complaints alleging campaign finance violations. The court in Lind held that

Hawaii had no compelling state interest in suppressing protected First Amendment

speech by complainants concerning their own campaign finance complaints. Lind

controls this matter.

Additionally, Defendant Motl’s outrageous threats violate the Speech and

Debate Clause of Article V, § 8 of the Montana Constitution. Like its analogue in

the United States Constitution, Montana’s Speech and Debate Clause enables

legislators to discuss legislative matter with each other without harassment or

intimidation from the executive branch. Cooper v. Glaser, 2010 MT 55, ¶¶ 10-11,

228 P.3d 443, 355 Mont. 342; see also Gravel v. United States, 408 U.S. 606, 616

(1972) (federal constitution’s Speech and Debate Clause was “designed to assure a

co-equal branch of the government wide freedom of speech, debate, and

deliberation without intimidation or threats from the Executive Branch.”).

Defendant Motl’s outrageous conduct in this matter is exactly the kind of

intimidation of legislators the Speech and Debate Clause was intended to prevent.


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Representative Tschida and other legislators exchanged letters for the purpose of

preparing a special committee of the Legislature to investigate misuse of state

resources by Governor Bullock. Governor Bullock’s hand-picked Commissioner

of Political Practices has responded by seeking to criminalize Representative

Tschida’s communications with his colleagues. The Speech and Debate Clause

does not permit this kind of extortion of legislators by the executive branch.

Representative Tschida has refrained from further communications with

legislators concerning Governor Bullock’s misconduct. Defendant Motl’s threats

are impeding performance of legislative oversight duties by Representative

Tschida – and probably other legislators. Indeed, at 7:30 a.m. this morning,

Defendant Motl issued an email to over 90 legislators “reminding” them of the gag

rule’s application to Representative Tschida’s complaint. See Exhibit 5. And, if

Defendant Motl is to be taken at his word, formal proceedings (including possibly

criminal proceedings) will commence against Representative Tschida within days.

Representative Tschida therefore respectfully requests that a temporary restraining

order issue at the Court’s earliest convenience enjoining Defendant Motl from

penalizing Representative Tschida for his legislative speech, as well as an order to

show cause as to why a preliminary injunction should not issue.


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STATEMENT OF FACTS

I. Procedures Governing Montana Ethics Complaints

Section 2-2-136, MCA, establishes a procedure by which persons may file a

complaint if they believe a state officer, legislator, state employee, or county

attorney has violated state ethics laws, such as accepting illegal gifts. Ethics

complaints must be filed with Defendant Motl, who reviews them to ensure they

are (1) not frivolous, (2) sufficiently state a claim, and (3) that the claim involves

issues not previously ruled upon by him. § 2-2-136(1)(a) & (b), MCA. He may

summarily dismiss complaints failing to satisfy any of these requirements. Id. He

may request additional information from the parties in determining whether the

complaint states a claim. § 2-2-136(1)(a), MCA.

If Defendant Motl determines the complaint to be sufficient, he must set the

matter for a contested hearing under the Montana Administrative Procedure Act.

§ 2-2-136(1)(c), MCA; Mont. Adm. Rule 44.10.613(2). The parties may conduct

discovery prior to the hearing. Mont. Adm. Rules 1.3.217 & 44.10.613(3). At the

hearing, all witnesses testify under oath and are subject to cross-examination. § 2-4-

604(4) & (5). Defendant Motl issues a decision based upon the record. § 2-2-

136(1)(c), MCA.

A complainant is subject to a gag rule from the moment the complaint is

filed until Defendant Motl issues his decision. § 2-2-136(4), MCA. The gag rule


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encompasses the complaint itself and any related documents released to the parties

by Defendant Motl. Id. Violations of the gag rule result in penalties of $50 to

$1,000. § 2-2-136(2)(a), MCA. Additionally, Defendant Motl has publicly stated

that a violation of the gag rule constitutes the crime of official misconduct.1

II. Representative Tschida’s Communications With Fellow

Legislators Concerning His Ethics Complaint and Governor Bullock’s Misconduct in Responding to the Complaint Representative Brad Tschida is a member of the Montana House of

Representatives. Declaration of Rep. Brad Tschida, ¶ 3.2 He was elected in

November 2014 to represent House District 97. Tschida Declaration, ¶ 4. He is

currently seeking re-election. Id., ¶ 5.

On or about September 19, 2016, Representative Tschida filed an ethics

complaint against Governor Steve Bullock and a member of his cabinet,

Commerce Director Meg O’Leary. Id., ¶ 6. The complaint arose from Governor

Bullock’s illegal use of a state-owned aircraft to fly him and Director O’Leary to

Missoula in August 2014 for purposes of attending a concert performed by Paul

McCartney. Id., ¶ 7. The complaint alleges Governor Bullock and Director

O’Leary attended the concert at the invitation of University of Montana President

1 See page 9, infra. 2 Rep. Tschida’s declaration is attached as Exhibit 1.


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Royce Engstrom and Mary Engstrom, who invited Governor Bullock “and a guest

to join them in the President’s Box to watch Sir Paul McCartney as he performs his

‘Out There’ concert.” Id., ¶ 8. The use of the state-owned aircraft by Governor

Bullock and Director O’Leary and their acceptance of seating in the President’s

Box to attend the concert constituted illegal gifts under Montana law. Id., ¶ 9.

After Representative Tschida filed the ethics complaint, Defendant Jonathan Motl

ordered him not to disclose the existence of the complaint. Id., ¶ 10.

On September 23, 2016, Andrew Huff, who serves as Legal Counsel to

Governor Bullock and is a state-paid attorney, appeared telephonically on behalf of

the Governor and requested an extension to respond to the complaint, which

Defendant Motl granted. Id., ¶¶ 11-12. Representative Tschida was concerned

about what appeared to be yet another misuse of state resources by Governor

Bullock for personal purposes – the use of a state-paid attorney to respond to

allegations of personal ethics violations. Id., ¶ 13. Other Montana officials retain

private counsel to respond to ethics complaints rather than rely upon state-paid

attorneys. For example, Brad Molnar, a former commissioner for Montana’s

Public Service Commission, was named in a state ethics complaint in 2010.3

3 A copy of the Molnar decision is posted on Defendant Motl’s website at <www.politicalpractices.mt.gov/content/2recentdecisions/FoxvMolnarDecision>


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Molnar did not defend himself with a state-paid attorney but instead retained

private counsel at his own expense in order to respond to the ethics complaint. Id.

On October 24, 2016, Senator Dee Brown and Senator Bob Keenan, both of

whom are members of the Montana Senate, sent a letter to Representative Tschida

and other legislators to obtain support for convening a select committee to

investigate allegations by state employees of misuse of state funds by Governor

Bullock well as retaliation against state employees for blowing the whistle on him.

Id., ¶ 14. These allegations included:

• Former internal agency auditors being discouraged from investigating fraudulent payments;

• Seven long-tenured auditors of the Department of Public Health and Human

Services (DPHHS) being fired after raising red flags about agency activity;

• DPHHS auditors being bullied by state officials after speaking up about potentially fraudulent payments made to undocumented welfare recipients;

• Employees being stripped of responsibilities, isolated from colleagues and

forced into retirement after refusing to perform fraudulent acts;

• Officials accusing competent employees of insubordination as a means of getting rid of those who blow the whistle;

• Auditors being discouraged or prevented from fully investigating

questionable transactions, sometimes through bullying;

• Confidential settlement payments being made to former state employees since January of 2013 as well as allegations that some of the settlements were the result of wrongful termination complaints brought against the state.

Id., ¶ 15.


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Representative Tschida responded on November 2, 2016, with his own letter

confirming his support for a select committee. Id., ¶ 16. He included with that

letter a copy of the ethics complaint as well as a letter from Defendant Motl to Mr.

Huff, Governor Bullock’s state-paid counsel, memorializing the extension Motl

granted to Huff and Governor Bullock. Id., ¶ 17.

Evidence of Governor Bullock’s illegal use of a state attorney to defend

himself against ethics charges is directly relevant to the planned select committee.

Id., ¶ 18. Representative Tschida would not have been able to disclose evidence of

Governor Bullock’s misconduct in the ethics proceeding without also disclosing

the existence of the ethics proceeding itself. Id., ¶ 19.

Later on November 2, 2016, the Great Falls Tribune obtained a copy of

Representative Tschida’s letter and published a story about it.4 Defendant Motl

informed the Tribune that he would seek a “severe penalty” against Representative

Tschida for informing fellow legislators of the ethics complaint. Id.

4 That story can be found at <greatfallstribune.com/story/news/local/2016/11/02/ethics-complaint-email-sparks-controversy/93204644/> and a copy of it is attached as Exhibit 2. This and other news stories are offered for the non-hearsay purpose of showing Representative Tschida’s state of mind concerning the chilling of his speech by Defendant Motl. Representative Tschida also notes that hearsay evidence may be properly received by the Court in a TRO proceeding. Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).


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On November 3, 2016, Defendant Motl was interviewed on radio station

KGVO in Missoula, Montana.5 During that interview, he stated the following with

regard to Representative Tschida:

Defendant Motl: There’s, uh, the main consequence that befalls an official who, um, violates a mandatory duty is official misconduct. Interviewer: And that would be a charge in civil court? Defendant Motl: No, it’s criminal court. Interviewer: It’s a criminal court charge? Defendant Motl: Yes. Id. Defendant Motl further stated that he did not expect anyone to file charges

against Representative Tschida before Election Day. Id. On that same day,

Defendant Motl told the Helena Independent Record that Representative Tschida

faced six months in jail for his communication with fellow legislators.6

On November 4, 2016, Defendant Motl was interviewed by the Associated

Press.7 During the interview, Defendant Motl claimed that Representative Tschida

violated the gag rule again by recounting the contents of the ethics complaint in the

5 A recording of the full interview can be accessed at <youtube.com/watch?v=cXXUIL49QSM> 6 See <helenair.com/news/state-and-regional/lawmaker-reveals-confidential-complaint-against-bullock/article_0a33de61-94a1-5973-9541-0a963b47a978.html>. A copy of this story is attached as Exhibit 3. 7 This story is accessible at <www.washingtontimes.com/news/2016/nov/4/lawmaker-sues-montana-commissioner-of-political-pr/> A copy of it is attached as Exhibit 4.


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complaint filed in this Court. Id. He also claimed that Representative Tschida

“has now brought Monforton into the mess.” Id.8 He stated further that “What

we’ve got here is a pretty serious magnification of an original improper action by

Mr. Tschida,” and that “Monforton didn’t improve Mr. Tschida’s situation. He

made it worse. And now he’s involved in it himself.” Id. He repeated his

assertion that Representative Tschida committed “official misconduct.” Id.

Defendant Motl declined to say what penalties undersigned counsel could face,

“the appropriateness or inappropriateness of anyone’s actions will be straightened

out afterward.” Id.

Representative Tschida is aware of the threats and accusations of criminal

conduct made against him by Defendant Motl in the Great Falls Tribune, Helena

Independent Record, KGVO radio, and the Associated Press. Id., ¶ 21. In

response, he has refrained from further communications with legislators

concerning Governor Bullock’s misconduct. Id., ¶ 22. Absent relief from this

Court, Defendant Motl’s unconstitutional threats will continue to prevent

Representative Tschida (and probably other legislators) from performing their

legislative oversight duties with regard to Governor Bullock’s misuse of state

resources, particularly his misuse of a state-paid attorney to represent him in the

ongoing ethics proceedings. Id., ¶ 23.

8 Defendant Motl was presumably referring to undersigned counsel.


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On the morning of November 7, 2016, Defendant Motl transmitted an email

to over 90 members of the Montana Legislature “reminding” them of the gag rule.

Exhibit 5.

ARGUMENT I. THE GAG RULE IN § 2-2-136(4), MCA, VIOLATES THE FIRST

AMENDMENT ON ITS FACE

A. The State Has No Compelling Interest in Suppressing Speech Detailing Misuse of State Resources By Governor Bullock

Representative Tschida desires to discuss with fellow legislators his

observations concerning Governor Bullock’s misuse of state resources, including

his use of a state-paid attorney to represent him in ethics proceedings. This speech

enjoys the highest constitutional protection because “[i]f the First Amendment has

any force, it prohibits Congress from fining or jailing citizens, or associations of

citizen, for simply engaging in political speech.” Citizens United v. F.E.C, 558

U.S. 310, 349 (2010); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 606 (1976)

(Brennan, J., concurring) (“Commentary on the fact that there is strong evidence

implicating a government official in criminal activity goes to the very core of

matters of public concern”).

State laws suppressing speech concerning citizen complaints filed against

candidates for public office are content-based restrictions requiring strict scrutiny

by this Court. Lind, 30 F.3d 1115, 1118 n.1. Applying strict scrutiny to content-


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based laws “distinguish[es] those regulations that seek to advance legitimate

regulatory goals from those that seek to suppress unpopular ideas or information or

to manipulate the public debate through coercion rather than persuasion.” Jacobs

v. Clark County School Dist., 526 F.3d 419, 433 (9th Cir. 2008) (citations omitted).

The gag rule in § 2-2-136(4), MCA, suppresses speech about misconduct by

candidates for public office because it prevents complainants such as

Representative Tschida from disclosing their own ethics complaints. Defendant

Motl therefore has the burden of proving the gag rule “furthers a compelling

interest and is narrowly tailored to achieve that interest.” Citizens United, 558 U.S.

at 340. He cannot meet this burden. The Ninth Circuit has expressly rejected the

argument that a complainant’s disclosure of his or her complaint “somehow lends

the State’s imprimatur to such charges” and that a gag rule is necessary to prevent

the “[state’s] credibility from being invoked to buttress scandalous charges in the

heat of a campaign.” Lind, 30 F.3d at 1119. Any such problem “can be countered

by the truthful assertion that anyone can file a complaint with the [state], for any

reason, regardless of its merit.” Id. Because Defendant Motl “has no influence

over when or whether a complaint is filed, the fact of filing simply cannot signal

[his] approval of a complainant’s charges” Id. The solution Montana authorities

must instead pursue to dispel notions that the State approves of the allegations in a


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complaint “is more speech, not enforced silence.” Id., quoting Whitney v.

California, 274 U.S. 357, 377 (1927) (Brandeis, J. concurring).

Montana lacks a compelling interest in suppressing a complainant’s speech

about his own complaint. The gag rule in § 2-2-136(4), MCA, is therefore

unconstitutional.

B. The Gag Rule is Substantially Overbroad Because It Extends

Throughout All of the Ethics Proceedings

Statutes that are substantially overbroad and restrict wide swathes of

protected speech are subject to challenge regardless of whether the speech of the

party challenging the statute might be constitutionally proscribed by a more narrow

statute. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). When making an

overbreadth claim, a plaintiff “need not necessarily introduce admissible evidence

of overbreadth, but generally must at least describe the instances of arguable

overbreadth of the contested law.” Comite de Jornaleros de Redondo Beach v.

City of Redondo Beach, 657 F.3d 936 944 (9th Cir. 2011).

In Lind, Hawaii authorities argued that preventing complainants from

disclosing their own complaints “facilitates the [government’s] work.” Lind, 30

F.3d at 1120. The Ninth Circuit rejected this argument because “[t]he vast

majority of deliberative bodies undertake investigations with full exposure to the


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public, and with no apparent ill effects” and Hawaii authorities “offer[ed] no

reason to doubt that the situation would be any different here.” Id. at 1121.

The gag rule in § 2-2-136(4), MCA, is even more extreme than the one

struck down by the Ninth Circuit in Lind. It applies not only when Defendant Motl

is investigating a complaint but also throughout all of the proceedings. Discovery,

pre-trial motions, and direct and cross-examination of witnesses during hearings

are all shrouded in secrecy until Defendant Motl issues a decision. § 2-2-136(4),

MCA.

England abolished the Star Chamber in 1641. In re Oliver, 333 U.S. 257,

266 (1948). The Framers weren’t big on it, either, which is why they included the

Public Trial Clause in the Sixth Amendment:

The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.

Estes v. Texas, 381 U.S. 532, 538-39 (1965), quoting In re Oliver, 333 U.S. at 268-

70. But while the rest of the English-speaking world, and the rest of the civilized

world, for that matter, has refrained from using a star chamber for nearly 500

years, Defendant Motl and Montana authorities didn’t get the memo. The extreme

overbreadth of the gag rule in § 2-2-136(4), MCA, extending from the moment the

complaint is filed through all contested proceedings and continuing until

Defendant Motl finally renders a decision, violates the First Amendment.


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C. The Gag Rule is Substantially Overbroad Because It Applies Not Just to Employees But Also to Public Officials Seeking Re-Election

The statutory provisions governing ethics complaints, including the gag rule

in § 2-2-136(4), MCA, apply not only to a complaint filed against a state employee

but also one filed against a state officer, legislator, or county attorney. § 2-2-

136(1)(a), MCA. This creates additional, unconstitutional overbreadth. Sparing

politicians from hurt feelings is not a compelling state interest because “the First

Amendment requires that politicians tolerate insulting, and even outrageous,

speech in order to provide adequate breathing space to the freedoms protected by

the First Amendment.” Boos v. Barry, 485 U.S. 312, 322 (1988); Lind, 30 F.3d at

1120 (candidates “must be prepared to endure a heightened level of criticism –

including charges of campaign spending improprieties – precisely in order to

promote First Amendment values.”).

Whatever interests the state may have in shielding a low-level state

employee from disclosure of an ethics complaint filed against him or her are not

impacted by complaints naming elected officials and Cabinet officers as

respondents. This substantial overbreadth is yet another reason for invalidating the

gag rule in § 2-2-136(4), MCA.


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D. The Gag Rule is Fatally Underinclusive Because It Does Not Apply to Respondents or Witnesses

The Supreme Court has long held that a speech prohibition violates the First

Amendment if it is substantially underinclusive, which necessarily involves

government favoring certain speakers or ideas over others:

While surprising at first glance, the notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles. Thus, an exemption from an otherwise permissible regulation of speech may represent a governmental attempt to give one side of a debatable public question an advantage in expressing its views to the people. Alternatively, through the combined operation of a general speech restriction and its exemptions, the government might seek to select the permissible subjects for public debate and thereby to control the search for political truth.

City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (citations omitted).

Underinclusiveness renders a speech restriction suspect because “a law

cannot be regarded as protecting an interest of the highest order, and thus as

justifying a restriction upon truthful speech, when it leaves appreciable damage to

that supposedly vital interest unprohibited.” Reed v. Town of Gilbert, 135 S.Ct.

2218, 2232 (2015) quoting Republican Party of Minnesota v. White, 536 U.S. 765,

780 (2002). Underinclusiveness thereby “diminish[es] the credibility of the

government’s rationale for restricting speech.” City of Ladue, 512 U.S. at 52;

Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729, 2740 (2011)

(“[u]nderinclusiveness raises serious doubts about whether the government is in

fact pursuing the interest it invokes, rather than disfavoring a particular speaker or


17

viewpoint”). The Supreme Court has invalidated numerous statutes based solely

upon underinclusiveness. See, e.g., Reed, 135 S.Ct. at 2231-32 (ordinance that was

purportedly enacted to enhance aesthetics and safety by restricting signs providing

directions to churches was “hopelessly underinclusive” because it exempted signs

conveying ideological messages); Brown, 131 S.Ct. at 2740 (statute prohibiting

sale of violent video games to minors in order to protect them from harm was

unconstitutionally underinclusive because it did not apply to books, cartoons, and

movies depicting violence).

As with the speech restrictions cited above, the gag rule in § 2-2-136(4),

MCA, is grossly underinclusive because respondents can waive confidentiality at

anytime and, when they do so, “the complaint and any related documents must be

open for public inspection.” § 2-2-136(4), MCA. Defendant Motl can make no

credible claim that his ability to properly investigate complaints and conduct

hearings necessitates gagging complainants when respondents can disclose

documents and open the proceedings whenever they choose.

Indeed, the gag rule in § 2-2-136(4), MCA, looks very much like an

incumbent protection act. The respondents in ethics proceedings are, in many

cases, public officials seeking re-election. The gag rule thus shields incumbents,

such as Governor Bullock, who face credible allegations of unethical conduct.

Additional underinclusiveness exists because the gag rule does not apply to


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witnesses or other non-parties. Witnesses who are interviewed by Defendant Motl,

deposed by one of the parties, or called to testify in a hearing are free to divulge

anything they hear or say in such proceedings.

All of this underinclusiveness “raises serious doubts about whether

[Defendant Motl] is in fact pursuing the interest [he] invokes, rather than

disfavoring a particular speaker or viewpoint.” Brown, 131 S. Ct. at 2740. The

gag rule must be struck for this reason as well.

II. THE GAG RULE VIOLATES THE FIRST AMENDMENT AS APPLIED

TO REPRESENTATIVE TSCHIDA’S SPEECH WITH FELLOW LEGISLATORS CONCERNING GOVERNOR BULLOCK’S MISUSE OF STATE RESOURCES

Not only is the gag rule in § 2-2-136(4), MCA, unconstitutional on its face

as shown in Part I of this brief, it is also unconstitutional as applied to

Representative Tschida’s letter. Section 2-2-136(1)(a), MCA, states that “the

commissioner does not have jurisdiction for a complaint concerning a legislator if

a legislative act is involved in the complaint.” (emphasis added). “Legislative

actions” include “actions of the legislature authorized by Article V of The

Constitution of the State of Montana.” § 2-9-111(c)(i)(b), MCA. Included in

Article V of the Montana Constitution is the Legislature’s authority to “establish a

legislative council and other interim committees.” MONT. CONST. Art. V, § 10(4).

Section 2-2-136(1)(a), MCA, divests Defendant Motl of any jurisdiction to


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adjudicate a complaint against Representative Tschida for transmitting his letter to

other legislators. Senator Dee Brown and Senator Bob Keenan sent a letter on

October 24 to Representative Tschida and other legislators to obtain support for

convening a special committee to investigate allegations by state employees of

misuse of state funds by Governor Bullock as well as retaliation against employees

for blowing the whistle on this corruption. Tschida Declaration, ¶¶ 14-15.

Representative Tschida responded to the letter with his own letter confirming his

support for a special committee. Id., ¶ 16. He included additional evidence of

misconduct by Governor Bullock, such as his illegal use of a state-paid attorney to

defend him against the ethical complaint. Id., ¶ 17.

Evidence of Governor Bullock’s illegal use of a state attorney to defend

himself against ethics charges is directly relevant to the proposed special

committee. Representative Tschida would not have been able to disclose evidence

of Bullock’s misconduct in the ethics proceeding without also disclosing the

existence of the ethics proceeding itself. His letter therefore falls squarely within

the exception to § 2-2-136, MCA, for “legislative acts” performed by a legislator.

III. THE STATEMENTS BY REPRESENTATIVE TSCHIDA ARE

PROTECTED BY THE SPEECH AND DEBATE PROVISION OF THE MONTANA CONSTITUTION

Article V, § 8 of the Montana Constitution states:


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A member of the legislature is privileged from arrest during attendance at sessions of the legislature and in going to and returning therefrom, unless apprehended in the commission of a felony or a breach of the peace. He shall not be questioned in any other place for any speech or debate in the legislature.

(emphasis added.) Because Montana’s Speech and Debate Clause is derived from

an analogous provision in the United States Constitution, the Montana Supreme

Court looks to federal law for guidance when interpreting it. Cooper v. Glaser,

2010 MT 55, ¶¶ 10-11, 228 P.3d 443, 355 Mont. 342.

The United States Supreme Court describes the Speech and Debate Clause

as being “designed to assure a co-equal branch of the government wide freedom of

speech, debate, and deliberation without intimidation or threats from the Executive

Branch. It thus protects Members against prosecutions that directly impinge upon

or threaten the legislative process.” Gravel v. United States, 408 U.S. 606, 616

(1972). The Montana Supreme Court has made a similar observation:

Because, historically, the British Crown used criminal and civil law to suppress and intimidate critical legislators, the Framers of the Constitution believed that giving immunity to legislators was essential to protect them from intimidation from outside pressures, to reinforce the separation of powers, and to ensure the independence of the legislature.

Cooper, ¶ 11.

The Speech and Debate Clause preempts statutory confidentiality

provisions. See, e.g., Gravel, 408 U.S. at 616 (Speech and Debate Clause

immunized senator’s disclosure in Senate sub-committee of classified documents


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that exposed government’s false statements to the public about the Vietnam

conflict). And it applies not only to speeches made by members during floor

debates and committee hearings, but also to written correspondence between

members concerning matters that are inherently legislative in nature. See, e.g., Ray

v. Proxmire, 581 F.2d 998, 1000 (D.C. Cir. 1978).

Protection under the Speech and Debate Clause for written correspondence

between legislators is particularly important for Montana legislators because unlike

Congress, which is in session throughout the year, the Montana Legislature

convenes in regular session for only 90 days every two years. MONT. CONST., Art.

V, § 6. During the rest of the two-year legislative cycle, there are no opportunities

for floor debates and only a small number of interim committee sessions. Thus,

aside from the 90 days in which the Montana Legislature is in regular session, most

communications among legislators concerning legislative matters occur via letters

or emails. Communications by legislators made for purposes of establishing a

special committee outside of the regular session -- something the Montana

Constitution expressly authorizes legislators to do, MONT. CONST., Art. V, § 10(4)

-- are entitled to the same protection under the Speech and Debate Clause as

communications occurring during committee sessions themselves.

Representative Tschida and other legislators exchanged letters for the

purpose of planning the establishment of a special committee of the Legislature to


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investigate misuse of state resources by Governor Bullock. Governor Bullock’s

hand-picked Commissioner of Political Practices responded by seeking to

criminalize Representative Tschida’s communications with his colleagues. He

then sent an email to over 90 legislators “reminding” them of the gag rule. Exhibit

5. This is exactly the kind of executive branch intimidation and harassment that

the Speech and Debate Clause was intended to prevent. Defendant Motl should be

enjoined from penalizing Representative Tschida for his legislative

communications.

IV REPRESENTATIVE TSCHIDA SATISFIES EACH OF THE FOUR REQUIREMENTS FOR INJUNCTIVE RELIEF

To obtain injunctive relief, a plaintiff must show (1) a likelihood of success

on the merits, (2) a likelihood of irreparable harm if injunctive relief is not granted,

(3) the balance of equities tips in his or her favor, and (4) an injunction is in the

public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374

(2008). As shown below, Representative Tschida can satisfy each of these

requirements.


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A Representative Tschida is Likely to Succeed on the Merits

Representative Tschida has previously demonstrated that the gag rule in § 2-

2-136, MCA violates the First Amendment both as applied and on its face.9 He is

therefore likely to succeed on the merits.

At the very least, Representative Tschida has satisfied the alternate “sliding

scale” approach applied by the Ninth Circuit to preliminary injunction motions.

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

Under this rule, Representative Tschida is entitled to injunctive relief because he

has raised “serious questions going to the merits” along with showing (as described

below) that the balance of the hardships tips sharply in his favor and that the other

two Winter factors favor him. Id. at 1135.

B. Representative Tschida Will Suffer Irreparable Harm if

Relief is not Granted

Ongoing or future constitutional violations by a defendant satisfy the

irreparable harm requirement because “unlike monetary injuries, constitutional

violations cannot be adequately remedied through damages.” Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009); Monterey Mechanical Co v. Wilson,

125 F.3d 702, 715 (9th Cir. 1997) (“an alleged constitutional infringement will

often alone constitute irreparable harm”). Moreover, “[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably

9 See pages 11-22, supra.


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constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-74 (1976).

Such “harm is particularly irreparable where, as here, a plaintiff seeks to engage in

political speech, as timing is of the essence in politics and delay of even a day or

two may be intolerable.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1128

(9th Cir. 2011).

As stated previously, the gag rule in § 2-2-136, MCA, violates Rep.

Tschida’s rights under the First Amendment.10 This deprivation will continue until

this Court grants relief, relief that cannot be achieved with monetary damages.

This factor thus weighs in favor of granting injunctive relief.

C The Balance of Equities Tips Sharply in Representative Tschida Favor

In the Ninth Circuit, “the fact that a case raises serious First Amendment

questions compels a finding that . . . the balance of hardships tips sharply in [the

plaintiffs’ favor.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973

(9th Cir. 2002). If Representative Tschida is denied injunctive relief, his First

Amendment rights will continue being violated. On the other hand, there is no

detriment to the State from enjoining an unconstitutional law. Sanders County

Republican Cent. Comm. v. Bullock, 698 F.3d 741, 749 (9th Cir. 2012). This

factor sharply tips in his favor.

10 See pages 11-22, supra.


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D. Enjoining the Statute is in the Public Interest First Amendment rights are ones that, if protected, will unquestionably

advance the public interest. Thalheimer, 645 F.3d at 1129 (“Courts considering

requests for preliminary injunctions have consistently recognized the significant

public interest in upholding First Amendment principles.”); Joelner v. Washington

Park, 378 F.3d 613, 620 (7th Cir. 2004) (“it is always in the public interest to

protect First Amendment liberties”). Additionally, the public interest is furthered

by not having executive branch officials intimidating and threating legislators for

engaging in protected speech with other legislators. This factor therefore favors

granting injunctive relief as well.

CONCLUSION

For all of the foregoing reasons, Representative Brad Tschida respectfully

requests that this Court grant at its earliest convenience his Application for a

Temporary Restraining Order prohibiting Defendant Motl from enforcing the gag

rule in § 2-2-136, MCA. Representative Tschida also requests the Court issue an

order to show cause as to why a preliminary injunction should not issue.

DATED: November 7, 2016 Respectfully submitted,

/s/ Matthew G. Monforton Matthew G. Monforton Attorney for Plaintiff


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CERTIFICATE OF COMPLIANCE PURSUANT TO L. R. 7.1(d)(2)(E)

I hereby certify that this document, excluding caption, tables and certificate

of compliance, contains 5395 words, as determined by the word processing

software used to prepare this document, specifically Microsoft Word 2007.




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CERTIFICATE OF SERVICE

I HEREBY CERTIFY this 7th day of November, 2016, that a copy of the foregoing will be delivered this day to the following via email: JONATHAN MOTL 1205 8th Ave P.O. Box 202401 Helena, MT 59620 (406) 444-2942 [email protected] TIMOTHY FOX Montana Attorney General DALE SCHOWENGERDT Montana Solicitor General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401 (406) 444-2026 [email protected]




matthew g. monforton (montana bar # 5245) monforton law … · 2016-11-08 · matthew g. monforton...

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