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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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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
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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
Case 6:16-cv-00102 Document 3 Filed 11/07/16 Page 6 of 32
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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
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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.
DATED: November 7, 2016 Respectfully submitted,
/s/ Matthew G. Monforton Matthew G. Monforton Attorney for Plaintiff
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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]
DATED: November 7, 2016 Respectfully submitted,
/s/ Matthew G. Monforton Matthew G. Monforton Attorney for Plaintiff
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