Tschida v. Motl, No. 18-35115 (9th Cir. 2019)
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Montana State Representative Brad Tschida filed suit under 42 U.S.C. 1983 against the Commissioner of Montana's Commission of Political Practices (COPP), alleging that Mont. Code Ann. 2-2-136(4) violates the First Amendment. Section 2-2-136(4) prohibits public disclosure of an ethics complaint lodged with the COPP until the COPP decides either of two things.
The Ninth Circuit held that the confidentiality provision of the Montana Code of Ethics is not narrowly tailored to serve a compelling state interest. Therefore, it does not survive strict scrutiny and is facially unconstitutional. The panel reversed the district court's decision that the law was constitutional as applied to unelected public officials. However, the panel held that it was not unreasonable for the Commissioner to rely on the constitutionality of Montana's duly enacted confidentiality statute, given the differences between Montana law and the law at issue in Lind v. Grimmer, 30 F.3d 1115, 1118 (9th Cir. 1994). Accordingly, the panel held that the Commissioner was entitled to qualified immunity and affirmed the judgment in his favor.
Court Description: The panel reversed the district court’s summary judgment in favor of defendant Montana state officials and affirmed the district court’s summary judgment granting qualified immunity to Montana’s former Commissioner of Political Practices in an action brought by Montana State Representative Brad Tschida challenging, on First Amendment grounds, a Montana law which prohibits public disclosure of an ethics complaint lodged with Montana’s Commission of Political Practices until the Commission decides either: (1) to dismiss the complaint as frivolous, failing to state a potential violation, or lacking in sufficient allegations, or (2) to allow the complaint to proceed to hearing. See Mont. Code Ann. § 2-2-136(4). The district court held that the challenged confidentiality requirement of § 2-2-136(4), prohibiting a complainant from revealing his ethics complaint during the confidentiality period, violated the First Amendment as to Governor Bullock and other elected officials in Montana. The court enjoined its enforcement as to such officials. The court held that the requirement did not violate the First Amendment as to Director of the Department of Commerce and other unelected officials in Montana. The court refused to enjoin its enforcement as to these officials. Finally, the district court refused, based on qualified immunity, to award damages against former Commissioner Jonathan Motl. TSCHIDA V. MOTL 3 The panel reversed the district court’s decision that the law was constitutional as applied to unelected public officials. Applying strict scrutiny, the panel held that that Montana Code Annotated § 2-2-136(4) facially violates the First Amendment. The panel held that although the protection of certain kinds of personal information about unelected public employees was a compelling interest, the confidentiality provision of § 2-2-136(4) was not narrowly tailored to serve that interest. The panel affirmed the district court’s judgment in favor of former Commissioner Motl on the basis that he was entitled to qualified immunity. The panel held that under the circumstances, it was not unreasonable for Commissioner Motl to rely on the constitutionality of Montana’s duly enacted confidentiality statute.
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