Brad Tschida v. Jonathan Motl , 924 F.3d 1297 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRAD TSCHIDA, No. 18-35115
Plaintiff-Appellant,
D.C. No.
v. 6:16-cv-00102-
BMM
JONATHAN MOTL, in his personal
capacity; JEFF MANGAN, in his
official capacity as the OPINION
Commissioner of Political Practices,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted December 7, 2018
Seattle, Washington
Filed May 29, 2019
Before: William A. Fletcher and Jay S. Bybee, Circuit
Judges, and Larry A. Burns,* Chief District Judge.
Opinion by Judge W. Fletcher
*
The Honorable Larry A. Burns, Chief United States District Judge
for the Southern District of California, sitting by designation.
2 TSCHIDA V. MOTL
SUMMARY**
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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.
COUNSEL
Matthew G. Monforton (argued), Monforton Law Offices
PLLC, Bozeman, Montana, for Plaintiff-Appellant.
J. Stuart Segrest (argued), Assistant Attorney General; Dale
Schowengerdt, Solicitor General; Timothy C. Fox, Montana
Attorney General; Office of the Attorney General, Helena,
Montana; Andres Haladay (argued), Drake Law Firm PC,
Helena, Montana; for Defendants-Appellees.
Joseph Terran Hause (argued) and Cheannie Kha, Certified
Law Students; Eugene Volokh, Supervising Attorney; Scott
& Cyan Banister First Amendment Clinic, UCLA School of
Law, Los Angeles, California; for Amici Curiae Marion B.
4 TSCHIDA V. MOTL
Brechner First Amendment Project and Pennsylvania Center
for the First Amendment.
OPINION
W. FLETCHER, Circuit Judge:
Montana law prohibits public disclosure of an ethics
complaint lodged with Montana’s Commission of Political
Practices (“COPP”) until the COPP 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. Once the COPP reaches
a decision, the prohibition against public disclosure of the
complaint is lifted. See Mont. Code Ann. § 2-2-136(4).
Montana State Representative Brad Tschida lodged an
ethics complaint against the Governor and an unelected
official, the Director of the Department of Commerce.
Before the COPP decided whether to dismiss the complaint
or allow it to proceed to hearing, Tschida publicly revealed
his complaint in violation of § 2-2-136(4). Jonathan Motl,
then the Commissioner of the COPP, publicly threatened
Tschida with criminal prosecution. The COPP later
dismissed Tschida’s ethics complaint for failure to state a
claim and as frivolous.
Tschida brought suit in federal district court under
42 U.S.C. § 1983 against Jeff Mangan, the current
Commissioner of the COPP, and Jonathan Motl, the former
Commissioner, contending that § 2-2-136(4) violates the First
Amendment. Tschida sought injunctive relief against
Commissioner Mangan and damages against former
TSCHIDA V. MOTL 5
Commissioner Motl. The district court held unconstitutional
the challenged confidentiality provision of § 2-2-136(4) as to
the Governor and enjoined its enforcement as to elected
officials. The court held the provision constitutional as to
unelected officials in Montana, including the Director of the
Department of Commerce, and refused to enjoin its
enforcement as to such officials. The court dismissed the
damages claim against former Commissioner Motl based on
qualified immunity.
Representative Tschida timely appealed. Commissioner
Mangan did not appeal. For the reasons that follow, we
reverse in part and affirm in part.
I. Background
As relevant to this case, the Montana Code of Ethics
applies to Montana legislators, officers, and employees of
state government.1 See Mont. Code Ann. § 2-2-103(4)(i).
Enforcement is governed by § 2-2-136. Any person may
submit an ethics complaint to the Commissioner of Political
Practices alleging that a state legislator, officer, or employee
has violated or is violating the ethics code. See § 2-2-136(1).
Section 2-2-136(4), the confidentiality provision at issue,
provides in relevant part:
1
We have been informed by a letter from the State Attorney General
that the Montana Code of Ethics has been amended, with an effective date
of October 1, 2019, so that it imposes a confidentiality obligation only
with respect to public employees and unelected public officers. While the
amendment may affect future cases, it does not affect the appeal now
before us.
6 TSCHIDA V. MOTL
Except for records made public in the course
of a hearing held under subsection (1) and
records that are open for public inspection
pursuant to Montana law, a complaint and
records obtained or prepared by the
commissioner in connection with an
investigation or complaint are confidential
documents and are not open for public
inspection. The complainant and the person
who is the subject of the complaint shall
maintain the confidentiality of the complaint
and any related documents released to the
parties by the commissioner until the
commissioner issues a decision.
(Emphasis added.) A “decision” within the meaning of § 2-2-
136(4) is the Commissioner’s decision to dismiss a complaint
or to accept it for filing. § 2-2-136(1)(b)–(c). “In practice, a
dismissal or an acceptance of a complaint is made at a single
point in time.” Tschida v. Bullock and O’Leary, No. COPP
1016-ETH-005 at 9 n.18 (Nov. 21, 2016). As soon as the
decision is made whether to dismiss a complaint or to accept
it for filing, the confidentiality requirement of § 2-2-136(4) is
lifted.
There is nothing in § 2-2-136(4) that forbids a
complainant from revealing during the confidentiality period
the factual (or allegedly factual) information that is contained
in the ethics complaint. Nor is there anything in § 2-2-136(4)
that forbids a complainant from revealing during the
confidentiality period that he or she has submitted a
complaint to the Commissioner. The only thing forbidden to
a complainant during the confidentiality period is revealing
TSCHIDA V. MOTL 7
the complaint itself and any “related documents released to
the parties by the commissioner.”
On September 9, 2016, Montana State Representative
Brad Tschida signed an ethics complaint alleging that
Governor Steve Bullock had improperly bestowed a gift on
Director of the Department of Commerce Meg O’Leary by
allowing her to accompany him on a state-paid flight to
Missoula to attend a concert at the invitation of the President
of the University of Montana. It also alleged that Governor
Bullock had improperly used Democratic Governors
Association funds to pay Director O’Leary’s travel and
lodging expenses when they traveled together to Puerto Rico.
The next day, a spokesman for Governor Bullock denied that
the Governor had ever been to Puerto Rico. Nine days later,
on September 19, Representative Tschida submitted the
complaint to the Commissioner. That same day
Commissioner Motl sent a letter to Representative Tschida
asking for information that would support the allegation that
Governor Bullock and Director O’Leary had traveled together
to Puerto Rico. On September 21, Representative Tschida
submitted an amended complaint containing three counts, all
related to the concert. The amended complaint omitted the
earlier allegations concerning travel to Puerto Rico.
However, documents attached to the complaint alleged that
a trip to Puerto Rico had occurred. That same day,
Commissioner Motl sent a letter to Representative Tschida
acknowledging receipt of the amended complaint.
In both of his letters, Commissioner Motl warned
Representative Tschida, in almost identical wording, of the
confidentiality requirement of § 2-2-136(4). He wrote in his
September 21 letter:
8 TSCHIDA V. MOTL
I ask that you continue to note that this Office,
as well as the Complainant and Respondents,
is required to keep the COPP action on an
ethics proceeding confidential so long as the
Matter remains within the agency, as directed
by § 2-2-136(4), MCA. That means the
Complaint, as well as documents like this
letter will not appear on the Commissioner’s
website or be available for public inspection
unless some later action opens the documents
to the public.
On November 2, six days before a general election in
which Governor Bullock was a candidate, Representative
Tschida disclosed his amended ethics complaint to members
of the Montana House of Representatives in an attachment to
an email. He also attached to the email a cover letter
accusing the Commissioner of purposely delaying a decision
on his complaint.
On November 3, during a radio interview, Commissioner
Motl answered questions about Representative Tschida’s
disclosure of the complaint. He said, “Mr. Tschida, as a
sitting legislator, chose to violate a specific section of [a]
state statute and he did it in the last days of a campaign,
which I think magnifies the seriousness of what he did.”
Commissioner Motl said violation of the confidentiality
requirement was “official misconduct.” The interviewer
asked whether this would give rise to a civil claim.
Commissioner Motl responded, “No. It’s criminal court.” No
criminal charge was ever brought against Representative
Tschida.
TSCHIDA V. MOTL 9
Commissioner Motl dismissed Representative Tschida’s
ethics complaint on November 21, 2016. He dismissed the
first two counts as barred by the statute of limitations, he
dismissed all three counts for failure to allege claims, and he
also dismissed all three counts as frivolous. Representative
Tschida did not appeal the dismissal of his ethics complaint.
Commissioner Motl later explained in an affidavit the
delay in issuing the dismissal. He wrote:
[] I received a response from Governor
Bullock refuting the Puerto Rico allegations
around 5 pm on September 28, 2016.
[] The month before an election is the
busiest time for the COPP. The COPP had
declared its commitment to resolving
campaign finance complaints in “real time,”
that is before the date of the election.
[] Between September 29, 2016 and
election day (November 8, 2016), the COPP
was focused on addressing campaign finance
complaints, so that the allegations made in the
campaign complaints, which are public, could
be addressed by the election. During this time
period:
a. The COPP issued 14 campaign finance
decisions, all responding to complaints filed
between September 27 and October 28, 2016.
...;
10 TSCHIDA V. MOTL
b. The COPP issued one advisory opinion
concerning a state contractor’s political rights
...;
c. The COPP prepared for and held a full
day ethics hearing (on October 21, 2016) on a
pending ethics complaint. . . . This ethics
hearing had been scheduled months in
advance;
d. The COPP engaged in extensive
motion and argument in state district court
regarding a request for [a] stay on a campaign
finance judgment . . . ;
e. The COPP resolved 7 campaign
practice sufficiency decisions through
settlement;
[f.] All COPP office staff, in particular
the Commissioner, responded to daily
campaign-related concerns or questions from
candidates, the press and the public.
On November 4, Representative Tschida filed a complaint
in federal district court against Commissioner Motl, alleging
that the prohibition against revealing his ethics complaint
violated the First Amendment. A second amended complaint,
filed on June 16, 2017, is the operative complaint. Jeff
Mangan is now the Commissioner. Representative Tschida
sought injunctive relief against Commissioner Mangan in his
official capacity. He sought damages against former
Commissioner Motl in his personal capacity.
TSCHIDA V. MOTL 11
On summary judgment, the district court held that the
challenged confidentiality requirement of § 2-2-136(4),
prohibiting a complainant from revealing his 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 O’Leary and other unelected officials in
Montana. The court refused to enjoin its enforcement as to
these officials. Finally, the court refused, based on qualified
immunity, to award damages against former Commissioner
Motl.
Representative Tschida timely appealed to this court.
Commissioner Mangan did not appeal. Representative
Tschida’s appeal presents two questions. First, is the
challenged portion of the confidentiality requirement of § 2-
2-136(4) constitutional as to complaints against unelected
officials? Second, was the damages claim against former
Commissioner Motl properly dismissed based on qualified
immunity?
II. Standard of Review
“We review de novo a district court’s grant of summary
judgment, considering the record in the light most favorable
to the non-moving party.” King v. Cnty. of L.A., 885 F.3d
548, 556 (9th Cir. 2018) (citing Jones v. Blanas, 393 F.3d
918, 922 (9th Cir. 2004)).
12 TSCHIDA V. MOTL
III. Discussion
A. Constitutionality of Confidentiality Requirement
1. Level of Scrutiny
We begin by addressing the level of scrutiny that applies
to the challenged confidentiality requirement of § 2-2-136(4).
Whether we apply strict or intermediate scrutiny depends on
whether the law is content-based or content-neutral.
“Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed.” Reed v. Town of Gilbert,
135 S. Ct. 2218, 2227 (2015). A law may also be content
based if it requires authorities to examine the contents of the
message to see if a violation has occurred. See McCullen v.
Coakley, 573 U.S. 464, 479–80 (2014). Even a facially
content-neutral law may be considered content-based if it
“cannot be ‘justified without reference to the content of the
regulated speech,’” Reed, 135 S. Ct. at 2227 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)), or is
justified by a concern that “stem[s] from the direct
communicative impact of speech,” Lind v. Grimmer, 30 F.3d
1115, 1118 (9th Cir. 1994).
The speech at issue here is very similar to the speech in
Lind, where a Hawai‘i statute required that complaints to
Hawai‘i’s Campaign Spending Commission remain
confidential while an investigation was pending, and required
that the entire record of an investigation remain confidential
if the Commission determined after investigation that there
was no probable cause that a violation had occurred. We
wrote, “A statute regulating speech is content-neutral only if
the state can justify it without reference either to the content
TSCHIDA V. MOTL 13
of the speech it restricts or to the direct effect of that speech
on listeners.” Id. at 1117. Hawai‘i justified its confidentiality
requirement on a number of grounds, including “prevent[ing]
the Commission’s credibility from being invoked to support
‘scandalous charges,’” and “prevent[ing] candidates and their
supporters from being ‘unduly tarred by a vindictive
complaint.’” Id. at 1117–18. We wrote in Lind, “Because
these concerns . . . stem from the direct communicative
impact of speech, we conclude that [the Hawai‘i statute]
regulates speech on the basis of its content.” Id. at 1118. The
confidentiality provision of the Hawai‘i statute swept more
broadly and lasted longer than the challenged confidentiality
provision of Montana’s § 2-2-136(4), but the underlying
rationales are largely the same. See also Stilp v. Contino,
613 F.3d 405, 413 (3d Cir. 2010) (applying strict scrutiny to
Pennsylvania’s ethics confidentiality law); Kamasinski v
Judicial Review Council, 44 F.3d 106, 110 (2d Cir. 1994)
(concluding that Connecticut’s ethics confidentiality law was
content-based).
We therefore conclude that strict scrutiny applies to the
challenged confidentiality provision of § 2-2-136(4). Section
2-2-136(4) is constitutional “only if it is narrowly drawn and
is necessary to serve a compelling state interest . . . or if the
speech it regulates otherwise is undeserving of full
protection[.]” Lind, 30 F.3d at 1118.
2. Application of Strict Scrutiny
The State asserts that it has a compelling interest in
protecting the privacy of unelected employees in matters
related to their employment, including the disclosure of
“sensitive information in personnel files, such as health
records, disciplinary reports, and past illegal drug use.”
14 TSCHIDA V. MOTL
We agree that the State has a compelling interest in
protecting certain kinds of private information about
unelected officials. The Supreme Court has long “assume[d],
without deciding, that the Constitution protects a privacy
right” in certain kinds of employee information. NASA v.
Nelson, 562 U.S. 134, 138 (2011); see also Whalen v. Roe,
429 U.S. 589, 599 (1977) (acknowledging an “individual
interest in avoiding disclosure of personal matters”). Indeed,
in Nixon v. Administrator of General Services, the Supreme
Court recognized that “public officials, including the
President, are not wholly without constitutionally protected
privacy rights in matters of personal life unrelated to any acts
done by them in their public capacity.” 433 U.S. 425, 457
(1977). While it is true that state employees serve in
positions of public trust, they are still constitutionally entitled
to some level of privacy related to personal matters. If even
the President has some privacy right in personal matters, it
follows that unelected state officials and employees have
important privacy interests in certain kinds of personal
information. Unlike elected officials, who possess “no
privacy interest in freedom from accusations,” and must
endure a heightened level of criticism, unelected officials
have not injected themselves into public debate. In re
McClatchy Newspapers Inc., 288 F.3d 369, 373 (9th Cir.
2002).
We have recognized as much in a number of our own
cases. We have identified particular kinds of information that
fall within an employee’s constitutionally protected interest
in informational privacy. For example, in Doe v. Attorney
General, we recognized that “medical information was
encompassed within” the privacy interest in avoiding
“disclosure of personal matters.” 941 F.2d 780, 795 (9th Cir.
1991). Similarly, we have held that disclosure of social
TSCHIDA V. MOTL 15
security numbers “can raise serious privacy concerns”
because “an individual’s SSN serves as a unique identifier
that cannot be changed and is not generally disclosed by
individuals to the public.” In re Crawford, 194 F.3d 954, 958
(9th Cir. 1999).
Having concluded that the protection of certain kinds of
personal information about unelected public employees is a
compelling interest, we next turn to whether the
confidentiality provision of § 2-2-136(4) is narrowly tailored
to serve that interest. We conclude that it is not.
The challenged confidentiality requirement of § 2-2-
136(4) prohibits a complainant from revealing the complaint
during the confidentiality period. Section 2-2-136(4) does
not forbid a complainant from revealing factual information
contained in the ethics complaint, and it does not bar a
complainant from revealing that he or she submitted a
complaint to the Commissioner. A complainant is only
forbidden from revealing the complaint itself and any “related
documents released to the parties by the commissioner.”
Mont. Code Ann. § 2-2-136(4). And the complainant is
forbidden from revealing the complaint and other documents
only until the Commissioner makes a decision whether to
dismiss the complaint or accept it for filing. Once that
decision is made, the confidentiality requirement is lifted.
The confidentiality provision of § 2-2-136(4) is overbroad
and, at the same time, largely ineffectual in protecting
employees’ privacy interests. It is overbroad in that it
prohibits revealing an ethics complaint in its entirety,
irrespective of its content. There is no attempt in the
provision to distinguish between constitutionally protected
personal information and information that may be revealed
16 TSCHIDA V. MOTL
without violating the Constitution. It is largely ineffectual, in
that the confidentiality provision protects that private
information for a very limited time. Prior to lodging the
complaint, the complainant is free to share the draft
complaint, meaning that any private information contained in
the complaint would be available to the public. Furthermore,
while the complaint itself may not be revealed, the
confidentiality provision allows a complainant to discuss the
facts (or alleged facts) contained in the ethics complaint at
any time. This includes discussion of any private information
in the complaint.
The confidentiality provision is so weak that we have
difficulty seeing that it serves any state interest at all. Severe
underinclusiveness renders the confidentiality provision
unconstitutional. See Smith v. Daily Mail Publ’g Co.,
443 U.S. 97, 104–105 (1979) (striking down a statute that
prohibited newspapers, but not electronic media, from
publishing the names of juvenile defendants because the law
failed to advance the stated privacy interest); Williams-Yulee
v. Florida Bar, 135 S. Ct. 1656, 1668 (2015) (explaining that
underinclusiveness may “reveal that a law does not actually
advance a compelling interest”); see also Reed, 135 S. Ct. at
2231–32 (striking down an ordinance on tailoring grounds
because it was “hopelessly underinclusive”); Brown v. Entm’t
Merchs. Ass’n, 564 U.S. 786, 802 (2011) (striking down a
statute prohibiting sale of violent video games to minors
because the law was underinclusive).
In sum, the confidentiality provision of the Montana Code
of Ethics is not narrowly tailored to serve a compelling state
interest. It does not survive strict scrutiny and is facially
unconstitutional.
TSCHIDA V. MOTL 17
B. Qualified Immunity
Representative Tschida contends that the district court
improperly dismissed his damages claim against
Commissioner Motl based on qualified immunity. We have
held that “an officer who acts in reliance on a duly-enacted
statute or ordinance is ordinarily entitled to qualified
immunity.” Grossman v. City of Portland, 33 F.3d 1200,
1209 (9th Cir. 1994). Under these circumstances, liability
may attach only where (1) the statute “authorizes official
conduct which is patently violative of fundamental
constitutional principles,” or (2) the official “unlawfully
enforces an ordinance in a particularly egregious manner, or
in a manner which a reasonable officer would recognize
exceeds the bounds of the ordinance.” Id. at 1209–10.
Neither of these exceptions applies here. While we
conclude that the rationale of Lind is persuasive in holding
Montana’s confidentiality provision unconstitutional, it was
not objectively unreasonable for Commissioner Motl to
conclude that Lind was not controlling in the circumstances
of this case. The Hawai‘i provision at issue in Lind swept far
more broadly than the confidentiality provision of Montana’s
§ 2-2-136(4). The Hawai‘i provision (1) “prohibit[ed]
complainants from divulging the fact that they have filed a
complaint[,]” (2) prohibited third parties “from divulging
anything that they might lawfully learn about an
investigation[,]” and (3) required indefinite confidentiality if
the Commissioner determined that there was no probable
cause to support the alleged election violation. Lind, 30 F.3d
at 1122. Because Montana’s law was narrower (though
insufficiently narrow), it was not objectively unreasonable for
Commissioner Motl to rely on its constitutionality when he
18 TSCHIDA V. MOTL
threatened to sanction Representative Tschida for violating its
confidentiality provision.
Representative Tschida argues that it was objectively
unreasonable to threaten to sanction him for release of
information related to the governor. But even assuming
without deciding that this is so, Commissioner Motl’s
threatened sanction related to the release of the complaint
included allegations about O’Leary, an unelected state
official. Commissioner Motl could reasonably have
concluded that O’Leary’s inclusion in the ethics complaint
meant that it was protected by the confidentiality provision
even if release of information about the governor would not
be.
In sum, it was not unreasonable for Commissioner Motl
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. Accordingly, we
conclude that Commissioner Motl is entitled to qualified
immunity and affirm the judgment in his favor.
Conclusion
We hold that Montana Code Annotated § 2-2-136(4)
facially violates the First Amendment. We reverse the
district court’s decision that the law was constitutional as
applied to unelected public officials. We affirm the district
court’s decision granting Commissioner Motl qualified
immunity.
AFFIRMED IN PART and REVERSED IN PART.
Each party shall bear its own costs.