HELENA, Mont. – A federal judge declined Friday to issue a temporary restraining order in a free speech case involving Montana Rep. Brad Tschida and the state’s political practices commissioner Jonathan Motl.
Instead, U.S. District Court Judge Brian Morris set a Dec. 9 preliminary injunction hearing so Motl can testify about his actions. Motl, the defendant, wasn’t present at Friday’s 90-minute hearing, nor was Tschida, who filed the complaint Nov. 4.
Tschida alleges his First Amendment right to free speech is being infringed by Motl, who threatened Tschida with up to $1,000 in fines and possible criminal penalties for each time he discussed filing an ethics complaint against Gov. Steve Bullock. Under Montana state law, that information is confidential until Motl either dismisses the complaint or takes action on it, and Motl previous stated he could sanction Tschida for each subsequent violation.
On Monday, Motl rejected Tschida’s complaint as frivolous and failing to state a potential violation of ethics law by Bullock.
Tschida sought the restraining order to prohibit Motl from imposing sanctions, or threatening them, if Tschida talks about his concerns with his fellow legislators, the public or the press.
“At this point, it seems the cat’s out of the bag,” Morris said, adding that he didn’t see any imminent threat to Tschida that demanded a restraining order.
On Friday, Motl’s attorney J. Stuart Segrest said Motl had planned to reject the ethics complaint, allowing Tschida to circulate his concerns without fear of retribution. Segrest added that Tschida was always free to discuss the allegations, but not to disclose he’d filed a complaint. That wasn’t what Motl initially stated, but he changed his mind after reflecting on the statute, Segrest said.
“So Mr. Motl has given them what they wanted,” Segrest said. “The violation here is the release of the complaint and that’s already happened. Just discussing it isn’t in any way prohibited.”
Segrest noted that Tschida also could have asked the commissioner to issue a statement that the complaint was filed, who it was filed against and the procedural elements. In addition, Tschida could have gone to court to ask the commissioner to release the information.
That prompted Morris to wonder aloud about the free speech issue.
“Why should a person have to go to district court to seek permission, if a person has the right to free speech?” he asked Segrest, who responded that the right can be limited for a certain period of time while the commissioner decides whether it should be kept confidential.
Matthew Monforton, who represents Tschida, said that sounded like a gag rule for his client.
“The First Amendment doesn’t require a person to request permission from the government to speak,” Monforton said. “Plus, there’s no standard for Commissioner Motl for when, if ever, he would grant permission to have the ethics complaint released. That conflicts entirely with the First Amendment.”
Monforton added that he anticipates amending the federal complaint against Motl, but declined to disclose whether or not it would include additional claims of misconduct.
The federal lawsuit is part of a long-standing battle among the state’s Republican lawmakers, Democratic Gov. Bullock, and Motl, an attorney appointed by Bullock to police political campaigns and sanction those who run afoul of Montana’s laws.
Tschida, a Republican, recently provided fellow legislators a copy of the ethics complaint in which he accuses Bullock of using a state-owned airplane to fly from Helena to Missoula to attend a Paul McCartney concert in August 2014. Bullock was accompanied on the flight by Meg O’Leary, a cabinet member who heads the state Department of Commerce. While at the concert, they sat in a box with University of Montana President Royce Engstrom, who had invited “[Bullock] and a guest to join them in the president’s box to watch Sir Paul McCartney as he performs his ‘Out There’ concert.”
In his lawsuit, Tschida claims, “The use of the state-owned aircraft by Gov. Bullock and Director O’Leary, as well as their acceptance of seating in the president’s box to attend the concert, constituted illegal gifts under Montana law that neither Bullock nor O’Leary disclosed to the public.”