MT Ethics Chief Ducks Bulk of Lawmaker’s Suit

HELENA, Mont. (CN) – A federal judge on Tuesday tossed the bulk of a lawsuit filed by a Montana lawmaker against the state’s political-practices commissioner, but will entertain whether a confidentiality requirement chills the lawmaker’s free-speech rights.

U.S. District Judge Brian Morris set a May 11 pretrial conference in state Rep. Brad Tschida’s case against Commissioner Jonathan Motl.

Tschida says Motl infringed his right to free speech by threatening him with fines of up to $1,000 and possible criminal penalties for each time Tschida talks about an ethics complaint he filed with Motl’s office against Gov. Steve Bullock. Under Montana state law, that information is confidential until the commissioner either dismisses the complaint or takes action on it.

Morris noted in his ruling that Motl never represented that he could, or would, prosecute Tschida for official misconduct. Instead, he only responded to a question saying that Tschida “could” be prosecuted for official misconduct for the intentional disclosure of the existence of the ethics complaint, and the high end of a potential fine.

Motl never pursued any penalties or prosecution of Tschida.

“The court may question Motl’s judgment in commenting about the potential consequences of Tschida’s disclosure of his ethics complaint given the circumstances of a high-profile election season and his significant position as commissioner of political practices,” Morris wrote. “Officials enjoy ‘breathing room,’ however, to make ‘reasonable but mistaken judgments.’ Motl’s discussion regarding the potential consequences of official misconduct falls within the realm of correct and reasonable, but potentially mistaken judgments.”

Motl is therefore entitled to qualified immunity, Morris added.

On Wednesday, Motl said Morris’ reasoning was consistent with what he heard in court, and that it was a good decision for Montanans and for Montana politics. He also looks forward to the legal challenge of Montana’s requirement of nondisclosure of ethics complaints until they’ve undergone a formal review by the commissioner’s office

“That statute has been on the books for quite a while and hasn’t been challenged,” Motl said. “There’s a balancing act the court will have to weigh, and they’ll want evidence.”

The statute in question notes that “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 commission until the commissioner issues a decision.”

Montana lawmakers instituted the confidentiality clause in 1995 in part to limit false allegations in the political process.

Morris noted that under Montana law, “Tschida lacked a clearly established constitutional right to speak about the existence of his ethics complaint. The statute calls for confidentiality. The confidentiality provision has never been challenged or ruled unconstitutional.”

Tschida’s lawsuit is part of a long-standing battle among the state’s Republican lawmakers, Democratic Gov. Steve Bullock, and Motl, an attorney appointed by Bullock to police political campaigns and recommend sanctions for those who run afoul of state laws. The ethics complaint against Bullock came in the midst of his re-election battle, which he won in November.

Tschida, a Republican, provided fellow legislators with a copy of the ethics complaint after Motl didn’t make a decision on it for two months after it was filed.

In the ethics complaint, Tschida 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 formerly ran the state Department of Commerce. While at the concert, they sat in a box with University of Montana President Royce Engstrom.

In his lawsuit, Tschida claims that the use of the state-owned aircraft, as well as the 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.

The day after the election, Motl told Morris that he had not filed, and did not intend to file, a complaint with a county attorney regarding Tschida’s disclosure of the complaint.

Neither Tschida nor his attorney, Matthew Monforton, could be reached for comment on Wednesday.

 

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