(CN) – The Ninth Circuit on Friday reviewed a Montana law prohibiting public disclosure of ethics complaints filed against government officials until after they have been decided, inserting itself into the middle of a caustic political rivalry between a Montana House Republican and the state’s Democratic governor.
The dispute began in November 2016, when Montana’s then-political practices commissioner Jonathan Motl threatened Republican Representative Brad Tschida with civil and criminal penalties for disclosing to fellow legislators a copy of an ethics complaint Tschida had filed against Montana Governor Steve Bullock and Bullock’s Director of Commerce Meg O’Leary.
The complaint accused Bullock and O’Leary of using a state-owned airplane to fly to Missoula for a Paul McCartney concert in August 2014. Later, Tschida accused Bullock of misusing state resources by relying on government attorneys to defend him against the complaint.
Motl, Tschida claims, delayed ruling on the complaint so its allegations wouldn’t be made public until after Bullock had been reelected. So Tschida emailed a copy of it to other state legislators just one week before the November 2016 election as “part of a larger discussion” to investigate Bullock’s misuse of state resources, according to Tschida’s appeals brief.
In retaliation for what he termed a “last-minute political press hit,” Motl threatened Tschida in the media with civil fines and criminal prosecution.
Although Motl didn’t make good on the threats, he didn’t rescind them, either, prompting Tschida to sue in November 2016 for a court order striking down Montana’s ethics-disclosure law on the grounds it violates First Amendment speech rights.
In his appeals brief, Tschida says he plans to file additional ethics complaints against Bullock Administration officials and publicly disclose them, but he can’t do so as long as the law is still on the books.
According to court documents, Motl dismissed Tschida’s complaint against Bullock and O’Leary as frivolous two weeks after Bullock won reelection.
On Friday in Seattle, U.S. Circuit Judge William Fletcher suggested he believed a lower court ruling partially in Motl’s favor was wrong.
In April 2017, U.S. District Judge Brian Morris found Montana’s ethics-disclosure law is unconstitutional when it applies to elected officials, but not when it applies to unelected state employees.
Morris made his decision by reviewing the law under different standards for elected and non-elected officials.
Finding the statute constitutes a content-based speech restriction when it applies to elected officials, Morris applied strict scrutiny to rule it unconstitutional in the Bullock dispute.
But Morris ruled the statute isn’t content-based as to non-elected employees because it fulfills the “compelling state interest” of protecting employee privacy. He therefore applied intermediate scrutiny to find the statute constitutional with regards to O’Leary.
“It does seem to me content-based,” Fletcher, a Clinton appointee, said of the statute’s application to O’Leary. “But a very well-respected district judge thought with respect to Ms. O’Leary that it was not content-based. I’m not going to call that district judge clearly incompetent.”
U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, chimed in. Bybee said for Tschida’s lawyer, Matthew Monfortan, to prevail both on arguments the statute is unconstitutional and that Motl wasn’t entitled to qualified immunity, he had to show Motl knew the statute was “obviously unconstitutional” but threatened Tschida anyway.
Both Bybee and Fletcher rejected outright Monforton’s argument Motl knew the law was unconstitutional based on Stilp v. Contino, in which the Third Circuit in 2010 found a similar law unconstitutional.
“That’s news to me,” Fletcher and Bybee said in rapid succession of each other.
“As a premise, it’s just simply wrong, because otherwise we are bound by that,” Bybee added.
Monforton countered a “reasonable government official, especially a government official who’s an attorney, who’s a prosecutor,” like Motl, “should know that.”
Montana Assistant Attorney General Stuart Segrest insisted the statute is constitutional across the board. And he said Morris had correctly applied intermediate scrutiny to O’Leary.
“Cases…that have addressed speech in the First Amendment context have continuously distinguished between public actors and private actors,” Segrest said.
Fletcher replied he was “quite willing to give you the proposition that convinced the district court that line employees are really differently situated…and should be protected from various forms of intrusion.”
But he also noted the statute prohibits only the disclosure of the complaint itself; it doesn’t prohibit a person from disclosing they filed a complaint or the allegations in it.
“Where is the compelling state interest in protecting the employee from that very small little additional thing?” Fletcher asked, again throwing into question how the panel will rule.
U.S. District Judge Larry Burns, sitting by designation from the Southern District of California, joined Bybee and Fletcher on the panel.