BRAD TSCHIDA, Plaintiff-Appellant, v. JONATHAN MOTL, in his personal capacity; JEFF MANGAN, in his official capacity as the Commissioner of Political Practices, Defendants-Appellees.
No. 18-35115
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 29, 2019
D.C. No. 6:16-cv-00102-BMM. OPINION. 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. Before: William A. Fletcher and Jay S. Bybee, Circuit Judges, and Larry A.
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
The district court held that the challenged confidentiality requirement of
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
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. 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
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
Tschida brought suit in federal district court under
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
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
There is nothing in
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
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.
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.
[] 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. . . . ;
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.
On summary judgment, the district court held that the challenged confidentiality requirement of
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
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)).
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
The speech at issue here is very similar to the speech in Lind, where a Hawaiʻi statute required that complaints to Hawaiʻi‘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 of the speech it restricts or to the direct effect of that speech on listeners.” Id. at 1117. Hawaiʻi 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 Hawaiʻi statute] regulates speech on the basis of its content.” Id. at 1118. The confidentiality provision of the Hawaiʻi statute swept more broadly and lasted longer than the challenged confidentiality provision of Montana‘s
We therefore conclude that strict scrutiny applies to the challenged confidentiality provision of
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
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 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
The challenged confidentiality requirement of
The confidentiality provision of
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.
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 Hawaiʻi provision at issue in Lind swept far more broadly than the confidentiality provision of Montana‘s
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
AFFIRMED IN PART and REVERSED IN PART. Each party shall bear its own costs.