9th Circuit Rules in Favor of Missoula Legislator over COPP
The 9th U.S. Circuit Court ruled on Tuesday in a split decision that found a Missoula legislator did not violate the 1st Amendment rights of a state government official by revealing information about a complaint filed with the Commissioner of Political Practices.
Missoula legislator Brad Tschida filed an ethics complaint in 2016 against Montana Governor Steve Bullock over his improper use of the state airplane to fly him and then Commerce Director Meg O’Leary to the Paul McCartney concert in Missoula.
“I talked to a group of legislators who were going to put together a special committee to take a look at some other issues regarding the governor,” said Tschida. “I told them about the ethics complaint fully believing that I had the 1st Amendment right to talk about it before we filed it. A federal District Court judge ruled that 1st Amendment rights were violated when talking about an elected official, but not for one who was appointed. We then appealed to the 9th Circuit Court on two counts. First, that they could not separate elected officials from appointed officials because they are both employees of the government, which the 9th circuit agreed with.”
Tschida then explained further about the decision.
“Jonathan Motl, then the Political Practices Commissioner threatened criminal action against me along with (former KGVO News reporter) Jon King, we were seeking punitive damages against him, however the court denied those, stating that Motl had qualified immunity,” he said. “They awarded us an affirmative action based on the fact that an elected official is no different than an appointed official when it comes to freedom of speech and the 1st Amendment.”
In the opinion issued by the 9th Circuit Court severely criticized the confidentiality clause.
‘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. 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 was still critical regarding the Governor’s use of the state airplane for the concert trip to Missoula.
“In my estimation, the Governor abused his office by using state equipment to involve himself in personal activities,” he said. “To me, that’s just wrong and whether it has any impact on his (Bullock’s) Presidential campaign, I have no idea.”