Monforton v. Motl

08/11/2020

DA 20-0050
Case Number: DA 20-0050

IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 202

MATTHEW MONFORTON,

Petitioner and Appellant,

v.

JONATHAN MOTL,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-19-224AX
Honorable Rienne H. McElyea, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Matthew G. Monforton, Self-Represented, Bozeman, Montana

For Appellee:

Jaime MacNaughton, Attorney at Law, Helena, Montana

Gene R. Jarussi, Heenan & Cook, Billings, Montana

Submitted on Briefs: July 1, 2020

Decided: August 11, 2020

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Appellant Matthew Monforton (Monforton) appeals a December 17, 2019, order

from the Eighteenth Judicial District Court, Gallatin County, denying his petition for

judicial review of a final agency decision by the office of the Commissioner of Political

Practices (COPP). The COPP’s decision dismissed an ethics complaint that Monforton

had lodged against Appellee Jonathan Motl (Motl) based on statements that Motl had made

during a radio interview. We restate the dispositive issue on appeal as follows:

Was the Deputy COPP’s conclusion of law correct that there was a reasonable
interpretation for Motl’s statements other than that they were made to solicit
opposition to a candidate for public office?

¶2 We conclude that Motl’s statements did not violate § 2-2-136(4), MCA (2015), of

the Montana Code of Ethics. Accordingly, we affirm the District Court’s order denying

Monforton’s petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 19, 2016, Representative Brad Tschida (Tschida), a member of the

Montana House of Representatives from a Missoula legislative district, lodged an ethics

complaint with the COPP against Governor Steve Bullock and Meg O’Leary, the former

Director of the Montana Department of Commerce. On September 21, 2016, Tschida filed

an amended ethics complaint against Bullock and O’Leary. In the time since Tschida’s

amended complaint was filed, Tschida has admitted that one of its claims—specifically,

the complaint’s allegation that Governor Bullock accepted improper benefits from the

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Democratic Governors Association—was “more speculative in nature” and “couldn’t be

100 percent corroborated.”1

¶4 Motl held the position of COPP at the time Tschida’s ethics complaint was lodged.

In two letters dated September 19, 2016, and September 21, 2016, Motl confirmed receipt

of Tschida’s original and amended ethics complaints. In each letter, Motl expressly

reminded Tschida of Montana’s then-active confidentiality requirement for ethics

complaints under § 2-2-136(4), MCA (2015), which prohibited the public disclosure of

ethics complaints prior to a decision by the COPP to either dismiss the complaint or allow

the complaint to proceed to a hearing. Section 2-2-136(4), MCA (2015), provided:

[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.

¶5 Despite Motl’s warnings that Tschida’s complaint was subject to

§ 2-2-136(4), MCA (2015), on the evening of November 1, 2016—before Motl had

determined whether to accept or dismiss Tschida’s ethics complaint—Tschida e-mailed a

copy of his ethics complaint to other legislators in the Montana House of Representatives.

At the time Tschida disclosed the contents of his complaint, Bullock was running for

1
Tschida made this admission in an affidavit that was filed as part of his federal lawsuit against
Motl, which concerned the same series of events as here. As is permitted by Rule 202(b)(6),
M. R. Evid., this Court takes judicial notice of the opinions issued in Tschida v. Mangan,
293 F.Supp.3d 1217 (D. Mont. 2017) and the subsequent appeal in Tschida v. Motl, 924 F.3d 1297
(9th Cir. 2019).
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re-election as governor while Tschida was running for re-election to Montana’s House of

Representatives. Bullock and Tschida were members of opposing political parties.

¶6 On November 3, 2016, Motl was interviewed by KGVO, a radio station in Missoula.

Motl participated in the interview on public time while using public facilities and public

equipment, including a state office and telephone. During the interview, Motl made the

following comments:

Mr. Tschida, by releasing an ethics complaint violated a specific section of
state law to which there is no exception.
. . .

Mr. Tschida, as a sitting legislator, chose to violate a specific section of state
statute and he did it in the last days of a campaign, which I think magnifies
the seriousness of what he did.
. . .

And Mr. Tschida, in complete violation of the specific directions in state law
to which there—I just read it to your listeners—I don’t think there can be any
doubt about what that law says. Released the complaint, I would presume
for political purposes in the last days of a political campaign, and he doesn’t
have any authority to do that. His legislative status—he’s not in the session,
he’s not speaking on the floor, there’s nothing—no bill that’s pending, and
he has no special status as a citizen that gives him a right to decide which
laws he’s going to follow and laws he doesn’t. And, so I think it’s a . . . .
That’s our stance—that it’s just outrageous that he did what he did at the time
that he did it.

Later in the interview, the following exchange also occurred between Motl and the KGVO

interviewer:

Motl: [Tschida] has personal responsibility for his actions; and so he’ll
need to deal with the consequences of breaking state law.

Interviewer: And what are those consequences?

Motl: There’s uh, the main consequence that befalls an official who, um
violates a mandatory duty is official misconduct.

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 Interviewer: And that would be a charge in civil court?

Motl: No, it’s criminal court.

Interviewer: It’s a criminal court charge?

Motl: Yes.

Interviewer: And so will the—will your office be bringing a...

Motl: It is inappropriate for me to—to say what anything in particularly in
the timing that we’ve got left here. And I—I simply won’t do it. And I
wouldn’t expect anybody would consider bringing something for or against
Mr. Tschida until—

Interviewer: Until after the eighth?

Motl: Yes.

The 2016 election was held on November 8, 2016—five days after Motl’s radio interview

and seven days after Tschida forwarded his complaint regarding Bullock to other House

members. On Election Day, both Tschida and Bullock were re-elected to subsequent terms.

¶7 On November 21, 2016, Motl dismissed Tschida’s ethics complaint against

Governor Bullock and his former Director of Commerce. That same month, Tschida filed

a federal lawsuit against Motl which alleged that Montana’s confidentiality requirement

for ethics complaints, contained in § 2-2-136(4), MCA (2015), violated the

United States Constitution. See Tschida v. Mangan, 293 F.Supp.3d 1217 (D. Mont. 2017).

Jeff Mangan, who replaced Motl as Montana’s COPP in 2017, was also a defendant. In

Tschida v. Motl, 924 F.3d 1297 (9th Cir. 2019), the Ninth Circuit held that § 2-2-136(4),

MCA (2015), violated the First Amendment and was unconstitutional. However, that

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decision also granted Motl qualified immunity because it was reasonable for Motl to rely

on the constitutionality of a duly enacted statute.

¶8 Two years later, on November 2, 2018, Monforton lodged an ethics complaint with

the COPP against Motl. Motl was no longer serving as COPP at the time Monforton’s

complaint was lodged. The new COPP, Jeff Mangan, recused himself from participating

in the matter and appointed Robert Stutz, an Assistant Attorney General for the Montana

Department of Justice, to preside over the matter as Deputy COPP.

¶9 Monforton’s complaint alleged that Motl’s statements to KGVO about Tschida

constituted improper election advocacy in violation of the Montana Code of Ethics,

Rules of Conduct for Public Officers and Employees. Specifically, Monforton’s complaint

alleged Motl’s statements violated § 2-2-121(3)(a), MCA—an ethics rule which prohibits

public officers and employees from using “public time, facilities, [and] equipment” to

“solicit support for or opposition to the . . . election of a person to public office.” Both

parties agreed that Motl’s statements were offered while using public time, facilities, and

equipment. However, while Monforton’s complaint alleged that Motl’s statements to

KGVO were made “in opposition to” Tschida’s election and thereby constituted a violation

of § 2-2-121(3)(a), MCA, Motl challenged this allegation and asserted that his statements

were made for the purpose of “defending a statute on behalf of the people of Montana.”

¶10 On February 1, 2019, the Deputy COPP dismissed Monforton’s ethics complaint

for failing to state a claim for a potential violation of Montana’s Code of Ethics, citing

§ 2-2-136(1)(c), MCA (authorizing the COPP to dismiss ethics complaints that fail to state

a claim). This dismissal relied on a multi-step statutory analysis which ultimately

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determined that Motl’s statements to KGVO did not constitute statements made in

“opposition to” Tschida’s election under § 2-2-121(3)(a). In his analysis, the Deputy COPP

noted that the Montana Code of Ethics does not define the terms “support” or “oppose” as

they appear in § 2-2-121(3)(a). However, the Deputy COPP cited § 1-2-107, MCA (titled

“Applicability of definitions”), in order to properly apply the relevant definition that

appeared elsewhere in the Montana Code. See § 1-2-107, MCA (“Whenever the meaning

of a word or phrase is defined in any part of this code, such definition is applicable to the

same word or phrase wherever it occurs, except where a contrary intention plainly

appears.”). The Deputy COPP’s decision turned on the definition of “support or oppose”

as it appears in Title 13—“Elections”—of the Montana Code Annotated, citing § 13-1-

101(50)(b), MCA, which provides that:

“Support or oppose,” including any variations of the term, means . . .
otherwise referring to or depicting one or more clearly identified candidates,
political parties, or ballot issues in a manner that is susceptible of no
reasonable interpretation other than as a call for the nomination, election, or
defeat of the candidate in an election, the election or defeat of the political
party, or the passage or defeat of the ballot issue or other question submitted
to the voters in an election.

Under the plain text of § 13-1-101(50)(b), the Deputy COPP dismissed Monforton’s

complaint on the basis that Motl’s statements to KGVO did not meet the proper definition

of “oppose” because they could reasonably be interpreted as being made in defense of a

statute that was still in effect at the time of Motl’s interview—specifically,

§ 2-2-136(4), MCA (2015). In reaching this decision, the Deputy COPP made the

following conclusion of law:

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 Mr. Motl’s statements did not constitute “opposition” to Rep. Tschida’s
re-election as that term is defined in Mont. Code Ann. § 13-1-101(50)
because those statements were susceptible to multiple, reasonable
interpretations, which excludes the statements from the definition of
“opposition” pursuant to Mont. Code Ann. § 13-1-101(50)(b). By definition,
and as a matter of law, Mr. Motl’s statements did not constitute improper
election advocacy in opposition to the re-election of Rep. Tschida, even
though some individuals may reasonably have interpreted the statements to
oppose Rep. Tschida’s re-election.

¶11 On March 1, 2019, Monforton filed a Petition for Judicial Review of a Final Agency

Decision (Monforton’s petition) with the District Court to contest the Deputy COPP’s

dismissal of his ethics complaint. Monforton’s petition conceded that the Deputy COPP

correctly applied § 13-1-101(50)(b)’s definition of “oppose” in order to determine the

meaning of “opposition” under § 2-2-121(3)(a). However, Monforton’s petition alleged

that the Deputy COPP erred by concluding that Motl’s November 2016 statements did not

constitute “opposition” as defined by § 13-1-101(50)(b), MCA. Instead, Monforton’s

petition argued that Motl’s statements to KGVO were made “in such a manner that was

susceptible of no reasonable interpretation other than as a call for the defeat of Rep. Tschida

in the election,” thereby falling within § 13-1-101(50)(b)’s definition of “opposition.”

¶12 On December 17, 2019, the District Court issued its order denying Monforton’s

petition, concluding that the Deputy COPP correctly interpreted § 13-1-101(50)(b) and did

not err in finding that Motl’s statements could reasonably be interpreted as being made in

defense of Montana’s former confidentiality statute governing ethics complaints,

§ 2-2-136(4), MCA (2015).

¶13 Monforton appeals.

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 STANDARD OF REVIEW

¶14 The Montana Administrative Procedure Act (MAPA) governs judicial review of a

final agency decision by the COPP. Mont. Fish, Wildlife & Parks v. Trap Free Mont. Pub.

Lands, 2018 MT 120, ¶ 11, 391 Mont. 328, 417 P.3d 1100 (citing Williamson v.

Mont. Pub. Serv. Comm’n, 2012 MT 32, ¶ 25, 364 Mont. 128, 272 P.3d 71).

MAPA, § 2-4-704(2)(a)(i)-(vi), MCA, stipulates that a reviewing court may reverse or

modify an agency’s decision “if substantial rights of the appellant have been prejudiced”

because:

(a) the administrative findings, inferences, conclusions, or decisions are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

¶15 Under MAPA’s provided framework, a district court “reviews the agency’s decision

to determine whether the agency’s findings of fact are clearly erroneous and whether its

determinations of law are correct.” Trap Free, ¶ 11 (citing Molnar v. Fox, 2013 MT 132,

¶ 17, 370 Mont. 238, 301 P.3d 824). This same standard of review applies to both the

district court’s review of the agency decision and this Court’s review of the district court’s

decision. Molnar, ¶ 17.

DISCUSSION

¶16 On appeal, Monforton alleges that both the District Court and Deputy COPP

incorrectly interpreted § 13-1-101(50)(b)’s definition of “oppose.” Specifically,

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Monforton contends that Motl’s statements to KGVO were “susceptible of no reasonable

interpretation other than as an appeal to defeat Rep. Tschida at the polls.”2 Our analysis is

controlled by the plain language of § 2-2-121(3)(a) and § 13-1-101(50)(b)—the statutes

which Monforton agrees should govern the adjudication of his ethics complaint.

¶17 Monforton asserts that Motl’s radio interview statements constituted unlawful

election advocacy by a public officer, in violation of § 2-2-121(3)(a), MCA,

(Montana Code of Ethics, Rules of Conduct for Public Officers and Employees).

Section 2-2-121(3)(a) provides in relevant part: “a public officer or public employee may

not use public time, facilities, equipment, supplies, personnel, or funds to solicit support

for or opposition to any political committee, [or to] the nomination or election of any person

to public office . . . .” It is undisputed that Motl’s statements to KGVO were offered using

public time, facilities, and equipment. However, a plain reading of this ethics statute

indicates that Motl’s statements must also constitute a solicitation of “opposition” to

Tschida’s election. If they do not, then no violation of § 2-2-121(3)(a) has occurred.

¶18 The Montana Code of Ethics, by itself, does not define the term “opposition.”

However, as both Monforton and Motl have acknowledged, the Deputy COPP and the

2
Monforton also argues that the District Court erred by applying a deferential standard of review
to the Deputy COPP’s decision. Monforton maintains that the Deputy COPP’s decision to dismiss
his ethics complaint for failing to state a claim was a “conclusion of law” which merited a review
for “correctness” by the District Court instead of deferential review for “clear error.” However,
the District Court’s decision explicitly stated that its review was for “correctness” and cited its
authority to review the Deputy COPP’s decision for “error of law” under MAPA,
§ 2-4-704(2)(a)(iv), MCA. The District Court stated that it “accepts the Findings of Fact in the
Decision Dismissing [Monforton’s] Ethics Complaint as true and reviews the [Deputy COPP’s]
Conclusions of Law for correctness.” Thus, this argument by Monforton fails, as the District Court
clearly applied the correct standard of review.
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District Court correctly invoked the language of § 13-1-101(50)(b), MCA—which defines

the words “support or oppose” in the context of Montana’s elections laws—in order to

evaluate whether Motl’s radio comments constituted unlawful “opposition” to Tschida’s

candidacy under § 2-2-121(3)(a). Section 13-1-101(50)(b) defines “oppose” as “depicting

one or more clearly identified candidates . . . in a manner that is susceptible of no reasonable

interpretation other than as a call for the . . . defeat of the candidate in an election . . . .”

The plain language—“susceptible of no reasonable interpretations other than”—means that

statements which can only be reasonably interpreted as calling for a candidate’s defeat fall

under § 13-1-101(50)(b)’s definition of “oppose.” Conversely, statements about a

candidate that are subject to an alternate reasonable interpretation will not meet this

definition.

¶19 Motl’s statements to KGVO asserted that Tschida had knowingly violated an ethics

statute requiring that complaints lodged with Motl be kept confidential. Motl contended

Tschida irresponsibly publicized his damaging allegations against an opposing party’s

gubernatorial candidate in the week before the gubernatorial election. Motl told the

interviewer that Tschida could eventually face charges for his violation of this law but

noted that it would be inappropriate for him to comment any further given the proximity to

the upcoming election. The Deputy COPP and District Court agreed with Motl’s argument

that his statements were made in defense of a statute, § 2-2-136(4), MCA (2015), which

was in effect at the time of Motl’s interview and which Motl was explicitly charged with

upholding as Montana’s COPP. The District Court affirmed the Deputy COPP’s decision

and held that Motl’s conduct fell outside of § 13-1-101(50)(b)’s definition of “opposition”

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to Tschida’s candidacy, as Motl had clearly identified a reasonable alternative

interpretation of his statements to KGVO.

¶20 We agree with the reasoning of the District Court and Deputy COPP. A reasonable

interpretation of Motl’s statements is that they were made in defense of a statute that Motl

was charged with upholding. The COPP’s mission statement is “[t]o monitor and to

enforce, in a fair and impartial manner, campaign practices and campaign finance

disclosure . . . [and] ethical standards of conduct for legislators,” such as

Representative Tschida. Moreover, it is undisputed that Motl, as COPP, was charged with

enforcing Montana’s ethics laws for state legislators, which necessarily included

§ 2-2-136(4), MCA (2015). In the week before the November 2016 election,

§ 2-2-136(4), MCA (2015), was still in effect. Thus, the protections offered by this ethics

law fell squarely within the COPP’s published mission of promoting and protecting the fair

conduct of legislators such as Tschida. Motl’s statements, made in the context of

§ 2-2-136(4), MCA (2015), and his responsibility to enforce rules of conduct, have a

reasonable interpretation “other than as a call for the . . . defeat of” Tschida. Motl’s

comments do not constitute “opposition” to Tschida’s election under § 13-1-101(50)(b)’s

definition because, in order for its definition to apply, Motl’s opposition to Tschida’s

election must be the only reasonable interpretation of his statements. Consequently, the

District Court correctly upheld the Deputy COPP’s decision that no ethics violation

occurred under § 2-2-121(3)(a), and the Deputy COPP lawfully dismissed Monforton’s

complaint for failing to state a claim.

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¶21 Monforton opposes this conclusion and asserts that Motl’s actions meet

§ 13-1-101(50)(b)’s definition because Motl’s interview with KGVO served as a

“springboard to slander Tschida . . . in a manner no voter would interpret as anything other

than a call for Tschida’s defeat.” The District Court indeed acknowledged the

Deputy COPP’s position that “some individuals may reasonably have interpreted the

statements to oppose Rep. Tschida’s re-election.” However, the plain language of

§ 13-1-101(50)(b) requires that the only reasonable interpretation of Motl’s statements is

that they were calling for Tschida’s defeat in the upcoming election. Monforton maintains

that the existence of several indirect “indicia” of opposition within Motl’s statements prove

that they can only be reasonably interpreted as opposing Tschida’s candidacy.

Nevertheless, none of Monforton’s alleged “indicia” are sufficient to defeat the conclusion

that Motl’s radio interview statements can be reasonably interpreted as being made in

defense of an ethics statute that Motl himself was categorically responsible for enforcing

as COPP.

¶22 One of the indicia that Monforton argues indicates Motl made his radio statements

in opposition to Tschida’s candidacy centers on Motl’s express reminder to listeners that

Tschida was “a sitting legislator,” that it was “the last days of a campaign,” and that Tschida

disclosed his ethics complaint “for political purposes in the last days of a political

campaign.” However, the transcript from Motl’s interview indicates that Motl’s comment

that Tschida was a “sitting legislator” was made in order to emphasize that Tschida used

his platform as a legislator to unlawfully distribute his complaint, constituting a serious

violation of § 2-2-136(4), MCA (2015). Additionally, the context of Motl’s radio interview

13
demonstrates that Motl’s dual references to the “last days of a political campaign” referred

to Montana’s gubernatorial campaign, which Motl feared Tschida sought to unlawfully

influence by publicizing the contents of his ethics complaint against the opposing party’s

gubernatorial candidate—Steve Bullock.

¶23 Monforton also argues that Motl’s statements came “five days before Election Day”

and that the timing of Motl’s statements made them “all the more likely to be taken by

voters as a call to defeat Tschida.” However, it was Tschida’s release of his ethics

complaint just seven days before Bullock was up for re-election that prompted Motl’s

interview. Thus, the timing of Motl’s statements is more appropriately attributable to

Tschida as Tschida chose to release his complaint against Bullock in close proximity to the

election. Instead, where Motl’s remarks did discuss Tschida’s re-election, Motl’s

statements demonstrated a hyper-awareness of the impropriety of any interference.

Specifically, when Motl was prompted by the interviewer to discuss whether his office

would consider pursuing criminal charges against Tschida, Motl stopped the interviewer’s

line of questioning and replied that it would be “inappropriate for [him] . . . to say” in light

of “the timing we’ve got left” until the election.

¶24 Monforton also contends that Motl’s comments about the possibility of Tschida

facing criminal charges cannot be reasonably interpreted as being in defense of

§ 2-2-136(4), MCA (2015), which was a civil statute. It is undisputed that Motl’s radio

comments asserted that Tschida’s actions may have risen to level of official misconduct,

which is a Title 45 criminal statute in Montana. See § 45-7-401(1), MCA (stating that

official misconduct occurs when a public servant “knowingly performs an act in an official

14
capacity that the public servant knows is forbidden by law”). Based on these statements,

Monforton asserts that Motl, as COPP, “was not charged with enforcing any criminal

statutes in Title 45 such as official misconduct,” and thereby argues that “[n]o reasonable

voter” would interpret Motl’s reference to “a criminal statute in Title 45 as a defense of a

civil statute in Title 2.” However, actions that constitute ethics violations according to the

COPP may also constitute official misconduct under Title 45. In these instances, the COPP

may request a criminal investigation from the Montana Department of Justice (DOJ) in

order to determine whether official misconduct has occurred. See, e.g., Marking & Fauth

v. Lesnik, COPP-2018-CFP-026 (where DOJ initiated an official misconduct investigation

at the request of the COPP).

¶25 Finally, Monforton characterizes Motl’s accusation that Tschida violated the law as

“reckless” and “patently false.” In support of this view, Monforton asserts that Tschida

ultimately “did nothing wrong” in light of the Ninth Circuit’s decision to strike down

§ 2-2-136(4), MCA (2015). See Tschida, 924 F.3d at 1305. However, the Ninth Circuit’s

decision also concluded that Motl was entitled to qualified immunity for his radio

comments because “it was not unreasonable for Commissioner Motl to rely on the

constitutionality of Montana’s duly enacted confidentiality statute” when he “threatened to

sanction Representative Tschida for violating its confidentiality provision.”

Tschida, 924 F.3d at 1305-06. The same logic applies here; thus, Motl’s statements

accusing Tschida of wrongdoing were neither reckless nor patently false.

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 CONCLUSION

¶26 We conclude that while some individuals may have reasonably interpreted Motl’s

statements as soliciting opposition to Tschida’s re-election, this was not the only reasonable

interpretation of Motl’s statements, as the plain language of § 13-1-101(50)(b), MCA,

requires. One reasonable interpretation of Motl’s statements was that they were made in

defense of a statute, § 2-2-136(4), MCA (2015), which was in effect at the time of Motl’s

interview and which Motl was expressly charged with enforcing. We affirm the

District Court’s decision to uphold the Deputy COPP’s dismissal of Monforton’s ethics

complaint on the basis that Motl’s statements did not constitute unlawful “opposition” to

Tschida’s election under § 2-2-121(3)(a), MCA, as dictated by the plain text of

§ 13-1-101(50)(b), MCA.

/S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON

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