National Association for Gun Rights, Inc. v. Motl

188 F. Supp. 3d 1020, 2016 U.S. Dist. LEXIS 67485, 2016 WL 3003201
CourtDistrict Court, D. Montana
DecidedMay 23, 2016
DocketCV 16-23-H-DLC; (Consolidated with CV 16-33-H-DLC)
StatusPublished
Cited by2 cases

This text of 188 F. Supp. 3d 1020 (National Association for Gun Rights, Inc. v. Motl) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Association for Gun Rights, Inc. v. Motl, 188 F. Supp. 3d 1020, 2016 U.S. Dist. LEXIS 67485, 2016 WL 3003201 (D. Mont. 2016).

Opinion

ORDER

Dana L. Christensen, Chief Judge United States District Court

I. Introduction

Consolidated Plaintiffs National Association for Gun Rights, Inc., (“NAGR”) and J.C. Kantorowicz (collectively “Plaintiffs”) move the Court for a preliminary injunction enjoining Defendants Jonathan Motl, Timothy C. Fox, and Leo Gallagher1 (collectively “Defendants”) from enforcing Montana Code Annotated (“MCA”) § 13-35-225(3), Montana’s vote disclosure statute. NAGR also separately moves the Court to: (1) enjoin Defendants from enforcing MCA § 13-1-101(15), which defines an electioneering communication un[1026]*1026der Montana law; and (2) grant injunctive and. declaratory relief concerning an alleged political mailer NAGR sent in 2012. For the reasons explained below, the Court grants Plaintiffs’ motion in part and denies in part. The Court will preliminarily enjoin enforcement of § 13-35-225(3), but will deny the motion pertaining to § 13—1— 101(15) and the 2012 mailer.

II. Background

A. National Association for Gun Rights, Inc.

As discussed in previous orders by this Court, Plaintiff NAGR is a tax-exempt organization under Internal Revenue Code § 501(c)(4). See NAGR v. Murray, 969 F.Supp.2d 1262, 1264-1265 (D.Mont. Sept. 17, 2013) (“NAGR I”). NAGR’s stated “mission is to defend the right to bear arms, and advance that God-given Constitutional Right” by educating the public and “urging them to take action in the public policy process.” (Doc. 1 at 6.) In 2012, NAGR sent a mailer2 (“2012 Mailer”) to the residents of Montana Senate District 3 (“SD 3”) in Flathead County, Montana. The 2012 Mailer discussed state Senator Bruce Tutvedt’s alleged attempts to “kill” Senate Bill 371. (Doe. 1 at 20.)

Senate Bill 371, entitled “[a]n act ensuring the availability of Montana ammunition; encouraging the formation of business in Montana primarily engaged in the manufacture of ammunition components,” died in the legislative process during the 2011 Montana Session. The 2012 Mailer alleged that “FACT: Flathead County was poised to get a new smokeless powder plant until Bruce Tutyedt took to the Senate Floor and demanded it be killed. (S.R. 371, 4/13/11 Audio) Now, thanks to Bruce Tut-vedt, unemployment in the Flathead is nearly 11% percent.” (Doc. 1 at 20. (emphasis in original)) The mailer further urged the recipient to “[cjontact Bruce Tutvedt right away and DEMAND he apologize for killing new manufacturing in Flathead County.” (Id. (emphasis in original))

In January of 2016, Defendant Commissioner of Political Practices- Jonathan Motl (“Motl”) issued a document entitled “Summary of Facts and Findings of Sufficient Evidence to Show a Violation of Montana’s Campaign Practices Act.” (“2016 COPP Findings”) (Doc. 1 at 22.) In these findings, the COPP states that NAGR, along with six other corporate entities, “failed to meet Montana campaign practice law and standards'by failing to register, report and disclose ... illegal corporate contributions for or against a SD 3 Republican primary election candidate.” (Id. at 33.) The 2016 COPP Findings further allege that NAGR coordinated with Rollan Roberts II, a 2012 candidate for SD 3, through “attack slicks [and] attack letters” which constitute “express advocacy and coordinated in-kind expenditures.” (Doc. 1 at 35.) The 2016 COPP Findings concluded with the finding that there is sufficient evidence justifying civil prosecution under Montana law and submitted the matter to the Lewis and Clark County Attorney.

B. J.C. Kantorowicz3

Plaintiff J.C. Kantorowicz (“Kantorow-icz”) is a 2016 Republican primary election candidate for Montana Senate District 10 (“SD 10”). In January of 2016, Kantorow-icz sent a letter to 1100 residents of SD 10 criticizing state representative Steve Fitzpatrick’s (“Fitzpatrick”) voting record. Fitzpatrick is a Republican seeking election to SD 10. The January 2016 letter [1027]*1027refers to Fitzpatrick as a “RIÑO”4 and characterizes his voting record in the Montana House of Representatives as “consistently vot[ing] with the Democrats.” (Doc. 1-2 at 1.) The letter further alleges that “[w]henever votes were close on a Republican bill before the ■ Legislature, [Fitzpatrick] cast the deciding vote to defeat the bill. The only time he voted with Republicans was when the Democrats also voted with the GOP to overwhelmingly pass legislation,” (Id.)

In response to the letter, Fitzpatrick filed a complaint with the COPP stating that Kantorowicz violated MCA § 13—35— 225(3) by not “providing a reference to the particular vote or votes -upon which the information is based” and by not providing a signed statement affirming that the statements about his voting record are accurate and true. (Doc. 1-3 at 3.) The COPP then sent Kantorowicz a letter informing him of the complaint and requested an expedited response due to the upcoming election. The COPP’s letter further, states that an investigation may be conducted and “[u]pon the completion of [this] investigation a summary of facts and statement of findings will be prepared and a copy will be sent to you. This letter does not foreclose any other options available to the Commissioner to address the issues raised by the Complaint.” (Doc. 1-5 at 2.)

C. Present Litigation

In March of 2016, ÑAGR filed suit in this Court bringing three claims for relief. NAGR’s first claim for relief requests a declaratory ruling that the 2012 Mailer was issue advocacy and not subject to regulation under Montana law, and therefore, the Court should enjoin the COPP from pursuing civil penalties based on the 2012 Mailer. Second, NAGR argues that MCA § 13-1-101(15), which defines “electioneering communication,” is' unconstitutionally overbroad under the First Amendment to the United States Constitution and should be struck down. This statute provides,

(a) “electioneering communication” means a paid communication that is publicly distributed by radio, television, cable, satellite, internet website, newspaper, .periodical, billboard, mail, or any other distribution of printed materials, that is made within 60 days of the initiation of voting in an election, that does not support or oppose a candidate or ballot issue, that can be received by more than 100 recipients in the district voting on the candidate or ballot issue, and that:
(i) refers to one or more clearly identified candidates in that election;
(ii) depicts the name, image, likeness, or voice of one or more clearly identified candidates in that election; or
(iii) refers to a political party, ballot issue, or other question submitted to the votérs in that election.
(b) The term does not mean:
(i) a bona fide news story, commentary, blog, or editorial ’ distributed through the facilities of any broadcasting station, newspaper, magazine, internet website, or other periodical publication of general circulation unless the facilities are owned or controlled by a candidate" or political committee;
(ii) a communication by any membership organization or corporation to its members, stockholders,- or employees;

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188 F. Supp. 3d 1020, 2016 U.S. Dist. LEXIS 67485, 2016 WL 3003201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-association-for-gun-rights-inc-v-motl-mtd-2016.