By Michael Howell
U.S. District Court Judge Donald Molloy has issued an initial ruling in attorney Robert Myers’ case against Shaun Thompson in his official capacity as Chief Disciplinary Counsel for the State of Montana.
Thompson took action against Myers claiming that he violated the state’s Code of Judicial Conduct and the Rules of Professional Conduct. He based his allegations primarily on the record of a case in which Myers, in defense of Dan Cox in a parental custody case, was sanctioned by Judge Jeffrey Langton for his actions in the case and fined $10,000. Thompson also began investigating a radio ad placed by Myers in his election campaign against Judge Jeffrey Langton. The ad features the voice of Dan Cox accusing Langton of committing fraud on the court.
Myers, who is being represented in his suit by attorney Matthew Monforton, is asking the federal court to declare portions of the state’s codes of judicial and professional conduct unconstitutional. Specifically, Rule 8.2(a) of the Montana Rules of Professional Conduct which states, “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office” and Subsection (b) of that rule which further provides that “[a] lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct,” implicating Canon 4 of the Montana Code of Judicial Conduct. Rule 4.l(A)(10) states, “[a] judge or a judicial candidate shall not knowingly or with reckless disregard for the truth, make any false or misleading statement.”
Following the filing of the case, Myers received the following email from the Office of Disciplinary Counsel stating, “Your federal lawsuit notwithstanding, Mr. Myers’ response is still due as directed, absent an injunction. Your client is free to run any advertising he wishes, but there will be consequences for untruthful (or reckless disregard for the truth) advertisements in violation of the Rules, which will withstand constitutional scrutiny.”
Myers wants to continue broadcasting the radio advertisement. He claims he will not do so, however, so long as he faces a threat of prosecution by ODC and subsequent discipline. At oral argument he claimed the Canons kept him from saying anything critical of the incumbent judge.
Myers also asked Molloy to issue a preliminary injunction stopping the investigation of the ad based on the grounds that he is currently a candidate for district judge in Ravalli County and his ability to effectively campaign “has been stymied by being threatened with discipline for broadcasting a truthful advertisement about his opponent, Judge Jeffrey Langton.”
Thompson filed a motion to dismiss Myers’ as-applied challenges for lack of standing and ripeness and to dismiss Myers’ complaint under the Younger doctrine. The Younger doctrine instructs federal courts to abstain from granting injunctive or declaratory relief when such relief would interfere with pending state or local proceedings.
Thompson argued that Myers lacked standing because he had not suffered any injury in fact from the investigation. But Molloy found that the threat of facing potential prosecution is enough to give Myers standing. He also found that Myers’ case was ripe for a case hearing since it involves Myers’ rights as a candidate in an election process that will take place in November. He followed other courts in ruling that investigation proceedings alone do not trigger Younger.
However, Molloy also denied Myers’ request for a preliminary injunction.
In considering the matter, Molloy noted that a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. The burden of proof falls on the person requesting relief.
But, in the First Amendment context, [on the merits prong], the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement, at which point the burden shifts to the government to justify the restriction. This is because the government always bears the ultimate burden of justifying its restrictions on speech.
In this case Molloy found that Myers did establish a “colorable claim” that his free speech rights were being violated. But he also found that the state does have the right to restrict the speech of a judicial candidate if the restriction is “narrowly tailored to serve a compelling interest.” In this case he found the compelling interest to be the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation’s elected judges.”
“The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary has no influence over either the sword or the purse; … neither force nor will but merely judgment. The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, ‘justice must satisfy the appearance of justice.’ It follows that public perception of judicial integrity is ‘a state interest of the highest order,’” wrote Molloy.
Accordingly, states may regulate judicial elections differently than political elections “because the role of judges differs from the role of politicians.”
Myers acknowledged that judicial integrity and the appearance of judicial integrity are compelling state interests. He did argue, however, that the State’s rules are not narrowly tailored to meet those interests.
Molloy disagreed.
“Here, the defendant makes a strong showing that the rules are necessary to achieve the State’s interest in ensuring public confidence in the integrity of the judiciary. The State has chosen to target the conduct it believes most likely to erode that confidence: false and misleading statements by those entrusted by the States to carry out the law, the lawyers, judicial candidates, and judges,” Molloy wrote.
Myers argued that counterspeech is a less restrictive alternative than regulations that suppress false or misleading speech.
While Molloy recognized that counterspeech may be a strong alternative in the political election context, “the rationale advanced by Myers does not work to enhance the compelling State interest in judicial elections at issue here.”
He notes that the rules are not meant to protect individual judges or judicial candidates from scrutiny and criticism.
“Rather, the rules expressly limit false and misleading statements on the grounds that the public confidence in the system, not the individual judge, erodes when false statements are made in judicial races or by judicial candidates.”
“Counterspeech is the best argument to explore falsehoods in speech about ideas and beliefs. Counterspeech is the cure to hate speech, to subversive speech, or to disagreeable political ideas or policies. Counterspeech is not a remedy to a systemic challenge that is false and undermines the public’s confidence in the third branch of government.”
Molloy found that Montana’s provisions do not prevent judicial candidates from announcing their views on disputed legal or political subjects or making truthful critical statements about judges or judicial candidates. Judicial candidates are free to express factually-based opinions and to report truthfully in commenting about an opponent, including an incumbent judge. He notes that “in this case, discipline would not be appropriate so long as the facts underlying the statement are true.”
Molloy also rejected the argument that the rules were “underinclusive” because Canon 4.l(A)(10) does not apply to statements made prior to attorneys announcing their candidacy and Rule 8.2(a) applies only to attorneys. Molloy notes that the Supreme Court has ruled that a State need not address all aspects of the problem in one fell swoop and policymakers may focus on their most pressing concerns.
“In doing so, the Court looked to whether the Florida provision was ‘aim[ed] squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary,’ ‘applie[d] evenhandedly to all judges and judicial candidates, regardless of their viewpoint,’ and was not ‘riddled with exceptions,’” Molloy wrote.
“The same can be said of the rules at issue here. First, they are aimed at conduct the State has identified as most likely to undermine public confidence in the integrity of the judiciary, i.e., false statements of lawyers, judicial candidates, and judges. Second, the rules apply to all lawyers under Rule 8.2(a) and to all judicial candidates and judges under Rule 4.l(A)(10). Finally, there are no exceptions,” he wrote.
Based on this reasoning Molloy determined that Myers is unlikely to succeed on the merits of his claim and his motion for a preliminary injunction was denied.