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Cox v. McLean

United States District Court, D. Montana, Missoula Division

September 30, 2014

DAN COX, on behalf of himself and all others similarly situated, Plaintiffs,
v.
EDWARD McLEAN, in his official capacity as Chair of Montana's Judicial Standards Commission; BLAIR JONES, in his official capacity as a member of Montana's Judicial Standards Commission; VICTOR VALGENTI, in his official capacity as a member of Montana's Judicial Standards Commission; JOHN MURPHY, in his official capacity asa member of Montana's Judicial Standards Commission; SUE SCHLEIF, in her official capacity as a member of Montana's Judicial Standards Commission, Defendants

Page 766

For Dan Cox, on behalf of himself and all others similarly situated, Plaintiff: Matthew G. Monforton, LEAD ATTORNEY, MONFORTON LAW OFFICES, Bozeman, MT.

For Edward McLean, in his official capacity as Chair of Montana's Judicial Standards Commission, Blair Jones, in his official capacity as a member of Montana's Judicial Standards Commission, Victor Valgenti, in his official capacity as a member of Montana's Judicial Standards Commission, John Murphy, in his official capacity as a member of Montana's Judicial Standards Commission, Sue Schleif, in his official capacity as a member of Montana's Judicial Standards Commission, Defendants: Matthew T. Cochenour, MONTANA DEPARTMENT OF JUSTICE, Helena, MT.

Page 767

ORDER

Dana L. Christensen, Chief United States District Judge.

Before the Court is Plaintiff's motion for preliminary injunction. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons explained, the Court grants the motion.

Background

Plaintiff Dan Cox filed this action seeking declaratory and injunctive relief asserting that certain Montana laws that require confidentiality in all Judicial Standards Commission proceedings violate his First Amendment rights under the United States Constitution. Cox filed the instant motion for preliminary injunction seeking to enjoin Defendants from prosecuting him for publishing a complaint he filed with the Judicial Standards Commission and the letter he received from the Commission dismissing that complaint.

In 1972, the citizens of Montana adopted a new Constitution which, among other things, directed the Legislature to create a Judicial Standards Commission to receive and investigate complaints of misconduct filed against Montana judges. Mont. Const. Art. VII, § 11(1). The Montana Constitution requires that all of the Commission's proceedings be confidential except as provided by statute. Id. at § 11(4). All papers filed with the Commission and all proceedings held before it are confidential unless (1) the Commission finds the complaint is supported by good

Page 768

cause, (2) the Montana Supreme Court holds a hearing in response to the complaint, or (3) the judge named in the complaint waives his or her right to confidentiality. Mont. Code Ann. § 3-1-1105, -1107(2), -1121 to -1126. The Commission is authorized to promulgate its own rules. § 3-1-1105(2). One of the rules provides for confidentiality of the proceedings before the Commission:

Every witness in every proceeding under these Rules shall be sworn to tell the truth and not to disclose the existence of the proceeding or the identity of the judge until the proceedings are no longer confidential under these rules. Violation of the oath shall be an act of contempt and punishable as such.

Rule 7(c), Rules of Judicial Standards Commission. If, after an initial investigation, the Commission determines that a complaint is not supported by good cause, then the Commission dismisses the complaint, terminates the inquiry, and informs the complainant. Rule 10(e). The requirement of confidentiality remains in place even after the Commission dismisses the complaint and terminates the inquiry. Id.

Plaintiff Cox is an active member of the Montana Libertarian Party and served as the party's nominee for election to the United States Senate in 2012. Cox became aware of actions allegedly taken by a Montana state district court judge that Cox believed violated several canons of the Montana Judicial Code, which caused Cox to file a complaint with the Commission against the judge in early June, 2013. The Commission determined that no ethical violation or professional misconduct in violation of the Canons of Judicial Ethics had occurred, and dismissed the complaint and informed Cox of its decision by letter in August 2013. In the letter, the Commission reminded Cox of the confidentiality requirements. Cox's attorney then sent a letter to the Commission asking if the Commission intended to subject Cox to contempt proceedings if Cox published his complaint and the letter informing him of the complaint's dismissal. The Commission responded that it would appoint a district court judge to conduct a contempt hearing if Cox breached the confidentiality of the complaint.

Cox intends to seek a recall of the judge named in the complaint as well as oppose the judge if he/she seeks re-election, and he desires to publish the complaint and the Commission's letter to him dismissing the complaint as part of his election efforts. However, he will not do so while there remains a threat of a contempt citation. Cox does not seek internal Commission documents such as the Commission's correspondence with the judge named in the complaint, the identity of witnesses, or transcripts of the proceedings.

Cox brings a facial and as applied challenge to the provisions of Montana law requiring confidentiality of Judicial Standards Commission proceedings. Cox, furthermore, brings the action on behalf of himself and all others similarly situated. However, his request for a preliminary injunction, which is the subject of this order, is narrower in scope. Cox seeks only to publish his complaint and the letter he received from the Commission dismissing that complaint. It is undisputed that all Commission proceedings relative to Cox's complaint have been completed and that the inquiry relative to the complaint was terminated over a year ago. In other words, Cox is not seeking to publish information concerning an active and ongoing Commission investigation.

Discussion

A preliminary injunction is an extraordinary remedy never awarded ...


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