Cox v. McLean et al
Filing
17
ORDER granting 3 Motion for Preliminary Injunction. Signed by Chief Judge Dana L. Christensen on 9/30/2014. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DAN COX, on behalf of himself and
all others similarly situated,
CV 14–199–M–DLC
Plaintiffs,
ORDER
vs.
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.
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.
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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
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
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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
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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
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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 as a
matter of right. Winter v. Natural Resources Defense Council, 555 U.S. 7, 22
(2008). A party seeking a preliminary injunction must establish (1) that it is likely
to succeed on the merits of its claims, (2) that it is likely to suffer irreparable harm
absent an injunction, (3) that the balance of hardships tips in its favor, and (4) that
an injunction is in the public interest. Id. at 20. A petitioner, even in a First
Amendment case, must make a showing as to all four factors and the test does not
simply “collapse into the merits” in First Amendment cases. Thalheimer v. City of
San Diego, 645 F.3d 1109, 1128 (9th Cir. 2011).
The burden is on the party seeking the injunction to satisfy the Winter
elements. Id. at 1115. 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
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restriction.” Id. at 1116. This is because the government always bears the
ultimate burden of justifying its restrictions on speech. Id.
I.
Likelihood of Success on Merits
Cox’s verified complaint may be treated as an affidavit, and thus may be
used as evidence to support an injunction. Thalheimer, 645 F.3d at 1116. Cox
brings both a facial and as-applied constitutional challenge to the following
provisions of Montana law: Montana Constitution Article VII, § 11(4); Montana
Code Annotated § 3-1-1105, and Rule 7(c) of the Rules of Judicial Standards
Commission. These provisions generally require all proceedings before the
Judicial Standards Commission to remain confidential unless an exception applies.
Pursuant to Montana law, Cox may be charged with contempt if he
publishes the complaint he filed with the Commission and/or the dismissal letter
from the Commission informing him that his complaint has been dismissed,
notwithstanding the fact that these proceedings were terminated over one year ago.
Rule 7(a),(c). Cox maintains that this violates his right to free speech under the
First Amendment and infringes on his right to engage in political speech. Cox
wishes to publish the complaint and letter for at least two reasons: (1) to unseat the
judge who is the subject of his complaint; and (2) to criticize the Commission for
failing to properly investigate his complaint. Again, the Commission’s inquiry
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into the complaint filed by Cox has long been terminated, yet the restrictions on
his speech persist.
The Court concludes that Cox makes a colorable claim that his First
Amendment rights have been infringed. Cox wishes to criticize government
officials and a government body for political reasons, but he is restricted from
doing so by threat of civil or criminal prosecution.1 Political speech “occupies the
core of the protection afforded by the First Amendment.” McIntyre v. Ohio
Elections Com’n, 514 U.S. 334, 346 (1995). The Supreme Court has held that
“[t]he First Amendment affords the broadest protection to such political
expression in order to assure unfettered interchange of ideas for the bringing about
of political and social changes desired by the people.” Id. It is clear that Cox has
made a colorable claim that his First Amendment rights have been infringed.
Because Cox makes a colorable claim that his First Amendment rights have been
infringed, the burden shifts to Defendants to justify the restrictions on speech.
Sanders County Republican Cent. Committee v. Bullock, 698 F.3d 741, 745 (9th
1
Rule 7(c) provides that a person who breaches confidentiality will be deemed to have
committed “an act of contempt and [will be] punishable as such.” Defendants maintain that Rule
7(c) refers not to the criminal contempt statute, which provides for fines and jail time, but that it
“appears the contempt power is simply the general contempt power that all courts inherently
possess.” (Doc. 15 at 3.) Because Defendants themselves are unsure of what punishments might
be available, the Court assumes that either civil or criminal punishments can be imposed.
Moreover, even if only civil punishments can be imposed, this would not change the Court’s
analysis.
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Cir. 2012).
The Court must first determine what standard of scrutiny applies to the
restrictions on Cox’s speech. Here, Defendants concede that strict scrutiny is the
applicable standard. The challenged laws require confidentiality in Judicial
Standards Commission proceedings. It is clear that the restrictions are contentbased. Lind v. Grimmer, 30 F.3d 1115, 1118 (9th Cir. 1994). Thus, the laws are
“presumptively unconstitutional,” strict scrutiny applies, and Defendants must
prove that the restriction is narrowly tailored to serve a compelling state interest.
Id.
The Court concludes that Defendants fail to justify the restrictions on Cox’s
speech and that Cox is likely to succeed on the merits of his as-applied challenge
to the laws. Defendants identify a variety of state interests that purportedly justify
the restriction on Cox’s speech including, among others: (1) confidentiality
encourages the filing of complaints and provides participants protection against
possible judicial recrimination; (2) confidentiality protects judges against
unwarranted complaints; (3) confidentiality maintains the confidence in the
judiciary by avoiding premature announcement of groundless or frivolous
complaints; (4) confidentiality facilitates the Commission’s work by allowing
judges faced with justified complaints to voluntarily resign or retire. These are the
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same state interests advanced by the losing party in Landmark Communications v.
Virginia, 435 U.S. 829 (1978), where the United States Supreme Court struck
down as unconstitutional a Virginia law which criminally penalized the publishing
by third parties of truthful information about proceedings in Virginia’s Judicial
Inquiry and Review Commission. Landmark, 435 U.S. at 845-846. There, the
Court assumed these were legitimate state interests, but found that they failed to
justify the restrictions on political speech. Id. at 841.
Montana, like the Commonwealth of Virginia in the Landmark case, has an
interest in protecting the reputation of its judges, and in that effort, enhancing the
public’s perception of the judiciary. However, previous Supreme Court cases have
clearly established that injury to official reputation is not a basis for “repressing
speech that would otherwise be free.” New York Times Co. v. Sullivan, 376 U.S.
254, 272-273 (1964). As Mr. Justice Black observed in Bridges v. California, 314
U.S. 252, 270-271 (1941): “The assumption that respect for the judiciary can be
won by shielding judges from published criticism wrongly appraises the character
of American public opinion . . . . [A]n enforced silence, however limited, solely in
the name of preserving the dignity of the bench, would probably engender
resentment, suspicion, and contempt much more than it would enhance respect.”
Mr. Justice Frankfurter, in his dissent in Bridges, agreed that speech cannot be
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punished when the purpose is simply “to protect the court as a mystical entity or
the judges as individuals or as anointed priests set apart from the community and
spared the criticism to which in a democracy other public servants are exposed.”
Id. at 292.
The reputation of a Montana judge, and the confidentiality of Commission
proceedings, serves a legitimate purpose during an ongoing investigation.
Complaints can be filed by litigants in the course of legal proceedings solely for
the purpose of seeking disqualification of a judge who has issued disagreeable
rulings. But again, that is not the case here, which involves a complaint that was
summarily dismissed by the Commission over one year ago.
Defendants attempt to distinguish Landmark, Lind, and other out of circuit
cases by arguing that Cox has failed to show a likelihood of success on the merits.
Defendants make little attempt to independently meet their burden of proof.
Critically, none of the cases cited by Defendants, nor any the Court can find
through independent research, provides Defendants with any support for their
position that a perpetual ban on Cox from publishing his dismissed complaint and
the dismissal letter, is consistent with First Amendment rights. Indeed, the case
which appears to provide Defendants with the most promise in defense of their
position, Kamasinski v. Judicial Review Council, 44 F.3d 106 (2d. Cir 1994),
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makes absolutely clear that such a perpetual ban violates the First Amendment.
In Kamasinski, the Second Circuit Court of Appeals held that a limited ban
on disclosure of the fact of filing a complaint with a judicial review board or the
fact that testimony was given during such a proceeding was consistent with the
First Amendment, but only while an investigation of a complaint was ongoing.
Kamasinski, 44 F.3d at 111. The Court also upheld a limited ban on disclosing
information gleaned through interaction with the judicial review board, while the
board proceedings were ongoing. Id. The Court, however, stressed that such a
ban must have a temporal limitation:
It bears repeating, however, that the ban on disclosure is
constitutional only so long as the [Judicial Review
Council] acts in its investigatory capacity. Once the JRC
has determined whether or not there is probable cause that
judicial misconduct has occurred, even Connecticut's most
compelling interests cannot justify a ban on the public
disclosure of allegations of judicial misconduct.
Id. Other courts facing similar challenges have come to the same conclusion.
Lind, 30 F.3d at 1122-23 (“[W]hile the validity of some of these prohibitions as
applied during the pendency of the investigation may be arguable . . . . [o]nce the
Commission has made its probable cause determination their application clearly is
unconstitutional.”); First Amendment Coalition v. Judicial Inquiry and Review
Bd., 784 F.2d 467, 478 (3rd Cir. 1986)(“when the Board dismisses the charges, its
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record will never be filed, and the restraint on the witness will be perpetual. . . .We
find no state interest strong enough to justify such a sweeping measure.”).
Besides their conclusory assertion, Defendants make no attempt to justify
the perpetual ban on Cox from publishing his dismissed complaint and the letter
the Commission sent to him over one year ago. The Commission concedes that
Cox may freely criticize the judge who is the subject of his complaint, and
publicly raise the same issues that formed the substance of his complaint, subject
of course to defamation laws, but nevertheless maintains that state interests are
served by prohibiting Cox from disclosing the existence of the complaint and the
dismissal of it. As noted, even case law cited by Defendants is directly at odds
with their position in this regard. Defendants fail to demonstrate that the
challenged statute, as applied to Cox, is narrowly tailored to achieve a compelling
state interest. Accordingly, the Court concludes that Cox is likely to succeed on
the merits of his as-applied challenge.
II.
Irreparable Harm
In the Ninth Circuit, even in First Amendment cases, a petitioner seeking an
injunction must make a showing on all four injunction factors. Thalheimer, 645
F.3d at 1128. The test does not simply “collapse into the merits” of the First
Amendment claim. Id.
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As already established, Cox has demonstrated a likelihood of success on the
merits of his as-applied challenge. Thus, for irreparable harm, Cox relies on the
well-established principle that “the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Id.
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Moreover, Cox asserts that
the harm is “particularly irreparable” here because he seeks to engage in political
speech where “timing is of the essence.” Id.
Defendants primarily argue that Cox has failed to show a likelihood of
success on the merits, but the Court has already rejected this argument.
Defendants also contend that Cox cannot show irreparable harm because he can
already engage in political speech in that he is free to criticize the judge in other
ways and publicly disclose the substance of his complaint, just not the complaint
itself. But this argument misses the point that Cox desires to criticize the judge
and the Commission. Cox believes that the Commission failed to adequately
investigate his complaint. Publishing the complaint and the dismissal letter
provides Cox an opportunity to demonstrate that the political process is the only
way to address his complaint against the judge. Apparently Cox wants to make
the case to the voters that because the Judicial Standards Commission will not
remove the judge, the electoral process is the only means to accomplish this goal.
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Whether such a message will persuade the voters is unclear, but it is political
speech nonetheless. Defendants’ argument that the fact of filing should be
confidential even while the substance of the complaint can be disclosed also
undercuts Defendants’ purported justification for the restriction in the first place.
See Stilp v. Contino, 631 F.3d 405, 412 (3rd Cir. 2010).
Cox has demonstrated that his First Amendment freedoms are likely being
infringed. The Court concludes that Cox is likely to suffer irreparable harm absent
an injunction. Id.; Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir.
2009).
III.
Balance of Hardships
Cox contends that when First Amendment rights are at stake, “the balance
of hardships is presumed to tip” in the plaintiff’s favor when the plaintiff
establishes a likelihood of success on the merits. (Doc. 4 at 15.) Plaintiff cites
Paramount Land Co. LP v. California Pistachio Comm’n, 491 F.3d 1003, 1012
(9th Cir. 2007) for this proposition, but as Defendants correctly assert, this case
does not support Cox’s contention.
Nonetheless, the Court concludes that it may indeed be a valid proposition
of law. Notably, in other circuits, the preliminary injunction test in First
Amendment cases, does indeed collapse into the merits of the claim. See,e.g.,
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Stilp, 613 F.3d at 409. Furthermore, the Court cannot find any cases where a court
has found a plaintiff is likely to succeed on the merits of its First Amendment
claim, but then found that the balance of hardships favors the defendant, and the
Defendants have not provided any authority supporting their position.
In Sanders County Republican Center Committee v. Bullock, the Ninth
Circuit, after finding that the plaintiff was likely to succeed on the merits of its
First Amendment claim, held that “[g]iven the foregoing, it is patent that the
hardships” tip in favor of the plaintiff. 698 F.3d at 748. The Sanders County
Court furthermore concluded that “[b]ecause we find that Montana’s ban on party
endorsements of judicial candidates offends the First Amendment, we conclude
that the balance of hardships favors” the plaintiff. Id. at 749. Thus, it would
appear that the balance of hardships is actually presumed to tip in favor of a
plaintiff who shows a likelihood of success on the merits of its First Amendment
claim.
Regardless, the Court concludes that the balance of the hardships here tips
in favor of Cox. Defendants wrongly claim that confidentiality in all judicial
proceedings will be lost if the Court issues the requested injunction. Not so.
Cox’s motion for preliminary injunction is narrow, as is this ruling. The motion
before the Court seeks only to enjoin Defendants from instituting contempt
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proceedings against him if he publishes his complaint and the letter he received
from the Commission informing him that the complaint had been dismissed. The
inquiry related to the complaint has been terminated for over a year. Defendants
offer no reason why the balance of hardships tips in its favor with respect to this
narrow injunction. Meanwhile, Plaintiff has established that his First Amendment
freedoms will be infringed absent an injunction. The Court concludes that the
balance of hardships favor Cox.
IV.
Public Interest
Cox contends that the public interest is served by upholding his First
Amendment rights. The inquiry into the public interest factor is largely
“subsumed within [the] analysis of likelihood of success on the merits, irreparable
injury, and balance of hardships.” Sanders County, 698 F.3d at 749. “Courts
considering requests for preliminary injunctions have consistently recognized the
significant public interest in upholding First Amendment principles.” Thalheimer,
645 F.3d at 1129 (quoting Sammartano v. First Judicial Dist. Court, 303 F.3d
959, 974 (9th Cir. 2002)).
Defendants maintain that the requested injunction will not serve the public
interest, and further argue that granting the preliminary injunction in this case will
change the status quo. But here the status quo is the protection afforded citizens
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by the First Amendment to freely criticize public officials without fear of
punishment. A preliminary injunction preserves that right, and also serves the
public interest. Defendants rightly point out the benefits to the public interest of
confidentiality in judicial review proceedings generally, but the public interest in
maintaining confidentiality at this stage is severely limited. Meanwhile, the public
interest in preserving First Amendment freedoms in political speech is wellestablished. Thus, the public interest favors Cox.
Conclusion
Because Cox has made an adequate showing on all four preliminary
injunction factors, he is entitled to a preliminary injunction enjoining Defendants
from punishing him for publishing his complaint and the dismissal letter he
received from the Commission.
IT IS ORDERED that the motion for preliminary injunction (Doc. 3) is
GRANTED. Cox may publish his judicial complaint and dismissal letter and
Defendants are enjoined from punishing him for contempt.
IT IS FURTHER ORDERED that the unopposed motion for judicial notice
(Doc. 5) is GRANTED.
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DATED this 30th day of September, 2014.
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