Judicial-Campaign Fight Heads to 9th Circuit

     HELENA, Mont. (CN) – A federal judge has denied Montana’s Chief Disciplinary Counsel motion to dismiss claims that its enforcement of state campaign laws is unconstitutional, and also rejected a judicial candidate’s request for an injunction against the enforcement.
     Attorney Robert Myers sued the state’s Chief Disciplinary Counsel Shaun Thompson in early June, claiming Canon 4.1(A)(10) of the Montana Code of Judicial Conduct and Rule 8.2(a) of the Montana Rules of Professional Conduct have “stymied” his ability to effectively campaign against incumbent Ravalli County District Judge Jeffrey Langton.
     Montana’s campaign laws prohibit attorneys from making statements about judges “that the state deems false.”
     Myers, of Hamilton, says the state’s threatened enforcement of the laws prevents him from rebroadcasting a “truthful” ad about a child custody case in which Myer’s represented the husband.
     The state sought dismissal on several grounds, including lack of standing and ripeness, but U.S. District Judge Donald Molloy on Tuesday denied both motions.
     Myers’ attorney said he will appeal to the Ninth Circuit and ask for an expedited hearing, as Election Day is approaching.
     In the underlying child-custody dispute Myers tried to recuse Langton, saying the judge had instructed an administrative assistant to tell the wife to file an amended parenting plan. Myers said the judge had thus authorized an ex parte communication.
     The matter turned into a long-running feud, culminating in Myers’ campaign to unseat Langton, and the state’s threat to enforce its campaign laws, with potential for disbarment.
     On June 6, Myers sued Chief Disciplinary Counsel Thompson in Federal Court, stating: “Judicial candidates should not be forced to choose between exercising their fundamental right to criticize their opponents or keeping their law licenses.”
     He sought a preliminary injunction, claiming Montana’s laws unjustly put him in the position of deciding whether to rebroadcast his ad or face discipline and possible disbarment.
     The state filed a motion to dismiss Myers’ claims for lack of standing and ripeness, saying he cannot bring his “as-applied” challenges because he hasn’t suffered an “injury of fact” and because the challenges are not ripe based on the absence of a formal Office of Disciplinary Counsel complaint.
     Judge Molloy denied both motions.
     “Contrary to the defendant’s position, Myers faces a credible threat of prosecution if he continues to broadcast an ad that is conceivably false in several respects,” Molloy wrote in a 23-page order. “And, there is a substantial controversy between him and ODC. Even so, after listening to arguments and reading the briefs, Myers is unlikely to succeed on the merits of his claim … Because Myers is unlikely to succeed on the merits of his claim, his motion is denied.”
     Molloy also denied the state’s motion to dismiss based on Myers’ standing.
     “Myers has alleged ‘an intention to engage in a course of conduct arguably affected with a constitutional interest,'” the judge wrote. “Myers states that he ‘desires to again broadcast the radio advertisement’ and intends to run for office again in the future even if he is unsuccessful this election cycle. Myers’ intended future conduct is ‘arguably … proscribed by [the rules] he wishes to challenge … because Montana’s false statement provisions cover the subject matter of his speech. While Myers presents no evidence of a history of past enforcement of these particular provisions, he did receive an email from ODC clearly stating that ‘there will be consequences for untruthful (or reckless disregard for the truth) advertisements in violation of the Rules, which will withstand constitutional scrutiny.’ Myers faces a sufficiently credible threat of prosecution as to have standing.”
     Molloy also rejected the state’s assertion that Myers’ claims are not ripe for adjudication.
     “A troubling conundrum exists if ODC can actively investigate Myers and threaten him with prosecution but at the same time avoid judicial review of the constitutionality of the rules it seeks to enforce,” Molloy wrote. “Additionally, the ‘fitness’ and ‘hardship’ requirements of standing are met because the factual record is sufficiently developed and Myers will suffer hardship if this matter were not heard due to timing of the case in an election year. Accordingly, the defendant’s motion to dismiss Myers’ as-applied challenges for lack of standing and ripeness is denied.”
     Molloy also rejected the state’s motion to dismiss under the Younger doctrine (Younger v. Harris, 1971), which “instructs federal courts to abstain from granting injunctive or declaratory relief when such relief would interfere with pending state or local proceedings.”
     Citing Sprint Comms., Inc. v. Jacobs (2013), Molloy said that “the Supreme Court has since cautioned that a federal court’s obligation to hear and decide a case is ‘virtually unflagging’ and that ‘[p]arallel state-court proceedings do not detract from that obligation.'”
     He said the Ninth Circuit holds that Younger abstention in civil cases is appropriate only when the state proceedings “(1) are ongoing, (2) are quasi-criminal enforcement action or involve a state’s interest in enforcing the orders and judgments of its courts, (3) implicate an important state interest, and (4) allow litigants to raise federal challenges.”
     “Only if those threshold requirements are met should courts consider whether a federal action would have the practical effect of enjoining the state court action … (T)his case does not involve a parallel criminal proceeding and there is no state order or judgment to be enforced,” Molloy ruled. “While a proceeding before the ODC has the potential to be ‘akin to criminal proceedings,’ investigation into the case has not progressed beyond the investigations stage.”
     Myers’ attorney, Matthew Monforton in Bozeman, said he will appeal to the Ninth Circuit.
     “We are likely going to appeal the ruling on the same grounds we raised with the district court, that Myers has the right to engage in campaign speech,” Monforton told Courthouse News on Thursday.
     “We are going to have to ask for an expedited appeal because the election is three months away and, on average, an appeal takes about two years. We are working on this night and day.”
     Andres Haladay, representing the state, did not return a phone call Thursday afternoon.

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