Lawyer Vendetta Winds Up in Montana Federal Court

HELENA, Mont. (CN) — After a lawyer lost his bid to disqualify a judge in a child custody case, the matter turned into a long-running vendetta that culminated in the lawyer's campaign to unseat the judge, using attack ads on a talk radio station in Montana.

The ads prompted an investigation by Montana's Office of Disciplinary Counsel, and then a First Amendment complaint in Federal Court. The lawyer handling the First Amendment case has cast the events in broad political terms, saying the state is trying to squelch free speech by conservatives.

It all started in 2012 when Robert Myers, an attorney from Hamilton, Mont., was representing a husband in child custody litigation. He tried to recuse Ravalli County District Judge Jeffrey 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. Myers apparently saw file notes, later removed by a file clerk that substantiated his claim of an instruction to the judge's assistant.

Langton denied the recusal motion.

Myers persisted, taking the matter to the Montana Supreme Court, which also ruled against him. He then filed a complaint with the Montana Judicial Standards Commission in 2013, which was dismissed.

In 2014, Langton quashed Myers' effort to depose him, and ultimately sanctioned him $10,000. In doing so, Langton took into consideration the income of the attorney's wife, who is a doctor.

"For a lawyer living on a lawyer's and doctor's combined incomes, the court determines that a sanction of $1,000, or $5,000 or even $7,500 would constitute no more than a sting, or a nuisance penalty," Langton said at the time. "A sanction of $10,000, however, would constitute a bite, which the Court believes Mr. Myers would be more likely to take seriously."

This year Myers declared that he would try to unseat the judge, and in April and May ran attack ads on radio station KGVO. Based in Frenchtown, Mont., the former country western station has been converted to news-talk format by Townsquare Media, which owns an extensive chain of radio stations and is publicly traded. The station broadcasts Rush Limbaugh's syndicated show, among others.

The ads recycled the claim of an ex parte communication, saying the judge had "committed fraud on the court." The ads stated: "Not only did Jeff Langton not allow a neutral judge to look at his conduct, but he stopped all witnesses, including himself, from being questioned. He, of course, found himself innocent without a hearing. No judge should judge his own conduct."

Montana's campaign laws prohibit attorneys from making comments or statements about judges "that the state deems false."

In late May, Myers received an email from Montana's Office of Disciplinary Counsel, the agency that investigates attorneys accused of ethical violations. In the email, the office asked for copies of campaign materials. The request included "all television or radio advertisements, with written transcripts, aired by your campaign," "invoices and publishing contracts related to all advertising materials, including the publishing dates and frequency of all materials" and "any internet/social network posting by yourself, your campaign, or affiliated campaign committees/groups."

That demand is the foundation for Myers' June 6 federal complaint against Chief Disciplinary Counsel Shaun R. Thompson. Myers is represented by Matthew Monforton, of Bozeman. The case is being heard by U.S. District Judge Donald Molloy, who was appointed by President Bill Clinton in 1996.

According to the 20-page lawsuit, Myers asked Deputy Disciplinary Counsel Jon Moog for a copy of the disciplinary complaint against him, and a list of the regulations he was supposed to have violated. Moog replied that there was no complaint, rather a transcript of the radio ad sent by Langton's law clerk. Moog said the investigation was in its early stages and that he could not yet identify what statutes or rules Myers may have violated.

Myers says in his lawsuit: "Judicial candidates should not be forced to choose between exercising their fundamental right to criticize their opponents or keeping their law licenses."

Monforton said his client had been silenced as a result of the investigation. He said in an interview that his client intends to raise the judge's problems with alcohol, for example, but has been muzzled.

"Revealing that information to the public will come later in the campaign, but right now he is hesitant to say anything that criticizes Judge Langton," Monforton said. "It wouldn't be a Montana election if a conservative candidate wasn't being censored. Montana has a proliferation of statutes that censor campaign speech that are applied to conservative candidates. This is just one small example of conservatives' speech being censored. It has gone on for decades."

Monforton conceded that other states have similar campaign laws, but said Montana is particularly vigilant about enforcing them.

"Other states have statutes prohibiting false statements about judges, but no state enforces those statutes as rigorously as Montana does," he said. "Montana has a left-wing contingency and they, by and large, rule this state."

Political power in Montana is split among the two major parties. Both houses of Montana's Legislature are dominated by Republicans. Its lone congressman is Republican, while the U.S. senators are split. At the state level, however, Montana's governor is a Democrat and most statewide offices are held by Democrats.

Judge Langton said in an interview that the disciplinary investigation is warranted.

"Some of the ads he was running were essentially repeating or reiterating accusations that he had made in my court, for which I sanctioned him under Rule 11. And the ODC, I don't know if they had actually filed a complaint against him based on the radio ads. But they seemed improper to me because it dealt with the same subject matter he was being disciplined for."

As for the 2005 arrest for driving under the influence, Langton said it's old news.

"He's already trotted that out and I already went through an election cycle, and was re-elected after that in 2010, so I know he's dredged that up and I certainly don't deny it," the judge said.

A representative for the Office of Disciplinary Counsel said neither deputy Moog nor chief Thompson would comment.

Myers seeks declaratory judgment that prosecuting attorneys for making allegedly false statements about incumbent judges violates the First Amendment; that prohibiting attorneys from engaging in certain forms of campaign speech while permitting others to do so violates the Equal Protection Clause of the Fourteenth Amendment; that Canon 4.1(A)(10) and of the Montana Code of Judicial Conduct and Rule 8.2(a) of the Montana Rules of Professional Conduct are unconstitutional; and an injunction against enforcement of the canons, plus costs of suit.

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