Cox v. JSC Members McLean, Jones, Valgenti, Murphy, and Schleif

JUDICIAL STANDARDS COMMISSION preliminarily enjoined from contempt proceedings if Plaintiff discloses complaint against Judge and letter notifying of dismissal… Christensen.

Dan Cox, Libertarian nominee for US Senate in 2012, filed a complaint with the Judicial Standards Commission against a state district judge in 6/13. The JSC determined that no ethical violation or misconduct in violation of the CJE had occurred and dismissed the complaint. It reminded Cox of its Rule 7(c) confidentiality requirements adopted pursuant to MCA 3-1-1105(2). Cox’s attorney asked the JSC if it intended to subject Cox to contempt proceedings if he published his complaint and letter informing him of the dismissal. The JSC responded that it would appoint a judge to conduct a contempt hearing if Cox breached confidentiality of the complaint. Cox intends to seek recall of the judge named in the complaint as well as oppose the judge if he/she seeks reelection, and desires to publish the complaint and JSC letter as part of his election efforts, but will not do so while there remains a contempt threat. He requests a preliminary injunction to enjoin the JSC from prosecuting him for publishing the complaint and letter.

Cox makes a colorable claim that his 1st Amendment rights have been infringed. He is restricted by threat of civil or criminal prosecution from criticizing government officials and a government body for political reasons. Political speech “occupies the core of the protection afforded by the First Amendment.”McIntyre (US 1995). Defendants fail, under strict scrutiny, to justify the restrictions on his speech. They assert state interests favoring confidentiality including that it encourages filing of complaints and protects against possible judicial recrimination, protects judges against unwarranted complaints, maintains confidence in the judiciary by avoiding premature announcement of frivolous complaints, and facilitates the JSC’s work by allowing judges faced with justified complaints to resign or retire. These are the same interests advanced by the losing party in Landmark Communications (US 1978). Montana, like Virginia, has an interest in protecting the reputation of its judges and enhancing the public’s perception of the judiciary. However, USSC cases have clearly established that injury to official reputation is not a basis for “repressing speech that would otherwise be free.” Sullivan (US 1964).

Defendants make little attempt to independently meet their burden of proof. Critically, none of the cases they cite, nor any the Court can find, provides any support for their position that a perpetual ban on Cox publishing his dismissed complaint and the dismissal letter is consistent with 1st Amendment rights. Indeed, the case which appears to provide them the most promise, Kamasinski (2nd Cir. 1994), makes absolutely clear that such a perpetual ban violates the 1st Amendment. It held that a limited ban on disclosure of the fact of filing a complaint or the fact that testimony was given was consistent with the 1st Amendment, but only while an investigation was ongoing. “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 have come to the same conclusion. The JSC concedes that Cox may freely criticize the judge and publicly raise the same issues, subject to defamation laws, but maintains that state interests are served by prohibiting him from disclosing existence of the complaint and its dismissal. Even case law cited by Defendants is directly at odds with their position. The Court concludes that Cox is likely to succeed on the merits of his as-applied challenge.

Defendants’ argument 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, not just the complaint itself, misses the point that he desires to criticize the judge and the JSC which he believes failed to adequately investigate his complaint. He apparently wants to make the case to voters that because the JSC will not remove the judge, the electoral process is the only means to accomplish this. Whether such 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 their purported justification for the restriction in the first place. Stilp (3rd Cir. 2010). Cox is likely to suffer irreparable harm absent an injunction.

The Court cannot find any cases where a court has found that a plaintiff is likely to succeed on the merits of a 1st Amendment claim but then found that the balance of hardships favors the defendant, and Defendants have provided no authority supporting their position. Regardless, the balance of the hardships tips in favor of Cox. Defendants wrongly claim that confidentiality in all judicial proceedings will be lost if the Court issues the injunction. However, the motion only seeks to enjoin Defendants from contempt proceedings against him if he publishes his complaint and the dismissal letter. Defendants rightly point out the benefits to the public interest in maintaining confidentiality in judicial review proceedings generally, but the public interest in maintaining confidentiality at this stage is severely limited, while the public interest in preserving 1st Amendment freedoms in political speech is well-established.

Cox has made adequate showing on all 4 preliminary injunction factors. He may publish his complaint and dismissal letter and Defendants are enjoined from punishing him for contempt.

Cox v. JSC Members McLean, Jones, Valgenti, Murphy, and Schleif, 42 MFR 39, 9/30/14.