HELENA — A former Libertarian Party candidate for U.S. Senate may talk about a misconduct complaint he filed against a Montana judge last year without fear of prosecution, a federal judge has ordered, despite state regulations that keep such complaints secret.
Normally, a judicial complaint filed with the Montana Judicial Standards Commission is confidential unless the commission sends it to the state Supreme Court after a review. A person who files a complaint against a judge otherwise must conceal its existence or face being found in contempt.
Dan Cox, a 2012 Senate candidate, says that is an unconstitutional violation of his free-speech rights. He filed a federal lawsuit challenging the state judiciary’s rule, saying he wants to publish the judicial misconduct complaint he filed last year against District Judge Jeffrey Langton of Hamilton.
Cox plans to use the complaint, which was dismissed, to campaign for Langton’s recall or if the judge runs for re-election in 2016. Cox also plans to make the argument that the commission did not adequately investigate the claims, according to the lawsuit.
U.S. District Judge Dana Christensen on Tuesday sided with Cox, ruling the former candidate likely would win his argument that the rule unconstitutionally restricts his First Amendment rights. The lawsuit will go on, but the judge issued an injunction that allows Cox to publish the complaint against Langton, along with the commission’s response.
Cox’s complaint claimed Langton violated more than a half-dozen rules in the state’s Canons of Judicial Ethics when officiating over a parenting plan involving Cox’s child and the child’s mother. District Judge Ed McLean, chairman of the standards commission, sent Cox a letter in August 2013 saying the panel dismissed the complaint after finding no ethical violation or professional misconduct.
Langton did not return a call for comment Wednesday.
Christensen ruled Cox wants to criticize government officials, but the threat of civil or criminal prosecution prevents him from doing so.
“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,” Christensen said. “Whether such a message will persuade the voters is unclear, but it is political speech nonetheless.”
Attorneys for the five commission members named as defendants had argued the confidential process protects judges from having their reputations smeared by frivolous complaints, and protects a person who files a complaint from retribution by a judge.
Allowing Cox’s complaint to be published would end that confidentiality, the attorneys argued.
The injunction applies only to Cox and the publication of the one complaint, Christensen said in his ruling. The state has a legitimate interest in protecting judges’ reputations during ongoing investigations, but Cox’s complaint was dismissed more than a year ago, the judge said.
Defense attorney Matthew Cochenour of the Montana Department of Justice did not return a call for comment Wednesday.