Myers v. Cotter

ROBERT MYERS, Plaintiff, v. MICHAEL COTTER, in his official capacityas Chief Disciplinary counsel for the State of Montana, Defendant.

CV 16-45-H-DWM-JCL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

August 30, 2017

FINDINGS & RECOMMENDATION

Attorney Robert Myers brings this action for declaratory and injunctive relief seeking a determination that certain rules of professional conduct prohibiting false statements by and about judicial candidates are unconstitutional on their face and as applied under the First and Fourteenth Amendments to the United States Constitution. Myers has moved for partial summary judgment on his claim that these regulations are facially unconstitutional under the First Amendment, and Defendant Michael Cotter (the State) has cross-moved for summary judgment on all claims.

For the reasons set forth below, Myers' motion for partial summary judgment should be denied, the State's motion for summary judgment granted, and this matter dismissed.

I. Background

Myers is an attorney who represented Daniel Cox in a parenting plan dispute in the Montana Twenty-First Judicial District Court. Cox v. Cox, 348 P.3d 673 (Mont. 2015) (table). District Judge Jeffrey Langton presided over the case. In June 2014, Judge Langton sanctioned Myers for violating Montana Rule of Civil Procedure 11(b) in several ways, including making "unsupported legal and factual allegations" and submitting filings "for an improper purpose" in the Cox matter. Myers v. Twenty-First Judicial District of Mont., 353 P.3d 506 ¶ 4 (Mont. 2015) (table); (Doc. 50-1). The Montana Supreme Court upheld the sanction order on appeal, finding that "Myers' baseless factual contentions and use of inflammatory language has no place in our legal process and, standing alone, would justify sanctions." Myers, 353 P.3d 506 ¶ 11. The Montana Supreme Court also affirmed Judge Langton's decision resolving the parenting plan dispute. Cox, 348 P.3d 541.

Several months after the Montana Supreme Court's decisions in Myers and Cox, Myers filed a statement of candidacy so that he could run against Judge Langton for the position of district judge for the Montana Twenty-First Judicial District Court in the 2016 general election. During the course of his campaign, Myers caused a radio advertisement to be aired that criticized Judge Langton'sconduct while presiding over the parenting plan dispute in the Cox matter. The advertisement was narrated by Dan Cox and stated:

This is Dan Cox and I have a warning for you. I caught Judge Jeff Langton committing fraud on the court. He was secretly communicating with attorneys for the other party. He denied me a chance to respond and prevented me from fully presenting my case. Robert Myers was the only attorney who helped me stand up to this corruption. All I was asking for was a new judge to determine how his conduct affected my ability to have a fair hearing. 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. Shame on Jeff Langton for retaliating against my lawyer, and shame on Jeff Langton for not giving me and my children a fair hearing. Paid for by Myers for Judge.

(Doc. 50, at 3). The campaign advertisement was broadcast several times from late April 2016 through late May 2016 on a radio station in Missoula.

On July 16, 2016, the Montana Office of Disciplinary Counsel ("ODC") filed a complaint against Myers charging him with professional misconduct based on several of the statements contained in his campaign advertisement. (Doc. 50-2). ODC alleged violations of Rules 8.2(a) and 8.4(c) of the Montana Rules of Professional Conduct (Rule) and Canon 4.1(A)(10) of the Montana Code of Judicial Conduct (Canon).

Rule 8.4(c) provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Rule 8.2(a) states more specifically that "[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsityconcerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office." Subsection (b) of that rule further provides that "[a] lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct," implicating Canon 4. Canon 4.1(A)(10) states that "[a] judge or judicial candidate shall not...knowingly or with reckless disregard for the truth, make any false or misleading statement."

In June 2016, Myers commenced this action challenging the constitutionality of Rule 8.2(a) and Canon 4.1(A)(10) and moved for a preliminary injunction to enjoin the state from enforcing the regulations. (Docs. 1, 5). Presiding United States District Court Judge Donald W. Molly denied the motion for a preliminary injunction on the ground that Myers had not established he was likely to succeed on the merits of his constitutional challenges. (Doc. 19).

In September 2016, Myers filed a Second Amended Complaint again challenging the constitutionality of Rule 8.4(c). (Doc. 40). The Second Amended Complaint asserts two claims for relief, the first of which alleges that Rules 8.2(a), Rule 8.4(c), and Canon 4.1(A)(10) violate the free speech clause of the First Amendment to the United States Constitution both on their face and as applied to his campaign advertisement. (Doc. 40, ¶ 92). Myers' second claim for relief asserts that Rule 8.2(a) and Canon 4.1(A)(10) violate the equal protection clause of theFourteenth Amendment to the United States Constitution both on their face and as applied to his campaign advertisement. (Doc. 40, ¶ 100).

Myers moves for partial summary judgment on his claim that Rule 8.2(a) and Canon 4.1(A)(10) are facially unconstitutional under the First Amendment. Myers does not move for summary judgment on his challenge to Rule 8.4(c).¹ Myers further makes clear that he is not seeking summary judgment on any of his as-applied challenges or on his claim that Rule 8.2(a) and Canon 4.1(A)(10) violate the equal protection clause of the Fourteenth Amendment. The State has cross-moved for summary judgment on all claims.

II. Summary Judgment Standards

Under Federal Rule of Civil Procedure 56(c), a party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A movant may satisfy this burden where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986). Once the moving party has satisfied his burden, he is entitled to summary judgment if thenon-moving party fails to designate by affidavits, depositions, answers to interrogatories or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Cattrett, 477 U.S. 317, 324 (1986).

In considering a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9^th Cir. 2007).

The State filed its motion for summary judgment on May 30, 2017, and Myers' response was due 21 days later. Local Rule 7.1(d)(1)(B)(I). As of the date of these Findings and Recommendation, however, Myers has not filed a brief in response to the State's motion. Local Rule 7.1(d)(1)(B) provides that a "failure to file a response brief may be deemed an admission that the motion is well-taken." But the Ninth Circuit has made clear that a district court may not grant "summary judgment simply because a party fails to file an opposition or violates a local rule" and must "analyze the record to determine whether any disputed material fact [is] present." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9^th Cir. 2010). See also Martinez v. Stanford, 323 F.3d 1178, 1182 (9^th Cir. 2003) ("a nonmoving party's failure to comply with local rules does not excuse the moving party'saffirmative duty under Rule 56 to demonstrate its entitled to judgment as a matter of law"). Notwithstanding Myers' failure to respond, the Court will thus consider whether the State has met its summary judgment burden of showing that there are no material issues of fact and that it is entitled to judgment as a matter of law.

III. Discussion

A. Facial Challenges

1. Historical Categories

Myers first argues that Rule 8.2 and Canon 4.1(A)(10) are unconstitutional because they regulate speech that does not fall within one of the historical categories exempted from First Amendment protection. It is well established that some categories of expression are exempted from First Amendment protection, such as obscenity, defamation, incitement, and fighting words. See, e.g., United States v. Alvarez, 638 F.3d 666, 670 n. 2 (9^th Cir. 2011). Myers takes the position that Rule 8.2 and Canon 4.1(A)(10) are unconstitutional because they regulate campaign speech, which does not fall into any of the historically recognized exempt categories. For support, Myers relies entirely on one sentence from Justice Kennedy's concurrence in Republican Party of Minn. v. White, 536 U.S. 765 (2002). The majority in White applied strict scrutiny to a content-based speech prohibition for judicial candidates, but Justice Kennedy stated in his concurrence that he would go further and hold that "content-based speech restrictions that...