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A recently elected judge for district court in Lake and Sanders counties will not take the oath of office in order to focus on defending himself from criminal drug charges.
Kenneth Britton “Britt” Cotter, 48, faces three counts of felony charges, one count of solicitation to commit criminal distribution of dangerous drugs and two counts of attempted criminal possession of cocaine.
An affidavit filed by the state said Cotter has no prior criminal history.
His arraignment is scheduled for Jan. 8, 2025, according to the Montana Attorney General’s Office.
If convicted of the charges, Cotter could face a maximum 35 years in the Montana State Prison and a $60,000 fine, according to penalties in a court filing.
A Dec. 23 court document alleges the drug purchases, citing text messages from Cotter in 2022 and noting Venmo confirmed Cotter made two payments that year, one for $900 and one for $1,200.
In a letter dated Dec. 22, Cotter told Chief Justice Mike McGrath he made the “difficult decision” to not take the oath of office. He said he plans to defend himself and his reputation.
“It has come to my attention that I am the subject of criminal charges brought against me by the Division of Criminal Investigation and the Attorney General’s Office of the State of Montana,” said the letter, provided to the Daily Montanan by the Montana Supreme Court. “Defending myself against these charges will require my full time, effort and resources as I work to protect my family and myself from the harm these allegations have already caused and will continue to cause.”
Cotter is a defense and civil attorney who has had a private practice based in Polson since 2009.
In November, Cotter ran unopposed to serve as district court judge in Lake and Sanders counties after embattled Judge Deborah Kim Christopher announced her resignation in April 2024.
To fill the gap between the time Christopher resigned and the newly elected judge taking office in January 2025, Gov. Greg Gianforte appointed former Republican legislator and Board of Regents member John Mercer as judge for the district.
Mercer said Thursday the job has been challenging, but he is leaning toward applying for a reappointment in part because he believes the work is important public service.
“I think my time in the community will help with stability and confidence in the judiciary,” Mercer said.
Court documents and a news release from the Attorney General’s Office said charges against Cotter came about after the Division of Criminal Investigation launched a separate investigation into a contracted attorney for the Office of the State Public Defender.
That investigation, into fraudulent billing practices, started in spring 2024 and is ongoing, according to court documents and the news release.
However, in the course of the separate investigation, DCI obtained documentation and communication related to that attorney’s billing practices, and they included text messages with Cotter, according to a court document.
That attorney is identified as “A. Doe” in the court record.
A spokesperson for Cotter said A. Doe was not and never has been a client of Cotter’s.
The text messages in the affidavit include exchanges from 2022 about drug deals.
In March 2022, A. Doe asks Cotter, “3 balls, yes?” and Cotter says “Yes,” according to the affidavit; it notes DCI indicates a “ball” of cocaine is 3.5 grams.
On May 31, 2022, Cotter asks if A. Doe is placing another order, and she asks about getting “in on those blue vitamins,” according to the affidavit. It says Cotter replied, “I’ll get you some,” and it notes DCI indicates “blue vitamins” are a term for fentanyl.
The affidavit notes that in 2022, a search warrant issued to Venmo confirmed a $900 payment from Cotter to A. Doe for “Legal Fees” and a $1,200 payment from him to Doe for “Work.”
The affidavit outlines other exchanges in 2023 and 2024.
In May 2023, A. Doe and Cotter exchange texts about an Office of Disciplinary Counsel issue she was involved in, according to the affidavit.
In March 2024, A. Doe sends Cotter a text congratulating him on his judicial campaign announcement “and telling him about OPD trying to deny payment of late invoices.”
In November 2024, DCI agents met with Cotter at his office, and he confirmed A. Doe was a friend of his, but he said “it had been several years since he had seen” her, according to the affidavit.
It said he confirmed he knew Doe had a substance-abuse issue “but refused to discuss it further.”
“DCI agents asked the defendant if he had a substance-abuse issue. The defendant said, ‘No,’” said the affidavit. “When asked if he had ever purchased drugs from A. Doe, the defendant said no and ended the conversation.”
According to the affidavit, the agents said they had found evidence of drug activity and would like to interview him about it again.
It also said that in the course of the fraud investigation, Flathead County District Court Judge Amy Eddy reviewed an affidavit, was interviewed by DCI agents, and confirmed she had spoken with Cotter about the material in the affidavit “pertaining to his cocaine use.”
“She was greatly concerned by this information since she is aware that the defendant is the judge-elect for Lake County District Court,” said the affidavit filed in the case against Cotter.
The affidavit said she called Cotter on Nov. 18, and he admitted he “‘bought cocaine from (A. Doe) a long time ago’ and said he stopped when he decided to run for judge. The defendant also told Judge Eddy that ‘I want to do the right thing and not embarrass the judiciary.’”
Eddy told Cotter she would make a report to the Judicial Standards Commission, according to the affidavit. At a training for new judges on Nov. 19, Cotter asked Eddy if she wouldn’t file a complaint, but she said she “had an ethical obligation to report.”
The law office of Colin Stephens, representing Cotter, declined to comment on the case.
Through a spokesperson, Cotter declined to answer questions, including whether he has a substance-use problem or has sought treatment.
The case was assigned to District Judge Jennifer Lint of Ravalli County, according to the Attorney General’s Office.