Lair v. Motl

• Court: District Court, D. Montana
• Decided: August 3, 2020
• Docket: 6:12-cv-00012
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

DOUG LAIR, et al., CV 12—12—H-—CCL

Plaintiffs, ORDER VS. JEFF MANGAN’, et al., Defendants.

Before the Court is Plaintiffs’ motion for relief from the Court’s Order and

Amended judgment under Fed. R. Civ. P. 60(b)(6). The Court heard argument on

July 30, 2020. James Bopp, Jr., of the Bopp LAW FIRM, PC argued for Plaintiffs

and was accompanied by local counsel, Anita Y. Milanovich of MILANOVICH

LAw, PLLC. Matthew T. Cochenour, Acting Solicitor General for the State of

Montana argued for Defendants and was accompanied by Assistant Attorney

General Patrick M. Risken. Having reviewed the parties’ briefs and received

argument, the Court is prepared to rule.

| Jeff Mangan replaced Jonathan Motl as Montana Commissioner of Political Practices in May of 2017.

LEGAL STANDARD This Court can only reopen a final judgment under Rule 60(b)(6) when the

request is supported by “extraordinary circumstances.” Riley v. Filson, 933 F.3d

1068, 1071 (9 Cir. 2019). A “change in the controlling law can — but does not

always — provide a sufficient basis for granting relief under Rule 60(b)(6).” Henson v. Fidelity Nat’l Financial, Inc., 943 F.3d 434, 444 (9 Cir. 2019). In their briefing, both parties addressed the factors set out by the Ninth

Circuit for deciding a Rule 60(b)(6) motion in a habeas case. Phelps v. Alameida,

569 F.3d 1120 (9" Cir. 2009). Ten years after deciding Phelps, the Ninth Circuit

concluded “that many of the Phelps factors are relevant to the Rule 60(b)(6) analysis” in non-habeas cases. Henson, 943 F.3d at 440.

In Henson, the Ninth Circuit once again emphasized, as it did in Phelps, that

“courts must consider all of the relevant circumstances surrounding the specific motion before the court in order to ensure that justice be done in light of all the

facts.” Id., citing Phelps at 1133. Although the Court has considered those factors

in deciding the pending motion, it heeds the Ninth Circuit advice that the factors

set forth in Phelps are not “intended to be a rigid or exhaustive list” and has

balanced the competing policies of the finality of judgments and the need to do

justice in light of all the facts. Jd. at 446, quoting Phelps at 1133, 1135.

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DISCUSSION Although Plaintiffs claim to be seeking relief from this Court’s May 17, 2016, order (Doc. 278) and the Amended Judgment subsequently issued by the

Clerk (Doc. 280), they are actually asking the Court to set aside the Ninth Circuit’s reversal of this Court’s May 17, 2016, order and decision to reverse and remand

the case in 2015 in response to this Court’s October 10, 2012, opinion and order, (Doc. 168) which relied on the Supreme Court’s plurality opinion in Randall.

Plaintiffs argue that the Supreme Court’s November 25, 2019 per curiam

opinion in Thompson v. Hebdon constitutes a change in controlling law that

provides a sufficient basis for granting relief under Rule 60(b)(6). In Thompson, the Supreme Court answered in the affirmative the question whether the plurality opinion in Randall should be considered in deciding cases involving campaign finance restrictions. Thompson v. Hebdon 140 S. Ct. 348, 351 and n. * (2019). Defendants appear to concede that Plaintiffs’ argument might have merit, but for the fact that the Ninth Circuit already applied Randall to Montana’s limits

in both its 2015 decision reversing and remanding the Court’s 2012 opinion and

order and its 2017 decision reversing the Court’s 2016 opinion and order.

Resolving this issue requires the Court to compare the events in this case to the

events that led to the Supreme Court’s decision in Thompson.

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Procedural History — Lair v. Mangan’ Plaintiffs filed this lawsuit in the Billings Division for the District of

Montana on September 6, 2011, alleging that a number of Montana state statutes

were facially unconstitutional as they violated the First Amendment. Plaintiffs

moved for a preliminary injunction on September 7, 2011, seeking to enjoin enforcement of these statutes. However, before any action was taken on the

motion, Defendants moved to change venue and the case was transferred to the

undersigned. On February 16, 2012, the Court held a hearing on the motion for a

preliminary injunction and enjoined enforcement of Montana’s vote-reporting requirement and political-civil libel statute, Montana Code Annotated

§§ 13-35—225(3)(a), 13-37-131. The Court denied the motion as to the

remaining statutes. The Court issued its first scheduling order on March 9, 2012. The parties agreed that all of the issues regarding the contribution limits in Montana Code

Annotated § 13-37—216(1), (3), and (5) would be resolved through a bench trial

and that all other matters would be adjudicated by summary judgment.

2 The parties and the undersigned are familiar with the complex procedural history in this case as we all lived through it. The extensive background section is provided in part to assist the Ninth Circuit panel assigned to preside over the anticipated appeal of this decision. Page 4 of 14

The parties then cross-moved for summary judgment, and the Court held a

hearing on May 12, 2012. The Court granted both motions in part and denied

them in part. The Court permanently enjoined Montana’s vote-reporting requirement, political-civil libel statute, and ban on corporate contributions to

political committees used by those committees for independent expenditures. See

Mont. Code Ann. §§ 13—35—225(3)(a), 13-37-1311, 13-35-227. However, the

Court concluded that Montana’s ban on direct and indirect corporate contributions

to candidates and political parties was constitutional. Jd. at § 13-35-227. The

parties cross-appealed that order but then voluntarily dismissed the appeals on July 23, 2012. The Court held a bench trial from September 12, 2012, to September 14,

2012, in order to resolve Plaintiffs’ claims related to Montana’s campaign contribution limits in Montana Code Annotated § 13—37—216(1), (3), and (5). On

October 3, 2012, less than three weeks after the close of evidence, the Court issued

an order declaring the contribution limits unconstitutional and permanently enjoining their enforcement. (Doc. 157). The order indicated that complete findings of fact and conclusions of law would follow, but that the Court wished to

make its ultimate ruling known as far in advance of the pending November

election as possible. That same day, Defendants filed a motion to stay the Court’s

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ruling pending appeal to the Ninth Circuit Court of Appeals. The Court did not

rule on the motion immediately, instead giving Plaintiffs five days to respond. The Court ultimately denied Defendants’ motion to stay. On October 4, 2012, Defendants filed a notice of appeal of the Court’s

October 3rd order and judgment. On October 10, 2012, the Ninth Circuit motions

panel assigned to the case temporarily stayed the Court’s order and judgment pending appeal, citing the fact that the Court had yet to issue its findings of fact

and conclusions of law. That same afternoon, this Court issued its findings and

conclusions, relying primarily on the United States Supreme Court’s plurality opinion in Randall v. Sorrell, 548 U.S. 230 (2006), to find that Montana’s

campaign contribution limits do not pass constitutional muster. (Doc. 168). On October 16, 2012, the Ninth Circuit motions panel issued its full opinion granting Defendants’ motion to stay for the duration of the appeal. In essence, the

motions panel concluded that Defendants were likely to succeed on appeal because the Ninth Circuit’s decision in Montana Right to Life Association v.

Eddleman, 343 F.3d 1085 (9th Cir. 2003) [hereinafter, Eddleman], likely remained

good law despite Randall. See Lair v. Bullock, 697 F.3d 1200, 1202 (9th Cir.

2012) [hereinafter, Lair J]. ///

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On May 26, 2015, the Ninth Circuit merits panel assigned to the case issued

its opinion, which was subsequently amended and re-issued on September 1, 2015.

See Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015) [hereinafter, Lair The Lair I

court reversed and remanded, directing this Court to apply the following test from

Eddleman to the case at bar: “state campaign contribution limits will be upheld if

(1) there is adequate evidence that the limitation furthers a sufficiently important state interest, and (2) if the limits are ‘closely drawn’—.e., if they (a) focus

narrowly on the state’s interest, (b) leave the contributor free to affiliate with a

candidate, and (c) allow the candidate to amass sufficient resources to wage an

effective campaign.” 798 F.3d at 748. The Lair IJ court expressly held that

Randall did not overrule the Eddleman closely-drawn analysis “because there

simply was no binding . . . decision on that point.” Jd. at 747. However, the Lair

II court also held that the Supreme Court’s decision in Citizens United v. Federal

Election Commission, 558 U.S. 310 (2010), abrogated Eddleman to the extent the

latter relied upon an impermissible notion of what constitutes an “important state

interest” vis-4-vis contribution limits. Jd.

The Lair I court provided explicit instructions to this Court as to the

standard to apply on remand. First, having interpreted the Court’s October 10,

2012 findings and conclusions as silent on the issue of whether Defendants

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established an important state interest underlying the statutes at issue, the Lair IT

court directed the Court “either (1) to decide whether Montana has carried its

burden in showing the contribution limits further a valid ‘important state interest’

or, if the [Court] again assumes the state has carried its burden, (2) to identify expressly what interest the [Court] assumes exists.” Jd. at 748. The Ninth Circuit

also directed the Court to apply the three-part closely-drawn test from Eddleman, should it find that the contribution limits further a sufficiently important state

interest. Id. Once the Ninth Circuit’s amended mandate was issued, (Doc. 200), the

Court scheduled a status conference with the parties. Thereafter, the Court issued

a scheduling order setting a discovery deadline of February 5, 2016, a motions

deadline of March 4, 2016, a hearing on the motions for April 18, 2016, and a

bench trial date — to the extent necessary — on May 23, 2016. The Court held a

hearing on the parties’ cross-motions for summary judgment on April 18, 2016,

(Doc. 272) and issued its order granting Plaintiffs’ motion for summary judgment, declaring subsections 1 and 3 of Mont. Code Ann. § 13-37-216 unconstitutional and permanently enjoining Defendants from enforcing those subsections on May

17, 2016. (Doc. 278). An Amended Clerk’s Judgment (280) in favor of Plaintiffs

was entered immediately following filing of the order.

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Defendants appealed and the Ninth Circuit panel assigned to the case issued

its opinion reversing the Court’s judgment and holding that Montana’s

contribution limits survive constitutional scrutiny. Lair v. Motl, 873 F.3d 1170, 1187 (9" Cir. 2017) [hereinafter, Lair [IJ]. The panel in Lair III cited the plurality opinion in Randall to justify its rigorous review of the undersigned’s factual

findings and reviewed de novo the application of the law to those facts, citing Lair

Il. Lair IT at 1178. The panel then followed the Eddleman framework, as limited

by Citizens United and McCutcheon, holding that Montana “offered adequate evidence that its limits further the important state interest of preventing quid pro

quo corruption or its appearance.” Lair II/ at 1180.

Although the Lair IT panel used the Eddleman framework to decide that

“Montana’s limits are closely drawn to further the state’s important interest,” id. at

1186, the panel also considered the concerns raised by the plurality opinion in

Randall. Lair III at 1185 - 86. The panel distinguished Montana’s campaign contribution limits from those of Vermont, which were held to violate the First

Amendment in Randall, noting that the Plaintiffs in this case failed to demonstrate

that the “anti-challenger bias that animated the plurality in Randall” is present in

Montana. Jd. at 1186.

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Judge Bea wrote a dissenting opinion which addressed only the first prong of the Eddleman framework. Jd. at 1191 (Bea, J. dissenting), and voted to grant rehearing en banc. Judge Bea and three other Ninth Circuit judges joined Judge Ikuta’s dissent from the decision to deny en banc review, noting that this Court

“sot it exactly right” in holding that “Montana had not proven a sufficiently important state interest in preventing actual or apparent quid pro quo corruption.” Lair v. Motl, 889 F.3d 571 (9" Cir. 2018) (Ikuta, J. dissenting), and the Supreme Court denied certiorari. Lair v. Mangan, 139 S. Ct. 916 (2019). No party at that time requested a revised judgment and the Ninth Circuit had

reversed the case without remanding so the Court did not issue a revised judgment following the Supreme Court’s denial of certiorari. The Court resolved the only motion then pending before it by denying Plaintiffs’ motion for attorney’s fees and

costs. (Doc. 315). Procedural History — Thompson v. Dauphinais® On April 25, 2016, United States District Judge Burgess of the District of

Alaska conducted a bench trial in Thompson v. Dauphinais, a case in which three

individual plaintiffs and District 18 of the Alaska Republican Party challenged

3 In addition to reviewing the three published decisions in Thompson, the Court obtained the Ninth Circuit’s Docket Report for Appeal No. 17-35019. References to docket entries from that report will use Dkt. Page 10 of 14

“the constitutionality of four provisions of Alaska’s campaign finance laws under

the First and Fourteenth Amendments.” 217 F. Supp.3d 1023, 1026 (D. Alaska

2016). Judge Burgess relied on Lair I and refused to “apply the two-part, multi-

factor ‘closely drawn’ test articulated by the Supreme Court in Randall v. Sorrell

rather than the test laid out by the Ninth Circuit Court of Appeals in Eddleman.”

Id. at 1031, citing Lair II. Based on that analysis and without considering the

Randall test, Judge Burgess upheld the challenged provisions of Alaska’s

campaign finance laws. Id. at 1039. On November 27, 2018, the Ninth Circuit issued its opinion affirming Judge Burgess as to the constitutionality of three of the four challenged provisions of

Alaska’s campaign finance laws and reversing his decision as to “the nonresident

aggregate contribution limit.” Thompson v. Hebdon, 909 F.3d 1027, 1044 cg" Cir. 2018). The plaintiffs in Thompson relied heavily on Randall and the Ninth

Circuit panel assigned to decide Thompson acknowledged that “Justice Breyer’s plurality opinion in Randall, if binding, may aid Thompson’s position because at

least one of the ‘warning signs’ identified in Randall is present here.” The panel relied on both Lair IJ and Lair III to reject plaintiffs’ argument, noting that the

Ninth Circuit in those cases had determined that “Randall is not binding authority

because no opinion commanded a majority of the Court.” /d. at 1037, n. 5. One

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judge’s sua sponte request for en banc hearing was withdrawn after the parties filed supplemental briefing, (Dkt. 78) and the mandate issued on Feb. 20, 2019.

Nine months after the Ninth Circuit mandate issued, the Supreme Court

granted the plaintiffs’ petition for certiorari, vacated the Ninth Circuit’s judgment and remanded the case for the Ninth Circuit “to revisit whether Alaska’s

contribution limits are consistent with our First Amendment precedents.” Thompson, 140 S.Ct. at 351. It is clear from the following footnote that the Court

intends the Ninth Circuit to consider Randail in its review. “The court below

declined to consider Randall ‘because no opinion commanded a majority of the

Court,’ instead relying on its own precedent predating Randall by three years. Courts of Appeals from ten Circuits, however, correctly looked to Randall in

reviewing campaign finance restrictions.” Jd. at n. * (citations omitted). The

Ninth Circuit has yet to issue an opinion in connection with the remand order.

Comparison and Conclusion There is now no doubt that this Court was correct to apply the Randall

factors when it first considered Montana’s campaign contribution limits, thanks to

the Supreme Court’s recent decision in Thompson. Unlike the plaintiffs in

Thompson, however, Plaintiffs in this case cannot argue that the Ninth Circuit

completely failed to consider Randall when reviewing this Court’s orders.

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The panel in Lair III, perhaps recognizing that its refusal to address Randall

could result in a successful petition for certiorari, covered its bases by stating “we

would reach the same conclusions under the plurality’s decision in Randall.” Lair

at 1186. The majority opinion in Lair II relied on the motions panel that

decided Lair I, noting that the “motions panel in Lair J addressed each of these

‘danger signs’ and ‘considerations’ at length, concluding that Randall likely ‘would not have mandated a different result in Eddleman.’” Id. at 1187. The

majority opinion goes on to provide its basis for agreement with the conclusion

reached by the Lair J motions panel. Jd. The only “change in controlling law” mandated by the Supreme Court’s

decision in Thompson requires district courts and courts of appeal to apply the

Randall factors. This Court and the Ninth Circuit both considered Randall, but

reached vastly different conclusions. While this Court may agree with Plaintiffs

that its own analysis of the Randall factors is superior to that of the Ninth Circuit,

it cannot ignore the fact that Plaintiffs had the opportunity to raise this issue in

both their petition for rehearing en banc and their petition for a writ of certiorari.

The Supreme Court’s decision to remand Thompson so that the Ninth Circuit

could consider Randall does not require reversal of a Ninth Circuit decision that

did consider Randall. Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ 60(b)(6) motion for relief (Doc. 316) is DENIED. 3th Dated this ~day of August, 2020. (4 MAMA f* VERS

Senior Uni Ke tates District Judge

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