Mark French v. Blair Jones

876 F.3d 1228
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 7, 2017
Docket15-35990
StatusPublished
Cited by4 cases

This text of 876 F.3d 1228 (Mark French v. Blair Jones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mark French v. Blair Jones, 876 F.3d 1228 (9th Cir. 2017).

Opinion

OPINION

BYBEE, Circuit Judge:

Montanans select their judges through nonpartisan popular elections. In an effort to keep those elections nonpartisan, Montana has restricted judicial-campaign speech. One of those restrictions is before us—a rule that prohibits candidates from seeking, accepting, or using political endorsements in their campaigns. Mark French, a judicial candidate who wishes to seek and use such endorsements, claims that Montana’s rule violates his First Amendment rights," Montana argues that the rule is narrowly tailored to ensuring the impartiality and independence of Montana’s judiciary. The district court upheld the statute, and we agree. In light of the Supreme Court’s decision in Williams-Yulee v. Florida Bar, — U.S. -, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015), and our decision in Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc), we affirm the judgment.

Montana has declared that “[a]n independent, fair, and impartial judiciary is indispensable to [its] system, of justice.” Mont, Code of Judicial Conduct, Preamble (2009). Although that statement of principle must be universally acknowledged, American jurisdictions have chosen different means to secure it. See The Federalist No. 78, at 465 (C. Rossiter ed. 1961) (A. Hamilton) (arguing for the appointment of judges). Since 1935, Montana has decided to select its .judges through nonpartisan popular elections. See Mont. Code Ann. § 13-14-111. Recognizing that mixing politics with judging could lead to injustice, Montana has prohibited all judges and candidates for judicial office from “engagpng] in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Mont. Code of Judicial Conduct Canon 4. That broad prohibition applies to such activities as holding an office in 'or making speeches on behalf of a political organization, publicly endorsing political candidates, publicly identifying oneself as a political candidate, and otherwise using the names of political parties in judicial campaigns. 1 Id. Rule 4.1; Mont. Code Ann. § 13-10-602(2).

Only one restriction is at issue here. Rule 4.1(A)(7) of the Montana Code of Judicial Conduct provides: “[A] judge or judicial candidate shall, not ... seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate ....” 2 Mont. Code of Judicial Conduct Rule 4.1(A)(7). The Code defines a “political .organization” as “a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of. candidates, for political office.” Id. Terminology. If a judge or judicial candidate violates this endorsement provision, the Montana Judicial Standards Commission “shall recommend ... the censure, suspension, removal, or disability retirement of the judicial officer.”. Mont. Code Ann. § 3-1-1106(3),

In 2014, Mark French ran as a candidate for justice of the peace in Sanders County. The Sanders County Republican Central Committee endorsed French’s candidacy, and two prominent Republican officeholders were willing to consider doing so if French had asked. Afraid of violating Rule 4.1(A)(7), French refrained from seeking or using these endorsements in his campaign. He ultimately lost the election, but intends to run again in' 2018. Although French would like to seek and use political endorsements during the next election cycle, he understands that he cannot do so as long as Rule 4.1(A)(7) remains in place.

French filed this action claiming that Rule 4.1(A)(7) violates his First Amendment rights and asking that the court enjoin its enforcement. The district court rejected French’s argument and' entered summary judgment against him. We review that decision de novo. See McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016).

II

The First Amendment, applicable to the states through the Fourteenth Amendment, prohibits the- government from “abridgirig the freedom of speech.” U.S. Const. amend. I; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (incorporating “the right of free speech” into the Due Process Clause of the Fourteenth Amendment). Content-based restrictions on judicial-campaign speech are subject to strict scrutiny under the First Amendment. See Republican Party of Minn. v. White (“White I”), 536 U.S. 765, 774, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (assuming strict scrutiny applies); Wolfson, 811 F.3d at 1180 (holding that strict scrutiny applies). To survive strict scrutiny, the government must show that “the restriction ‘furthers a compelling interest and is. narrowly tailored to achieve that interest.’ ” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (citation omitted). “ ‘[I]t is the rare case’ in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest.... But those cases do arise.” Williams-Yulee, 135 S.Ct. at 1665-66 (citations omitted); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (“[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’ ” (citation omitted)).

Before determining whether Rule 4.1(A)(7) is narrowly tailored to achieve a compelling state interest, we must examine the development of First Amendment law in this murky area of judicial-campaign speech. The Supreme Court has addressed restrictions similar to Rule 4.1(A)(7) on two occasions—in White I and Williams-Yulee—providing mixed guidance on the proper analytical framework and producing some tension among the lower courts. We have addressed that tension in our en banc decision in Wolfson. Despite the confusion, we discern a clear shift in favor of state regulation—a shift that' renders many of French’s and his amicus curiae’s arguments no longer persuasive.

A

We begin our survey with White I. The Supreme Court there reviewed a Minnesota restriction on judicial elections that prohibited a candidate from “announcing] his or her views on disputed legal or political issues,” a prohibition that at the very least precluded “a judicial candidate from stating his views on any specific nonfaneiful legal question within the province of the court for which he [was] running.” White I, 536 U.S. at 768, 773, 122 S.Ct. 2528 (citation omitted). The majority began by identifying a potential compelling interest Minnesota might have had in imposing the restriction: preserving both the actual and perceived impartiality of the state judiciary. Id. at 775-76, 122 S.Ct. 2528.

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Bluebook (online)
876 F.3d 1228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-french-v-blair-jones-ca9-2017.