and Submitted June 16, 2017 Seattle, Washington
from the United States District Court No. 4:14-cv-00057-SEH
for the District of Montana Sam E. Haddon, Senior District
Matthew G. Monforton (argued), Monforton Law Offices PLLC,
Bozeman, Montana, for Plaintiff-Appellant.
Schowengerdt (argued), Solicitor General; Mark W. Mattioli,
Assistant Attorney General; Montana Department of Justice,
Helena, Montana; for Defendants-Appellees.
Elizabeth Arias (argued), Corey Collins, and Eugene Lim, Law
Students; Eugene Volokh (argued), Supervising Attorney; Scott
& Cyan Banister First Amendment Clinic, UCLA School of
Law, Los Angeles, California; for Amicus Curiae Center for
V. Timofeyev, Adam Weiss, and Danielle R.A. Susanj, Paul
Hastings LLP, Washington, D.C.; Karl J. Sandstrom and David
J. Lazarus, Perkins Coie LLP, Washington, D.C.; Keith R.
Fisher, National Center for State Courts, Arlington,
Virginia; for Amicus Curiae Conference of Chief Justices.
Before: Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges,
and Jennifer A. Dorsey, [*] District Judge.
panel affirmed the district court's summary judgment in
an action brought by Mark French, a Montana judicial
candidate, who alleged that Montana's campaign-speech
rule, which prohibits judicial candidates from seeking,
accepting, or using political endorsements in their election
campaigns, violated his First Amendment rights.
panel held that Montana has compelling interests in an
impartial and independent judiciary and that Rule 4.1(A)(7)
of the Montana Code of Judicial Conduct was narrowly tailored
to those interests. The panel held that Rule 4.1(A)(7) struck
an appropriate balance between a candidate's speech and
Montana's interest in an independent and impartial
judiciary. The panel held that French's arguments to the
contrary were foreclosed by the Supreme Court's decision
in Williams-Yulee v. Florida Bar, 135 S.Ct. 1656
(2015), and this Circuit's decision in Wolfson v.
Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc).
panel rejected French's arguments that Rule 4.1(A)(7) was
fatally underinclusive. The panel held that: (1) an
endorsement from a political party threatened the public
perception of judicial independence to a greater degree than
an endorsement from an interest group; (2) Montana could
reasonably conclude that political endorsements were more
suggestive of a quid-pro-quo exchange than donations; and (3)
it made sense for Montana to prohibit the solicitation and
use of endorsements during a judicial candidate's
campaign and to limit those endorsement to political office
holders and entities. The panel further held that the seeking
and using of political endorsements was distinct from
announcing one's views on certain issues.
panel rejected French's argument that Rule 4.1(A)(7) was
overinclusive because Montana does not allow the
candidates' campaign committees to seek and use political
endorsements. The panel held that Montana had reasonably
determined that both candidates and their committees posed a
threat to its judiciary when they sought, accepted, or used
political endorsements in their campaigns.
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, 135 S.Ct. 1656 (2015), and our decision in
Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016)
(en banc), we affirm the judgment.
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
"engag[ing] 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. Id. Rule
4.1; Mont. Code Ann. § 13-10-602(2).
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 . . .
."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.
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.
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).
First Amendment, applicable to the states through the
Fourteenth Amendment, prohibits the government from
"abridging the freedom of speech." U.S. Const.
amend. I; Stromberg v. California, 283 U.S. 359, 368
(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 (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 (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