9th Circuit Applies Strict Scrutiny, Upholds Restriction on Judges and Judicial Candidates

A provision of the Montana Code of Judicial Conduct that prohibits judicial candidates from using political party endorsements does not violate the First Amendment, a three-judge panel of the 9th U.S. Circuit Court of Appeals has ruled recently in French v. Jones.

Mark French challenged the provision as a violation of the First Amendment.  French had run for Justice of the Peace in Sanders County and had received the endorsement of the Sanders County Republican Party Committee.

However, the Montana Code of Judicial Conduct provides that 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.”

Because of the Montana rule, French did not reveal that information to the voters.  He lost the election but intends to run again in 2018.

He challenged the restriction in federal court, contending it violated the First Amendment.  French has solid grounding for his lawsuit based on at least three core First Amendment principles.

First, political speech is supposed to be the core type of speech protected by the First Amendment.   Second, the public should have the right to receive information and ideas about elections and candidates.   Third, the government generally should rarely if ever discriminate against speech based on the content of speech.

These three principles should allow a judicial candidate to express to the voters that he or she received the endorsement of a political party.   But, a federal district court and now a three-judge panel of the 9th Circuit saw things differently.

The 9th Circuit relied chiefly on the U.S. Supreme Court’s 2015 decision in Williams-Yulee v. Florida Bar.  In that decision, the Court narrowly upheld by a vote of 5-4 a provision of the Florida Code of Judicial Conduct that prohibited judges from soliciting campaign votes.

Because the Florida rule was a content-based restriction on speech, the Court had to apply the highest form of judicial scrutiny known as strict scrutiny.  This means that the government must show that its law advances a compelling governmental interest in a very narrowly tailored way.

In his majority opinion, Chief Justice John G. Roberts, Jr. determined that this was one of those “rare cases” where a content-based law survived strict scrutiny, because states have such a strong interest in in preserving the integrity of judicial elections.  Roberts also pointed out that the judicial candidates could still contact potential supporters and promote their campaigns in other ways.

A significant feature of Williams-Yulee, however, is that the U.S. Supreme Court applied strict scrutiny and upheld the restriction on judicial speech.

The 9th Circuit followed suit in the French case and upheld the Montana provision.  “Dependence on an endorsing political party brings into question whether a judge will be able to independently interpret and review a given piece of legislation and thus goes to the core of the separation of powers,” Judge Jay Bybee wrote for the panel. “For all these reasons, Montana is well within its authority to focus its immediate concern on endorsements from political parties.”

Once again, a federal court has applied strict scrutiny and upheld a patently content-based restriction on political speech.  What is disturbing is that the Montana provision was even more speech-restrictive than the provision upheld in Williams-Yulee.  The Florida rule in Williams-Yulee still allowed a candidate’s campaign committees to solicit votes.  The Montana rule enacted a flat ban on judicial candidates from using political party endorsements.

“But at least Williams-Yulee stressed how narrow the restriction was — how it didn’t apply to the judge’s campaign committee, and how the rule left judicial candidates free to discuss any issue with any person at any time,” says UCLA law professor Eugene Volokh, who authored an amicus brief on behalf of the Center for Competitive Politics in support of French.  “This rule, though, covers statements either by the judge or authorized by the judge, and covers not just solicitation of funds but conveying information that many voters find extremely important: whether the judge is endorsed by a party that the voters trust.”

“When challengers are prohibited from disclosing political party endorsements, voters are deprived of valuable information and elections become skewed in favor of incumbent judges who already have name recognition,” says Matthew Monforton, who represented French in the case.  “Not surprisingly, incumbent justices are the ones who slapped judicial candidates with an endorsement gag rule. Montana’s justices took the extraordinary step of filing an amicus brief when this case was in District Court, and the Conference of Chief Justices filed one in the Ninth Circuit.

The real tragedy of the 9th Circuit’s decision is that it deprives the public of information they should have access to before judicial elections.

“Voters often know little about down-ballot races, such as for local judge,” says Volokh.  “If they had expertise and a lot of time to devote to the election, they might investigate closely the candidates’ statements and positions — but in practice, voters lack both the time and the expertise to do that.  So instead many voters seek useful if imperfect proxies, such as endorsement by a party.  Some good-government advocates might not think that’s good, but many voters would find it tremendously helpful.  But the law upheld here bars judges from conveying this information that so many voters would find important.”

The case may not be over, as Monforton says he will a cert. petition to the U.S. Supreme Court.

If the Court decides to take the case, they should heed the words of their late colleague, Justice Antonin Scalia, who wrote the following parting words in his dissent in Williams-Yulee:  “The First Amendment is not abridged for the Brotherhood of the Robe.”

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