Ninth Circuit Upholds Montanta Limit on Judicial Campaign Speech

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion  in French v. Jones, a unanimous Ninth Circuit panel rejected a First Amendment challenge to a Montana judicial ethics rule restricting political endorsements in campaigns.

Montana Code of Judicial Conduct 4.1(A)(7) prohibits judicial candidates from seeking, accepting, or using endorsements from a political party/organization or partisan candidate, although it does allow political parties to endorse and even provide funds to judicial candidates.  Affirming the district judge and upholding the provision's constitutionality, the Ninth Circuit opinion by Judge Jay Bybee surveys the United States Supreme Court's two opinions on the First Amendment and judicial campaign ethics - - - Republican Party of Minnesota v. White (2002) and Williams-Yulee v. Florida Bar (2015) - - - and notes that although the Supreme Court has provided "mixed guidance," the "clear shift in favor of state regulation" and "palpable change" in Williams-Yulee renders the arguments of the challengers unavailing.

After a rehearsal of the cases, including a Ninth Circuit en banc decision, Judge Bybee applied strict scrutiny.  Montana's compelling governmental interest of "actual and perceived judicial impartiality" had been accepted in Williams-Yulee. The second interest in a "structurally independent judiciary" is also evaluated, with a supporting citation to The Federalist No. 78, and implicitly found to be even "more compelling." The major challenge, however, was that the judicial canon was not narrowly tailored because it was "fatally underinclusive." On this issue, Judge Bybee's opinion again relied on the change wrought by Williams-Yulee, quoting language disapproving on underinclusiveness.  More specifically, the court found that the interest in judicial independence was differently served by endorsements from political parties (whose use was prohibited by the canon) than by endorsements by interest groups. Likewise, the court found that permitting judicial candidates to solicit and use money from political parties was unpersuasive because endorsements are more public, although the information regarding contributions is also available to the public. 

Additionally, the court rejected the equation between the announcement prohibition in White, which was found unconstitutional, and the political party endorsement prohibition at issue.  Party endorsement is not simply "shorthand" for views. "An endorsement is a thing of value: it may attract voters' attention, jumpstart a campaign, give assurance that the candidate has been vetted, or provide legitimacy to an unknown candidate . . ."

The court also rejected the argument that Montana did not show political endorsements cause harm noting that such an argument could lead to a finding that Montana's choice of nonpartisan judicial elections was itself unconstitutional.  Moreover, the elimination of judicial elections entirely is not a less restrictive means consistent with Williams-Yulee.

Although Williams-Yulee was a closely divided case and its reasoning not entirely clear, it provides the basis on which courts are upholding judicial campaigning restrictions.