Sanders County Republican Cent v. Steve Bullock- Opinion

FILED

FOR PUBLICATION SEP 17 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SANDERS COUNTY REPUBLICAN No. 12-35543

CENTRAL COMMITTEE,

D.C. No. CV-12-00046 Plaintiff - Appellant,

v. OPINION

STEVEN BULLOCK, in his official capacity as Attorney General for the State of Montana; JAMES MURRY, in his official capacity as the Commissioner for Political Practices for the State of Montana,

Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Charles C. Lovell, Senior U.S. District Judge, Presiding

Argued and Submitted August 31, 2012 Seattle, Washington Before: SCHROEDER and GOULD, Circuit Judges, and RAKOFF, Senior District Judge.*

RAKOFF, Senior District Judge:

Since 1935, Montana has selected its judges through nonpartisan popular

elections. Mont. Code Ann. § 13-14-111. Further to this end, Montana makes it a

criminal offense for any political party to “endorse, contribute to, or make an

expenditure to support or oppose a judicial candidate,” Mont.…

Opinion by Judge RAKOFF; Dissent by Judge SCHROEDER.

*744 OPINION

Since 1935, Montana has selected its judges through nonpartisan popular elections. Mont.Code Ann. § 13-14-111. Further to this end, Montana makes it a criminal offense for any political party to “endorse, contribute to, or make an expenditure to support or oppose a judicial candidate,” Mont.Code Ann. § 13-35-231, and individuals who facilitate such activities may also be held criminally liable, Mont. Code Ann. § 13-35-105 . The voters of Montana are thus deprived of the full and robust exchange of views to which, under our Constitution, they are entitled.

Appellant Sanders County Republican Central Committee (“the Committee”) seeks to endorse judicial candidates and to enable the expenditures that would make those views publicly known. The Committee argues that Montana’s ban on political party endorsements is an unconstitutional restriction of its First Amendment rights of free speech and association. 1 On May 29, 2012, the Committee filed suit against Montana’s Commissioner of Political Practices James Murry and against, Montana’s Attorney General Steven Bullock seeking injunctive relief and a declaration that…

dissenting.

This decision is a big step backwards for the state of Montana, which we all agree has a compelling interest in maintaining an independent and impartial judiciary. The majority ignores the practical effects of its decision on that interest when it takes a formulaic approach to First Amendment doctrine. This is the first opinion to hold that even though a state has chosen a nonpartisan judicial selection process, political parties have a right to endorse candidates. This means parties can work to secure judges’ commitments to the parties’ agendas in contravention of the non-partisan goal the state has chosen for its selection process.

The Supreme Court in Republican Party of Minn. v. White (White I), 536 U.S. 765 , 122 S.Ct. 2528 , 153 L.Ed.2d 694 (2002) recognized that judges have a life beyond the bench and make statements throughout their legal careers on political and legal issues. “[Jjudges often state their views on disputed legal issues outside the context of adjudication — in classes that they conduct, and in books and speeches.” Id. at 778 , 122 S.Ct. 2528 . Such activity differs from partisan endorsements. Judges’ public discussion of their legal and…