Mark French v. Blair Jones
876 F.3d 1228
| 9th Cir. | 2017Background
- Montana conducts nonpartisan judicial elections and bars judges/candidates from engaging in political activity inconsistent with judicial independence and impartiality under the Montana Code of Judicial Conduct.
- Rule 4.1(A)(7) forbids judges and judicial candidates from seeking, accepting, or using endorsements from political organizations or partisan/non-judicial officeholders; violation can trigger discipline by the Montana Judicial Standards Commission.
- Mark French, a Sanders County justice of the peace candidate in 2014, refrained from soliciting or using Republican endorsements (which were available) fearing Rule 4.1(A)(7); he lost and sued asserting a First Amendment challenge seeking injunctive relief.
- The district court granted summary judgment for Montana; the Ninth Circuit reviewed de novo whether the endorsement ban is a content-based restriction that survives strict scrutiny.
- The court identified Montana’s compelling interests in (1) actual and perceived judicial impartiality and (2) structural judicial independence, and analyzed tailoring in light of Supreme Court precedent—most notably Williams‑Yulee—and the Ninth Circuit’s en banc decision in Wolfson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4.1(A)(7) violates the First Amendment as a content-based restriction on campaign speech | French: The rule is not narrowly tailored; it is underinclusive (permits endorsements from non-party entities, allows committees/money), overinclusive, and lacks empirical evidence of harm | Montana: The State has compelling interests in preserving judicial impartiality and structural independence; the rule is narrowly tailored to those interests and properly focuses on the most pressing risks | The ban is constitutional; Montana’s interests are compelling and the rule is narrowly tailored in light of Williams‑Yulee and Wolfson |
| Whether underinclusivity (permitting non-party endorsements and contributions) defeats the rule | French: Selective prohibition (parties but not interest groups; endorsements but not donations) shows lack of narrow tailoring | Montana: Political parties and endorsements pose distinct, greater risks to perceived independence; states may target their most pressing concerns | Underinclusivity objections rejected; Williams‑Yulee permits targeting pressing concerns without an all-or-nothing approach |
| Whether overinclusivity (banning committees from using endorsements or bans during campaign only) renders the rule unconstitutional | French: Blanket ban—including affiliates and campaign committees—sweeps more speech than necessary | Montana: Whether candidate or affiliate, public perception is harmed by endorsements; the First Amendment does not require perfect tailoring | Overinclusivity objections rejected; line-drawing deference applies per Williams‑Yulee and Wolfson |
| Whether lack of empirical evidence or existence of partisan-election states invalidates the rule | French: No documentary proof endorsements harm impartiality; other states permit partisan endorsements | Montana: Public confidence in judicial integrity is a valid, compelling interest that resists documentary proof; states may choose nonpartisan election structures | Rule stands; lack of empirical proof and existence of partisan systems do not defeat the regulation |
Key Cases Cited
- Republican Party of Minn. v. White, 536 U.S. 765 (2002) (invalidated broad prohibitions on judicial candidates announcing views; applied strict scrutiny and highlighted underinclusivity concerns)
- Williams‑Yulee v. Florida Bar, 575 U.S. 433 (2015) (upheld restriction on personal solicitation by judicial candidates; held states may target pressing concerns and rejected freestanding underinclusiveness limitation)
- Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc) (upheld Arizona restrictions on judicial campaign political activity relying on Williams‑Yulee; rejected underinclusivity and overinclusivity challenges)
- Republican Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005) (en banc) (on remand from White, struck partisan-activities clause as underinclusive)
- Sanders Cty. Republican Cent. Comm. v. Bullock, 698 F.3d 741 (9th Cir. 2012) (struck Montana statute forbidding party endorsements of judicial candidates as underinclusive)
- Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010) (invalidated restrictions on personal solicitation and party identification in judicial campaigns under White)
- McConnell v. FEC, 540 U.S. 93 (2003) (explained salient differences between political parties and interest groups relevant to regulation of party influence)
- Citizens United v. FEC, 558 U.S. 310 (2010) (articulated strict scrutiny principles in campaign speech context cited for general First Amendment framework)