ELECTIONS: Political committee’s challenge of §13-35-231 prohibition against endorsing judicial candidates (so it can transform nonpartisan elections into partisan elections and attack “left-leaning state judges”) unlikely to succeed on merits given present factual record, preliminaryinjunction denied, trial set… challenge justiciable even though Committee has not adopted by-laws allowing such endorsements… Lovell.
A goal of the Sanders Co. Republican Central Committee is to “promote the election of candidates to public office who share its ideological views.” “Given the increasing intrusions by left-leaning state judges into areas of policy traditionally reserved to the Legislature, [the Committee] desires to endorse judicial candidates for the primary and general elections in 2012.” MCA 13-35-231 states: “A political party may not endorse, contribute to, or make an expenditure to support or oppose a judicial candidate.” Consequently, the Committee claims that it has not publicly endorsed candidates and has often refrained from even discussing judicial candidates at Committee meetings. In 3/12 it wrote to CPP Murry stating that it believed it had a right to endorse judicial candidates under Citizens United (US 2010). Murry responded that he is obligated to enforce 13-35-231. The Committee applied for injunctive and declaratory relief and a TRO. The Court denied a TRO 6/1 and set a hearing 6/12 on the preliminary injunction application. The Committee confirmed at the hearing that the only part of 13-35-231 that it challenges is the prohibition against political party endorsements of judicial candidates.
Defendants argue that the case is not justiciable because the Committee has not adopted by-laws that would allow it to endorse judicial candidates. Eu (9th Cir. 1987, US 1989) held that a central committee does not need by-laws that permit a particular method of speech to challenge a statute that prohibits such speech:
Institutions are not required to make the empty gesture of passing rules that are void as a matter of law and ignored as a matter of institutional practice in order to satisfy standing requirements. Certainly a failure to make such a futile gesture gives us no grounds for inferring that the parties’ bylaws merely reflect a neat coincidence of what the parties want and what the statutes require.
At least in Montana there is good reason for this rule. If a central committee adopts a by-law permitting speech that is otherwise prohibited by statute, that itself is a violation of Montana law. §13-35-104.
The 1st Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United. However, a government may restrict political speech if it can show that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. The parties agree that Montana has a compelling interest in ensuring that its judiciary is independent and fair. This necessitates a nonpartisan judiciary. Mistretta (US 1989). The question becomes whether 13-35-231′s prohibition of party endorsements of judicial candidates is narrowly tailored to achieve that interest. Geary (9th Cir. 1990, en banc) held that a California statute prohibiting political parties from endorsing candidates for nonpartisan judicial offices violated the 1st Amendment. Although vacated by the US Supreme Court for lack of justiciability, its reasoning has persuasive value. It concluded that California’s statute was not narrowly tailored to achieve that interest:
Political parties as well as party adherents possess rights of expression and association under the first amendment, and the mere fact that §6(b) targets the collective rather than the individual voices of party members does not suffice to render it “precisely drawn.”
Judge Rymer, Judges Alarcon and Fernandez joining, dissented:
The fact that [the statute] targets the collective voice only with respect to endorsements for nonpartisan offices may render it drawn as precisely as it can be, for to preclude party endorsements in nonparty elections is the flip side of a candidate’s running for nonpartisan office without party identification.
As she observes, there might not be a way to more narrowly tailor these types of statutes. The Committee conceded this at the preliminary injunction hearing. If, contrary to 13-35-231, political parties were permitted to endorse nonpartisan judicial candidates, the elections might be nonpartisan only in form. Nonpartisan elections can perhaps be truly nonpartisan only if political parties are prohibited from endorsing the candidates. Citizens United supports Rymer’s dissent. It observed that the USSC has “upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons” where the restrictions “were based on an interest in allowing governmental entities to perform their functions.” As Rymer’s dissent suggests, it might not be possible for a nonpartisan judicial election to function if political parties are allowed to endorse candidates:
A nonpartisan structure abandons the political party as a conduit for the electorate’s views. Nonpartisanship envisions direct representation of citizens rather than indirect representation through parties as intermediaries.
The Committee’s express objective is to use endorsements to transform Montana’s nonpartisan judicial elections into functionally partisan elections and attack “left-leaning state judges.” The Court agrees with Rymer’s analysis and concludes that — at this point in the litigation — the Committee is not likely to prevail on the merits. The public interest and equities also counsel against an injunction.
There is an obvious interest to both the public and the Legislature in having judicial candidates free of the appearance of impropriety. An appearance of partisanship will hardly foster public confidence in the courts. CDF (SD Fla. 1978)
Further, there is no record at this point to guide the Court’s decision. Rymer observed the same problem:
It is particularly troubling in this case that there is virtually no record. There is, for example, no evidence showing whether the relative voice of political parties has been unduly significant or influential in nonpartisan elections where endorsements have occurred. Nor is there any evidence bearing on feasibility of alternate means to aid the state’s interest. The absence of a record leads inexorably to judges judging on their own instinct or experience.
When Geary was before the USSC, it similarly observed:
The free speech issues argued in the briefs filed here have fundamental and far-reaching import. For that reason, we cannot decide the case based upon the amorphous and illdefined factual record presented to us.
This reasonably suggests that the USSC did not agree with the 9th Circuit’s conclusion on the same Geary record — the record was insufficient to warrant the relief granted. Montana has apparently successfully utilized a nonpartisan election system to choose its judges for decades. Here also, the free speech issues have “fundamental and far-reaching import,” which this Court ought not decide without a complete record. The Committee might ultimately succeed on the merits, but success is unlikely at this point and absent a well-developed record.
Preliminary injunction denied. Bench trial is set for 9/25/12.
Sanders Co. Republican Central Committee v. Bullock and Murry, 39 MFR 474, 6/26/12.
Matthew Monforton, Bozeman, for the Committee: Asst. AGs Michael Black & Andrew Huff; MTLA members Amy Eddy (Bottomly Eddy & Sandler), Kalispell, and Michael Lamb (Lamb & Carey), Helena, for Intervenor/MTLA member Elizabeth Best (candidate for the MSC when the TRO application was filed).
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