Mark French v. Blair Jones

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK FRENCH, No. 15-35990
Plaintiff-Appellant,
D.C. No.
v. 4:14-cv-00057-
SEH
BLAIR JONES, in his official capacity
as Chair of Montana’s Judicial
Standards Commission; MIKE OPINION
MENAHAN, in his official capacity as
a member of Montana’s Judicial
Standards Commission; VICTOR
VALGENTI, in his official capacity as
a member of Montana’s Judicial
Standards Commission; JOHN
MURPHY, in his official capacity as a
member of Montana’s Judicial
Standards Commission; BRIANNE
DUGAN, in her official capacity as a
member of Montana’s Judicial
Standards Commission,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, Senior District Judge, Presiding
Argued and Submitted June 16, 2017
Seattle, Washington
2 FRENCH V. JONES
Filed December 7, 2017
Before: Jay S. Bybee and Milan D. Smith, Jr., Circuit
Judges, and Jennifer A. Dorsey,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought by Mark French, a Montana judicial
candidate, who alleged that Montana’s campaign-speech rule,
which prohibits judicial candidates from seeking, accepting,
or using political endorsements in their election campaigns,
violated his First Amendment rights.
The panel held that Montana has compelling interests in
an impartial and independent judiciary and that Rule
4.1(A)(7) of the Montana Code of Judicial Conduct was
narrowly tailored to those interests. The panel held that Rule
4.1(A)(7) struck an appropriate balance between a candidate’s
speech and Montana’s interest in an independent and
impartial judiciary. The panel held that French’s arguments
to the contrary were foreclosed by the Supreme Court’s
*
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRENCH V. JONES 3
decision in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656(2015), and this Circuit’s decision in Wolfson v. Concannon,
811 F.3d 1176 (9th Cir. 2016) (en banc).
The panel rejected French’s arguments that Rule
4.1(A)(7) was fatally underinclusive. The panel held that:
(1) an endorsement from a political party threatened the
public perception of judicial independence to a greater degree
than an endorsement from an interest group; (2) Montana
could reasonably conclude that political endorsements were
more suggestive of a quid-pro-quo exchange than donations;
and (3) it made sense for Montana to prohibit the solicitation
and use of endorsements during a judicial candidate’s
campaign and to limit those endorsement to political office
holders and entities. The panel further held that the seeking
and using of political endorsements was distinct from
announcing one’s views on certain issues.
The panel rejected French’s argument that Rule 4.1(A)(7)
was overinclusive because Montana does not allow the
candidates’ campaign committees to seek and use political
endorsements. The panel held that Montana had reasonably
determined that both candidates and their committees posed
a threat to its judiciary when they sought, accepted, or used
political endorsements in their campaigns.
4 FRENCH V. JONES
COUNSEL
Matthew G. Monforton (argued), Monforton Law Offices
PLLC, Bozeman, Montana, for Plaintiff-Appellant.
Dale Schowengerdt (argued), Solicitor General; Mark W.
Mattioli, Assistant Attorney General; Montana Department of
Justice, Helena, Montana; for Defendants-Appellees.
Elizabeth Arias (argued), Corey Collins, and Eugene Lim,
Law Students; Eugene Volokh (argued), Supervising
Attorney; Scott & Cyan Banister First Amendment Clinic,
UCLA School of Law, Los Angeles, California; for Amicus
Curiae Center for Competitive Politics.
Igor V. Timofeyev, Adam Weiss, and Danielle R.A. Susanj,
Paul Hastings LLP, Washington, D.C.; Karl J. Sandstrom and
David J. Lazarus, Perkins Coie LLP, Washington, D.C.; Keith
R. Fisher, National Center for State Courts, Arlington,
Virginia; for Amicus Curiae Conference of Chief Justices.
FRENCH V. JONES 5
OPINION
BYBEE, Circuit Judge:
Montanans select their judges through nonpartisan
popular elections. In an effort to keep those elections
nonpartisan, Montana has restricted judicial-campaign
speech. One of those restrictions is before us—a rule that
prohibits candidates from seeking, accepting, or using
political endorsements in their campaigns. Mark French, a
judicial candidate who wishes to seek and use such
endorsements, claims that Montana’s rule violates his First
Amendment rights. Montana argues that the rule is narrowly
tailored to ensuring the impartiality and independence of
Montana’s judiciary. The district court upheld the statute,
and we agree. In light of the Supreme Court’s decision in
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), and
our decision in Wolfson v. Concannon, 811 F.3d 1176 (9th
Cir. 2016) (en banc), we affirm the judgment.
I
Montana has declared that “[a]n independent, fair, and
impartial judiciary is indispensable to [its] system of justice.”
Mont. Code of Judicial Conduct, Preamble (2009). Although
that statement of principle must be universally acknowledged,
American jurisdictions have chosen different means to secure
it. See The Federalist No. 78, at 465 (C. Rossiter ed. 1961)
(A. Hamilton) (arguing for the appointment of judges). Since
1935, Montana has decided to select its judges through
nonpartisan popular elections. See Mont. Code Ann. § 13-14-
111. Recognizing that mixing politics with judging could
lead to injustice, Montana has prohibited all judges and
candidates for judicial office from “engag[ing] in political or
6 FRENCH V. JONES
campaign activity that is inconsistent with the independence,
integrity, or impartiality of the judiciary.” Mont. Code of
Judicial Conduct Canon 4. That broad prohibition applies to
such activities as holding an office in or making speeches on
behalf of a political organization, publicly endorsing political
candidates, publicly identifying oneself as a political
candidate, and otherwise using the names of political parties
in judicial campaigns.1 Id. Rule 4.1; Mont. Code Ann. § 13-
10-602(2).
Only one restriction is at issue here. Rule 4.1(A)(7) of the
Montana Code of Judicial Conduct provides: “[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 . . . .”2
Mont. Code of Judicial Conduct Rule 4.1(A)(7). The Code
defines a “political organization” as “a political party or other
group sponsored by or affiliated with a political party or
candidate, the principal purpose of which is to further the
election or appointment of candidates for political office.” Id.Terminology. If a judge or judicial candidate violates this
endorsement provision, the Montana Judicial Standards
Commission “shall recommend . . . the censure, suspension,
1
Montana is not alone in restricting the political speech of judges and
judicial candidates. As of 2012, “[t]hirty-nine states have judicial
elections, and nearly all have enacted laws to treat judicial elections
differently from political elections.” Sanders Cty. Republican Cent.
Comm. v. Bullock, 698 F.3d 741, 750 (9th Cir. 2012) (Schroeder, J.,
dissenting).
2
Montana does not, however, prohibit political parties or
organizations from endorsing judicial candidates. See Sanders Cty.,
698 F.3d at 749.
FRENCH V. JONES 7
removal, or disability retirement of the judicial officer.”
Mont. Code Ann. § 3-1-1106(3).
In 2014, Mark French ran as a candidate for justice of the
peace in Sanders County. The Sanders County Republican
Central Committee endorsed French’s candidacy, and two
prominent Republican officeholders were willing to consider
doing so if French had asked. Afraid of violating Rule
4.1(A)(7), French refrained from seeking or using these
endorsements in his campaign. He ultimately lost the
election, but intends to run again in 2018. Although French
would like to seek and use political endorsements during the
next election cycle, he understands that he cannot do so as
long as Rule 4.1(A)(7) remains in place.
French filed this action claiming that Rule 4.1(A)(7)
violates his First Amendment rights and asking that the court
enjoin its enforcement. The district court rejected French’s
argument and entered summary judgment against him. We
review that decision de novo. See McIndoe v. Huntington
Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016).
II
The First Amendment, applicable to the states through the
Fourteenth Amendment, prohibits the government from
“abridging the freedom of speech.” U.S. Const. amend. I;
Stromberg v. California, 283 U.S. 359, 368 (1931)
(incorporating “the right of free speech” into the Due Process
Clause of the Fourteenth Amendment). Content-based
restrictions on judicial-campaign speech are subject to strict
scrutiny under the First Amendment. See Republican Party
of Minn. v. White (“White I”), 536 U.S. 765, 774 (2002)
(assuming strict scrutiny applies); Wolfson, 811 F.3d at 1180
8 FRENCH V. JONES
(holding that strict scrutiny applies). To survive strict
scrutiny, the government must show that “the restriction
‘furthers a compelling interest and is narrowly tailored to
achieve that interest.’” Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 340 (2010) (citation omitted). “‘[I]t
is the rare case’ in which a State demonstrates that a speech
restriction is narrowly tailored to serve a compelling interest
. . . . But those cases do arise.” Williams-Yulee, 135 S. Ct. at1665–66 (citations omitted); see also Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 237 (1995) (“[W]e wish to dispel
the notion that strict scrutiny is ‘strict in theory, but fatal in
fact.’” (citation omitted)).
Before determining whether Rule 4.1(A)(7) is narrowly
tailored to achieve a compelling state interest, we must
examine the development of First Amendment law in this
murky area of judicial-campaign speech. The Supreme Court
has addressed restrictions similar to Rule 4.1(A)(7) on two
occasions—in White I and Williams-Yulee—providing mixed
guidance on the proper analytical framework and producing
some tension among the lower courts. We have addressed
that tension in our en banc decision in Wolfson. Despite the
confusion, we discern a clear shift in favor of state
regulation—a shift that renders many of French’s and his
amicus curiae’s arguments no longer persuasive.
A
1
We begin our survey with White I. The Supreme Court
there reviewed a Minnesota restriction on judicial elections
that prohibited a candidate from “announc[ing] his or her
views on disputed legal or political issues,” a prohibition that
FRENCH V. JONES 9
at the very least precluded “a judicial candidate from stating
his views on any specific nonfanciful legal question within
the province of the court for which he [was] running.” White
I, 536 U.S. at 768, 773 (citation omitted). The majority began
by identifying a potential compelling interest Minnesota
might have had in imposing the restriction: preserving both
the actual and perceived impartiality of the state judiciary.
Id. at 775–76. The Court warned, however, that speaking of
the need for an impartial judiciary in general terms would not
do; instead, it was necessary to pinpoint the precise meaning
of the term “impartial.” Id. at 775. The majority offered
three definitions. Id. at 775–84.
First, the term could mean a “lack of bias for or against
either party to the proceeding.” Id. at 775. But if that is what
impartiality meant, the majority reasoned, the restriction was
not narrowly tailored because it “[did] not restrict speech for
or against particular parties, but rather speech for or against
particular issues.” Id. at 776. Second, impartiality could
mean a “lack of preconception in favor of or against a
particular legal view.” Id. at 777. The Court held, however,
that preserving such impartiality was not a compelling state
interest because “[p]roof that a Justice’s mind at the time he
joined the Court was a complete tabula rasa in the area of
constitutional adjudication would be evidence of lack of
qualification, not lack of bias.” Id. at 778 (citation omitted).
Finally, “[a] third possible meaning of ‘impartiality’ . . .
might be described as open-mindedness.” Id. “This sort of
impartiality seeks to guarantee each litigant, not an equal
chance to win the legal points in the case, but at least some
chance of doing so.” Id. While recognizing that the state’s
desire to ensure the open-mindedness of its judges might be
compelling, the Court could not accept that Minnesota’s
restriction was tailored to address this concern because it was
10 FRENCH V. JONES
“so woefully underinclusive.” Id. at 780. Indeed,
“statements in election campaigns are . . . an infinitesimal
portion of the public commitments to legal positions that
judges (or judges-to-be) undertake,” for example, in legal
opinions, public lectures, law review articles, and books. Id.
at 779. Because the restriction did not address such other
public commitments, the Court concluded that the purpose
behind the restriction was “not openmindedness in the
judiciary, but the undermining of judicial elections.” Id. at
782.
In the aftermath of White I, few regulations of judicial-
campaign speech withstood strict scrutiny. One of the most
important decisions of that period, for our purposes, is the
Eighth Circuit’s decision on remand from White I regarding
the validity of a Minnesota restriction that was almost
identical to Montana’s Rule 4.1(A)(7). See Republican Party
of Minn. v. White (“White II”), 416 F.3d 738, 745 (8th Cir.
2005) (en banc). Minnesota prohibited judges or judicial
candidates from “identify[ing] themselves as members of a
political organization,” “attend[ing] political gatherings,” or
“seek[ing], accept[ing] or us[ing] endorsements from a
political organization.” Id. (quoting 52 Minn. Stat. Ann.,
Code of Judicial Conduct, Canon 5, subd. (A)(1)). The court
referred to the restriction as the “partisan-activities” clause.
Id.Sitting en banc, a majority of the Eighth Circuit hewed
closely to White I’s framework, identifying the three
meanings of judicial impartiality discussed in the Supreme
Court’s decision and then analyzing whether any of these
interests justified the restriction. Id. at 751–66. As to the
first two meanings of impartiality—lack of party bias and
preconception toward a particular legal view—the court
FRENCH V. JONES 11
adopted the Supreme Court’s analysis, reasoning that the
restriction involved in White I was not all that different from
a restriction on associating with a particular political group.
Id. at 753–56. And as to the third type of impartiality—
judicial open-mindedness—the court thought that, like the
restriction in White I, the partisan-activities clause was
“woefully underinclusive.” Id. at 756. The clause prohibited
“associative activities with a political party during a
campaign,” but not at any time before that. Id. at 758. More
important still, the court continued, “it ma[de] little sense for
the state to restrict [associational] activity only with political
parties,” but not with interest groups such as the National
Rifle Association, the National Organization for Women, and
the Christian Coalition, which could potentially harm judicial
open-mindedness to the same extent. Id. at 759. And
although the court acknowledged that treating political parties
differently might be “justified given political parties’
‘powerful machinery,’ including a large membership, to
enforce adherence to their views,” it countered that some
Minnesota parties—such as the Constitution Party, the
Natural Law Party, and the Green party—have “a more
limited membership” and focus on “only a few issues.” Id. at
760–61 n.12 (citation omitted). The court struck the partisan-
activities clause under the First Amendment. Id. at 766.
Other courts, including ours, followed the lead of White
I and II and invalidated similar speech restrictions. In
Sanders County, we ruled unconstitutional a Montana statute
that made it a criminal offense for any political party to
“endorse, contribute to, or make an expenditure to support or
oppose a judicial candidate.” 698 F.3d at 744 (citing Mont.
Code Ann. § 13-35-23). We accepted as true that “Montana
has a compelling interest in maintaining a fair and
independent judiciary,” but held that the statute was
12 FRENCH V. JONES
underinclusive because it forbade “judicial endorsements by
political parties but not by other associations, individuals,
corporations, special interest groups and the like.” Id. at
746–47 (quoting and relying on White II’s discussion of
underinclusivity). The panel majority also found no evidence
that “preventing political parties from endorsing judicial
candidates is a necessary prerequisite to maintaining a fair
and independent judiciary,” especially given that many states
“not only allow party endorsements but require party
nominations.” Id. at 746. “If Montana were concerned that
party endorsements might undermine elected judges’
independence,” the court concluded, “Montana could appoint
its judges, with a bipartisan and expert panel making
nominations—a less restrictive alternative currently practiced
by several states.” Id. at 747.3
2
The strict First Amendment framework of White I
underwent significant changes with the Supreme Court’s
decision in Williams-Yulee. Before the Court was a challenge
to Florida’s solicitation restriction, which prohibited judicial
candidates from personally soliciting funds but allowed them
to establish committees to do so for them. Williams-Yulee,
135 S. Ct. at 1663. The restriction was very similar to those
invalidated by the Eighth Circuit in White II and the Sixth
3
Other circuits used analogous reasoning to strike various restrictions
on judicial-campaign speech under White I. See Carey v. Wolnitzek,
614 F.3d 189, 201–07 (6th Cir. 2010) (invalidating Kentucky’s regulations
prohibiting judicial candidates from personally soliciting campaign funds
and identifying themselves as members of political parties); Siefert v.
Alexander, 608 F.3d 974, 981–83, 990 (7th Cir. 2010) (striking
Wisconsin’s statute prohibiting judicial candidates from being members
of political parties).
FRENCH V. JONES 13
Circuit in Carey v. Wolnitzek, 614 F.3d 189, 201–07 (6th Cir.
2010). Employing reasoning that contrasted sharply with
White I, the Supreme Court upheld the regulation.
The Court began by “hold[ing] . . . what [it] assumed in
White: A State may restrict the speech of a judicial candidate
only if the restriction is narrowly tailored to serve a
compelling interest.” Id. at 1665 (plurality opinion).4 The
Court then found that Florida had a compelling interest in
“protecting the integrity” of its judiciary and “maintaining the
public’s confidence in an impartial judiciary.” Id. at 1666
(citation omitted). In contrast to White I, however, the Court
did not attempt to define precisely what judicial integrity or
impartiality means. Instead, it emphasized that “[t]he concept
of public confidence in judicial integrity does not easily
reduce to precise definition, nor does it lend itself to proof by
documentary record. But no one denies that it is genuine and
compelling.” Id. at 1667. “Unlike the executive or the
legislature, the judiciary ‘has no influence over either the
sword or the purse . . . .’ The judiciary’s authority therefore
depends in large measure on the public’s willingness to
respect and follow its decisions.” Id. at 1666 (quoting The
Federalist No. 78, at 465).
After accepting Florida’s general interest in judicial
impartiality, the Court considered the argument made in
every case discussed above: the restriction was fatally
4
Chief Justice Roberts’s opinion on the point commanded only a
plurality of the Court. See id. at 1673 (Ginsburg, J., concurring in part and
concurring in the judgment). The dissenting justices, however, agreed
with the plurality on this point. Id. at 1676 (Scalia, J., dissenting); see id.
at 1682 (Kennedy, J., dissenting) (largely agreeing with Justice Scalia’s
analysis); id. at 1685 (Alito, J., dissenting) (same).
14 FRENCH V. JONES
underinclusive. Id. at 1668. The challenger argued that
underinclusivity arose because Florida permitted indirect
solicitations through committees and the writing of thank-you
notes, which ensured that candidates knew the identity of
donors. Id. In the pre-Williams-Yulee world, these arguments
successfully convinced courts to invalidate similar
solicitation clauses. See Carey, 614 F.3d at 205 (“Although
the candidate himself may not solicit donations, his campaign
committee may. . . . That leaves a rule preventing a candidate
from sending a signed mass mailing to every voter in the
district but permitting the candidate’s best friend to ask for a
donation directly from an attorney who frequently practices
before the court. Are not the risks of coercion and undue
appearance far less with the first (prohibited) solicitation than
the second (permitted) one?”); White II, 416 F.3d at 765–66.
But the Court flatly rejected these arguments. Williams-
Yulee, 135 S. Ct. at 1668. “It is always somewhat
counterintuitive to argue,” the Court reasoned, “that a law
violates the First Amendment by abridging too little speech.”
Id. And although underinclusivity might indicate that the law
does not advance a compelling state interest, “the First
Amendment imposes no freestanding ‘underinclusiveness
limitation.’” Id. (citation omitted). “A State need not address
all aspects of a problem in one fell swoop; policymakers may
focus on their most pressing concerns.” Id. Florida’s
prohibition on only personal solicitations did precisely that.
Despite the fact that a candidate’s campaign committee could
solicit funds on behalf of the candidate, “Florida . . . ha[d]
reasonably concluded that solicitation by the candidate
personally creates a categorically different and more severe
risk of undermining public confidence.” Id. at 1669.
Similarly, while permitting candidates to write thank you
notes might “heighten[] the likelihood of actual bias by
FRENCH V. JONES 15
ensuring that judicial candidates know who supported their
campaigns, and ensuring that the supporter knows that the
candidate knows,” the compelling interest in an impartial
judiciary “is implicated most directly by the candidate’s
personal solicitation itself.” Id.Having dispensed with the argument that Florida
prohibited too little speech, the Court turned to whether the
solicitation provision restricted too much. Id. at 1670–71.
The challenger argued that her method of soliciting
funds—mass mailing—presented such a small threat to the
public confidence in the judiciary that Florida’s provision was
unconstitutionally overinclusive. Id. at 1671. Concluding it
was not, the Court emphasized that the restriction must be
only narrowly tailored, not “perfectly tailored,” because “the
First Amendment does not confine a State to addressing evils
in their most acute form.” Id. (citation omitted). The Court
declined to “wade into [the] swamp” of unworkable line
drawing, respecting Florida’s conclusion “that all personal
solicitations by judicial candidates”—no matter what form
they take—“create a public appearance that undermines
confidence in the integrity of the judiciary.” Id.Accordingly, the Court ruled the solicitation provision a
16 FRENCH V. JONES
permissible restriction under the First Amendment.5 Id. at
1673.
Williams-Yulee marked a palpable change in the approach
to state regulations of judicial-campaign speech—a change
perhaps best exemplified by our unanimous en banc decision
in Wolfson. Wolfson involved two Arizona restrictions on
judicial speech similar to that before us: a prohibition on
public endorsements of political candidates, via monetary
contributions or otherwise, and a restriction on political
campaigning generally. Wolfson, 811 F.3d at 1178–79 &
nn.2–3. In upholding these provisions, we relied almost
exclusively on Williams-Yulee. Id. at 1180–86. We first
identified a broad compelling interest in preserving public
confidence in the judiciary’s integrity without going through
the interest analysis conducted in White I. Id. at 1182. We
then addressed and rejected the challenger’s contention that
the restrictions were both under- and overinclusive.
The challenger’s underinclusivity argument was the same
one accepted by the Eighth Circuit in White II and our court
in Sanders County: the restriction was not narrowly tailored
because, among other things, it permitted judicial candidates
to endorse persons and entities other than political candidates.
5
Justice Scalia—the author of White I—wrote the principal dissent.
He faulted the majority for failing to follow White I by permitting Florida
“to invoke hazy concerns about judicial impartiality,” which he thought
were too malleable for a strict scrutiny analysis. Id. at 1677–78 (Scalia,
J., dissenting). He then questioned whether “allowing personal
solicitations would imperil public faith in judges,” given the “coexistence
of judicial elections and personal solicitations for most of our history.” Id.
at 1678. And even if Florida’s prohibition did improve the public
reputation of judges, Justice Scalia reasoned that it would still fail strict
scrutiny because of its under- and overinclusivity. Id. at 1679–82.
FRENCH V. JONES 17
Id. at 1183. But that argument, we held, was no longer
persuasive in light of Williams-Yulee. Id. Although
“Williams-Yulee may have been about a prohibition on direct
candidate solicitations of campaign contributions, . . . the
Supreme Court’s reasoning was broad enough to encompass
underinclusivity arguments aimed at other types of judicial
candidate speech prohibitions such as [the endorsement and
campaign prohibitions].” Id. There was no need to “question
whether Arizona could have . . . prohibited more types of
endorsements or campaign participation” because Arizona
was entitled to focus on only the most pressing concerns
associated with “a judicial candidate actively engag[ing] in
political campaigns.” Id. at 1184.
As to overinclusivity, we acknowledged that Arizona’s
restrictions reached actions that were unlikely to have any
effect on judicial impartiality, such as a judicial candidate’s
endorsement of the President of the United States. Id. But
yet again, “Williams-Yulee forclose[d] [this] argument[].” Id.
Following the lead of the Supreme Court, we declined to
draw “unworkable and unnecessary line[s].” Id. at 1185. It
was simply not “our proper role to second-guess Arizona’s
decision[]” to prohibit judicial candidates from engaging in
political campaigns, even if that prohibition encompassed
“political acts [that] present different levels of impropriety in
different situations.” Id. We therefore held that Arizona’s
restrictions were narrowly tailored to achieve Arizona’s
interest in upholding public confidence in the judiciary. Id.
at 1186.
3
This summary evidences a change in the courts’ approach
to state regulation of nonpartisan judicial elections. Although
18 FRENCH V. JONES
there are several important differences between the cases we
have described, perhaps the most important one of all, at least
for our purposes, is the way in which White I, White II, and
Sanders County, on the one hand, and Williams-Yulee and
Wolfson, on the other, approached the challengers’
underinclusivity arguments. And that difference might be
more fundamental than it seems. According to White I, the
underinclusivity of Minnesota’s restriction revealed that its
underlying purpose was not judicial impartiality, “but the
undermining of judicial elections.” 536 U.S. at 782; see also
Williams-Yulee, 135 S. Ct. at 1681 (Scalia, J., dissenting)
(“[The Florida restriction’s] scope suggests that it has nothing
to do with the appearances created by judges’ asking for
money, and everything to do with hostility toward judicial
campaigning.”). That is, the problem Minnesota faced
stemmed from the very scheme of judicial elections, which
threatened judicial impartiality in and of itself. White I,
536 U.S. at 782 (“[E]lected judges—regardless of whether
they have announced any views beforehand—always face the
pressure of an electorate who might disagree with their
rulings and therefore vote them off the bench.”). Minnesota’s
attempts to address the problem without abandoning its
election scheme served only to deprive voters of relevant
information while failing to eliminate the underlying source
of actual or perceived judicial bias. Id. at 788 (“[T]he greater
power to dispense with elections altogether does not include
the lesser power to conduct elections under conditions of
state-imposed voter ignorance.” (alteration in original)).
Consequently, after White I, a state was left with limited
options in regulating its judicial elections because such
FRENCH V. JONES 19
regulations would be almost always underinclusive.6 That is
why in Sanders County, we considered appointment of judges
a “less restrictive alternative” able to accomplish the state’s
goal of judicial impartiality. 698 F.3d at 747.
But the Williams-Yulee majority viewed things
differently. It saw a middle ground where “policymakers
[could] focus on their most pressing concerns” without
completely eliminating the judicial bias (or perception
thereof) associated with judicial elections generally.
Williams-Yulee, 135 S. Ct. at 1668. In other words, a state
could both abridge some judicial-campaign speech and
preserve its election system—“[t]he First Amendment does
not put a State to [an] all-or-nothing choice.” Id. at 1670.
The Court thus sustained Florida’s prohibition on personal
solicitations, despite the fact that other methods of solicitation
might also undermine judicial impartiality, because a
complete ban would put an end to judicial elections
altogether. Id.; see also id. at 1681 (Scalia, J., dissenting)
(“One cannot have judicial elections without judicial
campaigns, and judicial campaigns without funds for
campaigning, and funds for campaigning without asking for
them.”). As our court in Wolfson held, moreover, this view
of underinclusivity extends not just to restrictions on
campaign contributions but also “encompass[es]
6
We note that White I “neither assert[ed] nor impl[ied] that the First
Amendment requires campaigns for judicial office to sound the same as
those for legislative office.” Id. at 783. But we think it is nonetheless
clear that White I envisioned as permissible only those regulations that
targeted threats to impartiality more salient and direct than those inherent
in a system of judicial elections. For instance, White I thought it plausible
that campaign promises in particular might pose a “special threat to open-
mindedness” that could be potentially redressible through regulation. Id.
at 780–81.
20 FRENCH V. JONES
underinclusivity arguments aimed at other types of judicial
candidate speech prohibitions.” 811 F.3d at 1183.
B
Against this background, we turn to Montana’s Rule
4.1(A)(7). As we have already mentioned, it prohibits
judicial candidates like French from “seek[ing], accept[ing],
or us[ing] endorsements from a political organization, or
partisan or independent non-judicial office-holder or
candidate . . . .” Mont. Code of Judicial Conduct Rule
4.1(A)(7). Because Rule 4.1(A)(7) is a content-based
restriction on speech, we may uphold it only if it is narrowly-
tailored to achieve some compelling state interest. Wolfson,
811 F.3d at 1180–81.
We discern two such interests here. The first is an interest
in both actual and perceived judicial impartiality. In
Williams-Yulee, the Court noted “the regrettable but
unavoidable appearance that judges who personally ask for
money may diminish their integrity.” 135 S. Ct. at 1667.
Likewise, we note here the regrettable but unavoidable
consequence that judges who personally ask for political
endorsements may diminish the public’s faith in the
impartiality of the judiciary, whether a judge’s actual
impartiality is affected or not. Seeking and using political
endorsements may create the appearance that a judge will
favor certain politicians or political parties and thereby
“undermine the public’s confidence that judges base rulings
on law, and not on party affiliation.” Wolfson, 811 F.3d at
1183, 1186. We need not define Montana’s interest in terms
more specific than these, for “no one denies that [this interest]
is genuine and compelling.” Williams-Yulee, 135 S. Ct. at
1667.
FRENCH V. JONES 21
Rule 4.1(A)(7) furthers a second interest that might be
more compelling still: a related but distinct interest in a
structurally independent judiciary. See Wolfson, 811 F.3d at
1186–88 (Berzon, J., concurring). If judicial candidates,
including sitting judges running for reelection, regularly
solicit and use endorsements from political parties, the public
might view the judiciary as indebted to, dependent on, and in
the end not different from the political branches. One way to
preserve the distance between the judiciary and the political
branches is to place the judiciary on a different footing and do
so in a way that is visible to the public. The federal system
insulates the third branch from partisan activities by
separating judges from the direct-election process. Some
states have followed the federal model; others have adopted
an appointment-and-retention-election model; and still others
have decided on elections.7 These systems have their critics
and their defenders. It is not for us to choose among these
systems because the U.S. Constitution does not prescribe any
particular form for state judicial elections. What is sufficient
for our purposes is to observe that these various models all
treat the selection of judges differently from the processes for
choosing our other public officials. That fact alone separates
the judicial branch from the political branches. Montana has
chosen to structure its third branch differently from the
political branches, and we cannot fault its efforts to reinforce
that choice in the manner in which it elects its judges. The
Federalist No. 78 at 466 (“‘[T]here is no liberty, if the power
of judging be not separated from the legislative and executive
powers.’” (citation omitted)).
7
See Methods of Judicial Selection, NAT’L CTR. FOR ST. CTS.,
http://www.judicialselection.us/judicial_selection/methods/selection_of
_judges.cfm?state= (last visited Oct. 17, 2017).
22 FRENCH V. JONES
French and his amicus curiae nonetheless contend that
Rule 4.1(A)(7) cannot survive strict scrutiny because is
underinclusive, overinclusive, and otherwise insufficiently
tailored to any interests Montana might have. Although these
arguments might have been persuasive in the pre-Williams-
Yulee era, they no longer carry the day. As we explain below,
Rule 4.1(A)(7)’s scope is sufficiently narrowly tailored to
pass muster under the First Amendment.
1
French’s primary claim is that Rule 4.1(A)(7) is fatally
underinclusive. To begin with, French correctly points out
that the rule prohibits candidates from seeking and using
endorsements from political organizations but does not forbid
any interest groups, corporations, and other entities from
making such endorsements. This same argument persuaded
the court in White II to invalidate a provision almost identical
to Rule 4.1(A)(7), 416 F.3d at 758, and was successful in
convincing our court in Sanders County to strike down a
different Montana restriction, 698 F.3d at 747. But White II
and Sanders County were decided before Williams-Yulee
clarified that “the First Amendment imposes no freestanding
‘underinclusiveness limitation’” and that “policymakers may
focus on their most pressing concerns.” 135 S. Ct. at 1668(citation omitted). Relying on these pronouncements,
Wolfson held that an endorsement provision—one that
prohibited judicial candidates from endorsing individuals
running for a political office—was not invalid simply because
it “allow[ed] judicial candidates to endorse public officials
and non-candidates.” 811 F.3d at 1183. We reached this
conclusion despite the possibility that “Arizona could have
. . . prohibited more types of endorsements or campaign
participation.” Id. at 1184.
FRENCH V. JONES 23
Wolfson’s repudiation of French’s argument aside,
political parties are simply not the same as interest groups
and private individuals. Parties have comprehensive
platforms, take firm positions on a multitude of issues, and
are capable of exerting more influence in an election than
most (if not any) interest groups. The Supreme Court
described the “salient” and “real-world differences between
political parties and interest groups” in McConnell v. Federal
Election Commission:
Interest groups do not select slates of
candidates for elections. Interest groups do
not determine who will serve on legislative
committees, elect congressional leadership, or
organize legislative caucuses. Political parties
have influence and power in the Legislature
that vastly exceeds that of any interest group.
As a result, it is hardly surprising that party
affiliation is the primary way by which voters
identify candidates, or that parties in turn have
special access to and relationships with
federal officeholders.
540 U.S. 93, 188 (2003), overruled on other grounds by
Citizens United, 558 U.S. 310.
Once we turn to Montana’s interest in judicial
independence (as opposed to mere judicial impartiality) the
differences between political parties and interest groups grow
starker. An endorsement from a political party threatens the
public perception of judicial independence to a greater degree
than an endorsement from an interest group. In all cases, an
endorsement suggests the possibility of a quid-pro-quo
exchange in which a judge may rule favorably for the
24 FRENCH V. JONES
endorsing entity. But whereas a judge may only infrequently
encounter litigation implicating an endorsing interest group,
he or she is likely to often face legislation an endorsing
political party has either supported or opposed. 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. For all these reasons, Montana is well
within its authority to focus its immediate concern on
endorsements from political parties.
French next suggests that Rule 4.1(A)(7) is impermissibly
underinclusive because Montana permits candidates to solicit
and use political parties’ money but not their endorsements.
We are not persuaded. Endorsements and campaign
contributions are different kinds of support. An endorsement
is a public and easily communicable show of solidarity.
Although most campaign contributions are also public
information, see Mont. Code Ann. § 13-37-229, they are less
forceful and less easily communicable. Unlike endorsements,
information on campaign contributions typically requires
extra work for voters to access. It would therefore not be
surprising for judicial candidates to derive more value from
endorsements from political parties and popular politicians
(including politicians outside Montana) than from even
sizeable donations. Montana could reasonably conclude that
endorsements are more suggestive of a quid-pro-quo
exchange and pose a greater risk to the public perception of
its judiciary than donations. Thus, we decline to disturb
Montana’s determination that monetary donations “present
markedly different appearance to the public,” Williams-Yulee,
135 S. Ct. at 1669, than a candidate’s use of a political
endorsement.
FRENCH V. JONES 25
French’s remaining reasons for deeming Rule 4.1(A)(7)
unconstitutionally underinclusive are the weakest. French
complains that the rule applies only during campaigns and
only to endorsements from “non-judicial office-holders.” But
in order to create an impartial and independent judiciary, it
makes perfect sense for Montana to prohibit the solicitation
and use of endorsements during (as opposed to before) a
judicial candidate’s campaign and limit those endorsements
to political office holders and entities (as opposed to
nonpartisan judges). It is almost self-evident that the dangers
of actual and perceived bias and dependence are not nearly as
great when the candidate is not yet running for office or when
she uses endorsements from nonpartisan judges. According
to French, Montana may ban the use of endorsements only if
it bans the use of all endorsements from any individuals or
entities at any time. But “[t]he First Amendment does not put
a State to that all-or-nothing choice.” Williams-Yulee, 135 S.
Ct. at 1670.
French’s amicus appears to make an additional
argument—one that was accepted in White II. It goes like
this: A candidate’s discussion of her endorsements with the
public is not all that different from a discussion of other
important issues because a party label is just a “shorthand for
the [numerous] views the candidate holds.” White II,
416 F.3d at 754. And because White I made clear that a
restriction on the candidates’ announcement of views is
woefully underinclusive, a restriction on the use of political
endorsements must be as well. We cannot accept this
argument. The seeking and using of political endorsements
is nothing like announcing one’s views on certain issues. 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
26 FRENCH V. JONES
unknown candidate and indicate that he or she is capable of
mounting a successful campaign. Such things of value are
usually not given out for free, and even when they are, the
mere perception of quid pro quo in judicial campaigns might
undermine the public’s trust in the impartiality and
independence of its judiciary.
Along these same lines, French’s amicus suggests that
Wolfson is distinguishable because the restriction there
prohibited candidates from speaking about others but not
themselves. While Wolfson did state that “Arizona’s
prohibitions do not prevent judicial candidates from
announcing their views on disputed legal and political
subjects,” Rule 4.1(A)(7) here does not prohibit candidates
from “announcing their views on disputed legal and political
subjects.” 811 F.3d at 1185. Candidates in Montana are still
free to discuss political issues with their electorate. They can
speak on abortion, criminal sentencing, healthcare, gun
control, and dozens of other matters of controversy. What
they cannot do is tell their electorate that a political party has
given their candidacy a valuable stamp of approval. That
restriction is not unconstitutionally underinclusive because it
addresses a very specific concern present whenever a
candidate for a nonpartisan office receives something of value
from a partisan organization.
2
French and his amicus next argue that Rule 4.1(A)(7) is
overinclusive because, unlike the solicitation restriction in
Williams-Yulee, Montana does not allow even the candidates’
campaign committees to seek and use political endorsements.
Mont. Code of Judicial Conduct Rule 4.1(B) (providing that
“[a] judge or judicial candidate shall take reasonable
FRENCH V. JONES 27
measures to ensure that other persons do not undertake, on
behalf of the judge or judicial candidate, any activities
prohibited in paragraph (A)”). But that is hardly a fair
criticism of Rule 4.1(A)(7). Montana’s interests in an
impartial and independent judiciary do not diminish simply
because it is the candidate’s affiliates who go around telling
voters about the political endorsements the candidate has
received. The danger lies in the public losing trust in its
judges from hearing political endorsements; it is irrelevant
whether the candidate or the candidate’s committee delivers
the message.
But even accepting that a committee engaging in
prohibited conduct threatens judicial impartiality and
independence to a lesser degree, the Supreme Court has told
us that “the First Amendment does not confine a State to
addressing evils in their most acute form.” Williams-Yulee,
135 S. Ct. at 1671. Following the lead of Williams-Yulee and
Wolfson, we decline to draw such arbitrary and unnecessary
lines. Id.; Wolfson, 811 F.3d at 1185. Montana has
reasonably determined that both candidates and their
committees pose a threat to its judiciary when they seek,
accept, or use political endorsements in their campaigns.
This “considered judgement[] deserve[s] our respect.”
Williams-Yulee, 135 S. Ct. at 1671.
3
Finally, French asserts that Rule 4.1(A)(7) is generally not
narrowly tailored because Montana has presented no evidence
showing that political endorsements cause harm. Indeed, as
French rightly notes, several states not only allow but require
political endorsements because their judicial elections are
partisan. But neither of these two points defeats Rule
28 FRENCH V. JONES
4.1(A)(7); the Court has not treated judicial elections as an
either/or proposition, requiring any state that chooses to have
judicial elections to conduct them like all other elections. As
to the lack of evidence, the Supreme Court has flatly stated
that “[t]he concept of public confidence in judicial integrity
. . . does [not] lend itself to proof by documentary record.”
Id. at 1667. Montana need not present empirical evidence of
something as abstract as a decrease in actual or perceived
judicial impartiality and independence for its rule to survive
strict scrutiny. And as to the point regarding states with
partisan judicial elections, neither Williams-Yulee nor
Wolfson so much as thought about invalidating restrictions
designed to preserve nonpartisanship in judicial elections
simply because there are some states that have partisan
elections and appear to be doing just fine. If that fact alone
were sufficient to invalidate a restriction on judicial-
campaign speech, then nonpartisan judicial elections could be
themselves deemed unconstitutional. We decline to reach
such a result.
Although French suggests that eliminating judicial
elections altogether would be a less restrictive means to
accomplishing Montana’s stated goals, Williams-Yulee and
Wolfson foreclose that suggestion. Those cases confirm that
the states have every right to devise and regulate a system of
nonpartisan judicial elections. Williams-Yulee, 135 S. Ct. at
1671; Wolfson, 811 F.3d at 1185. The Constitution does not
demand that the states follow the federal model and appoint
their judges, and if it permits the states to hold partisan
judicial elections, we see no impediment to the states
adopting nonpartisan judicial elections, as Montana has done.
* * *
FRENCH V. JONES 29
We hold that Montana has compelling interests in an
impartial and independent judiciary. Rule 4.1(A)(7) is
narrowly tailored to those interests because it strikes an
appropriate balance between a candidate’s speech and
Montana’s interest in an independent and impartial judiciary.
French’s arguments to the contrary are foreclosed by the
Supreme Court’s decision in Williams-Yulee and our decision
in Wolfson.
AFFIRMED.