Metropolitan News-Enterprise


Monday, August 19, 2013


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Ninth Circuit Denies En Banc Rehearing of Ruling Allowing Parties to Support Judicial Candidates


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals Friday rejected Montana’s request for en banc rehearing of a ruling striking down its laws banning political parties from endorsing judicial candidates and spending money on their behalf.

Without dissent, the full court left standing the June 21 ruling by a panel made up of Judges Mary M. Schroeder and Ronald M. Gould and Jed S. Rakoff, a senior district judge from New York, sitting by designation. That panel, in an opinion by Rakoff, said the court was bound by last year’s ruling in Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741 (9th Cir. 2012), which held that the laws violated the First Amendment.

The panel did, however, overturn a portion of a district court injunction that struck down a separate law barring direct party contributions to judicial campaigns. The district judge, Rakoff explained, was apparently under the erroneous impression that last year’s ruling invalidated that provision, when the court in fact had not ruled on the issue.

In asking for an en banc review that could have abrogated the prior ruling, the state said the case was a matter of exceptional importance, and that the court should restore Montana’s authority to determine how to maintain an impartial and nonpartisan judiciary.

Montana’s system of judicial elections reflects a deeply ingrained and repeatedly confirmed sovereign decision by the state and its voters, Assistant Attorney General Michael Black wrote in the petition.

A decision has not been made whether to take the appeal to the U.S. Supreme Court, attorney general spokesman John Barnes said.

“We’re looking at our options and will be making a decision on how to proceed from here,” Barnes said in an emailed response to an Associated Press query.

The Sanders County Republican Party committee sued the state in 2012, saying it wanted to endorse candidates who share its judicial philosophy, “given the increasing intrusions by state judges into areas of policy reserved to the Montana Legislature.”

Adding the voices of political parties to the public debate would not change the nonpartisan elections, but to suppress those voices is a violation of their First Amendment free-speech rights, the political committee argued.

The state responded that political parties have no constitutional right to partisan activity in nonpartisan elections. Montana’s judicial elections have been nonpartisan since 1935, which reflects the judgment of its citizens, it said.

The U.S. Supreme Court’s 2010 Citizens United decision made it clear that First Amendment rights apply to Montana’s ban on partisan judicial endorsements, the Ninth Circuit said in last year’s ruling.

The Sanders County Republicans were represented by Bozeman attorney Matthew Monforton, a former Los Angeles County deputy district attorney who has represented the Association of Deputy District Attorneys in labor matters.

“We are very pleased that the Ninth Circuit continues to uphold the First Amendment rights of all persons in the state of Montana,” Monforton said.

The case is Sanders County Republican Central Committee v. Fox, 12-35816.


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