By Nate Raymond
Montana knows Citizens United v. Federal Election Commission.
Its state Supreme Court refused to follow the landmark U.S.
Supreme Court ruling on corporate spending in elections, only to
watch the U.S. Supreme Court reverse the state law in June.
Now Montana has suffered another election-law defeat at the
hands of Citizens United, this one removing the state's
restrictions on endorsements by political parties in
non-partisan judicial elections. In a 2-1 decision on Monday,
the 9th Circuit Court of Appeals held that the Montana law
violated the First Amendment by criminalizing free speech. U.S.
Senior District Judge Jed Rakoff of New York, sitting by
designation, said Montana "can derive no legally cognizable
benefit from being permitted to further enforce an
unconstitutional limit on political speech."
Montana is one of 14 states that hold non-partisan elections
for judicial candidates, according to the American Judicature Society. On its face, the 9th Circuit's decision doesn't change
the principle of non-partisanship in Montana; according to
footnotes in the ruling, the state may still restrict parties
from nominating judges or listing their affiliation on the
ballot. Nor did the Sanders County Republican Central Committee,
which brought the case, challenge Montana's ban on direct
contributions to judicial candidates, leaving that law in place
But Matthew Monforton, who represented the Republican group
at the 9th Circuit, said the ruling is a game changer. Montana
was one of only two states to restrict party endorsements.
(South Dakota is the other, Monforton said.) Until now, that
bar, enacted in 1935, impeded parties like the Sanders County
Republicans from getting involved publicly in races for the
Montana Supreme Court, where six of the seven judges "can fairly
be considered as liberal," Monforton said. The Sanders County
Republicans plan to issue an endorsement by Friday on the most
competitive of those contests, he said, between criminal defense
lawyer Ed Sheehy and Judge Laurie McKinnon.
Monforton declined to say which candidate the party would
endorse. But it's clear the 9th Circuit ruling coupled with the
U.S. Supreme Court decision in June is having an impact on the
Montana Supreme Court race. On Sheehy's website, he states that
before a primary election in June, a Montana company took
advantage of the U.S. Supreme Court's recent ruling reversing
the state Supreme Court on independent political spending by
corporations, mailing literature against him and another
candidate and in favor of McKinnon. (Sheehy didn't respond to
requests for comment.)
McKinnon said in an email that, as a sitting judge, she's
prevented from accepting partisan endorsements. "Personally, I
have never given a penny to either side of the political aisle,"
she said. "I have maintained a long history of neutrality, this
decision won't change that."
This type of politicization of judicial elections is exactly
what 9th Circuit Judge Mary Schroeder warns about in her dissent
from the appeals court's ruling on Monday. Calling the opinion a
"big step backwards" for Montana, Schroeder said the majority
decision marked the first time a court has permitted political
parties to endorse judicial candidates in a state that holds
non-partisan elections. "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," she said.
This is not the first time that federal courts have looked
at how state judicial elections are conducted. In 2002, the
Supreme Court knocked down a Minnesota law that barred judicial
candidates from discussing their views on legal and political
issues. In her dissent on Monday, Schroeder contended that the
Montana decision would amount to an "unwarranted extension" of
that 2002 ruling, and would lead to "political indebtedness."
Some election lawyers said they were not surprised by the
9th Circuit decision, calling it a natural extension of Citizens
United and the 2002 Minnesota case. "(Judges) think they're
special, and we do too, but not in First Amendment context,"
said Jan Baran, an election-law specialist at Wiley Rein.
Nevertheless, the Montana ruling continued a slide backwards
in attempts to protect the judiciary from political influence,
said Bert Brandenburg, the executive director of the Justice at Stake Campaign, a Washington group that is critical of the
judicial election process. "It brings Montana another step
closer to an environment where judges are pressured to decide
cases based on big money and party politics," he said.
In a statement, Montana Attorney General Steve Bullock said
he was "extremely disappointed" by the 9th Circuit ruling.
"Without a truly independent and nonpartisan judiciary,
Montanans may no longer continue to trust the integrity of the
legal system they rely on to see that justice is done," he said.
A spokeswoman said Bullock's office was reviewing its options
for further appellate review.
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