United States District Court, D. Montana, Helena Division
W. Mollny, District Judge.
Robert Myers ("Myers") brings this action for
declaratory and injunctive relief, seeking a determination
that certain rules of professional conduct prohibiting false
statements by and about judicial candidates are
unconstitutional on their face and as applied under the First
and Fourteenth Amendments to the United States Constitution.
Myers seeks partial summary judgment as to his facial
challenge under the First Amendment, (Doc. 54), and Defendant
Michael Cotter, Chief Disciplinary Counsel for the State of
Montana ("the State"), moves for summary judgment
on all Myers' claims, (Doc. 49). Magistrate Judge
Jeremiah Lynch entered Findings and Recommendation on August
30, 2017, recommending Myers' motion be denied and the
State's motion granted. (Doc. 72.)
parties are entitled to de novo review of the
specific findings or recommendations to which they object. 28
U.S.C. § 636(b)(1). The Court reviews the findings and
recommendations that are not specifically objected to for
clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear
error exists if the Court is left with a "definite and
firm conviction that a mistake has been committed."
Concrete Pipe & Prods, of Cal, Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602, 623
(1993) (internal quotation marks omitted). Myers filed
objections on September 12, 2017, (Doc. 75), to which the
State responded, (Doc. 76).
outlines 12 objections in his filing. (Doc. 75.) The State
disagrees with Myers' objections on the merits, but also
argues that because the objections were filed one day after
the deadline, (see Doc. 72 at 27 (requiring
objections be filed by September 11, 2017)), the Findings and
Recommendation need only be reviewed for clear error. (Doc.
76.) Because Myers' objections lack merit even when
reviewed de novo, the Court adopts in full Judge
Lynch's Findings and Recommendation. As the parties are
familiar with the factual and procedural background, it will
not be restated here.
objections are almost all precluded by Williams-Yulee v.
Florida Bar, ___ U.S. ___, 135 S.Ct. 1656
(2015). He insists that the State may not restrict false
statements by and about judicial candidates and lawyers in
the context of judicial elections. Contrary to his position,
"[a] State may restrict the speech of a judicial
candidate .. . if the restriction is narrowly tailored to
serve a compelling interest." Williams Yulee,
135 S.Ct. at 1665. Because such a showing has been made here,
summary judgment is granted in favor of the State.
Objections 1 and 5: Compelling Interest
first argues that the State has failed to meet its burden of
showing a compelling interest in limiting the false speech of
lawyers and judicial candidates. As part of his objection,
Myers rehashes his argument that because the speech at issue
is not one of the "historical categories" exempted
from First Amendment protection, it cannot be regulated such.
As explained above, Myers is incorrect. Williams
Yulee, 135 S.Ct. at 1665; see Wolfson v.
Concannon, 811 F.3d 1176, 1180-81 (9th Cir. 2016).
further argues that because the State's purposes and
interests are not outlined in the regulations or their
comments, the State failed to identify a compelling interest
to justify the challenged restrictions. Contrary to
Myers' arguments, the comments in Montana's Code of
Judicial Ethics do in fact address this compelling interest.
(See Doc. 51 at 16.) Moreover, the Supreme Court has
determined that "public perception of judicial integrity
is a state interest of the highest order."
Williams-Yulee, 135 S.Ct. at 1666. An interest Myers
concedes is compelling. (See Doc. 56-2 at 14.)
Objections 1 and 5 are not well-taken.
Objections 2, 3, 4, and 11: Applicable Caselaw
further objects on the grounds that the interest of
"judicial impartiality" identified in
Williams-Yulee is distinguishable from the interests
implicated here. Myers' position is unpersuasive,
however, as Williams-Yulee's discussion of the
"public confidence in the integrity of the judiciary,
" 135 S.Ct. at 1666, is the very same interest
identified by Montana's professional rules of conduct.
Myers also argues that Williams-Yulee does not
overrule Republican Party of Minnesota v.
White, 536 U.S. 765 (2002), or United States v.
Alvarez, ___ U.S. ___, 132 S.Ct. 2537 (2012). And, he
insists that U.S. District Court for the Eastern
District of Washington v. Sandlin, 12 F.3d 861, 865
(1993), and Standing Committee on Discipline of the
United State District Court for the Central District of
California v. Yagman, 55 F.3d 1430 (9th Cir. 1995), are
inconsistent with Alvarez, and are therefore
unconstitutional. Myers is mistaken in his belief that the
findings of Judge Lynch are inconsistent with Supreme Court
jurisprudence or that Alvarez overruled all existing
First Amendment law. Williams-Yulee, which was
decided after Alvarez, makes clear that there is a
difference between speech in political and judicial
elections, and that difference makes restriction of speech in
the judicial election context possible. 135 S.Ct. at 1667.
Objections 2, 3, 4, and 11 are not well-taken.
Objection 6: Reliance on Montana Supreme Court
argues that the State has not met its burden under Rule 56
because it "has relied entirely upon the opinions of the
Montana Supreme Court in its motion." (Doc. 75 at 7.)
However, as argued by the State, Myers misreads Judge
Lynch's findings, which id not rely on the relevant
Montana Supreme Court decisions to conclude that Myers'
statements were in fact false, but rather, to show that
Myers' statements are "capable of being proved true
or false." That is operative question under
Yagman. 55 F.3d at 1438. Objection 6 is not
Objections 7 and 8: Less ...