Myers v. Thompson
Filing
19
OPINION and ORDER: It is Ordered that the parties' respective motions (Docs. 5, 13) are DENIED. Signed by Judge Donald W. Molloy on 6/28/2016. (HEG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
FILED
JUN 2 8 2016
Cieri<, U S District Court
District Of Montana
Missoula
CV 16-45-H-DWM-JCL
ROBERT MYERS,
Plaintiff,
OPINION
and ORDER
vs.
SHAUN R. THOMPSON, in his
official capacity as Chief Disciplinary
Counsel for the State of Montana,
Defendant.
Attorney Robert Myers ("Myers") seeks declaratory and injunctive relief in
this case. He argues that certain professional rules of conduct that prohibit false
statements violate the Free Speech Clause of the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment. (Docs. 1, 11.) The narrow
prohibition concerns any false statements by and about judicial candidates.
Myers seeks to enjoin the Office of Disciplinary Counsel from enforcing Canon
4.l(A)(lO) of the Montana Code of Judicial Conduct and Rule 8.2(a) of the
Montana Rules of Professional Conduct on the grounds that he is currently a
candidate for district judge in Ravalli County and his ability to effectively
campaign "has been stymied by being threatened with discipline for broadcasting a
1
truthful advertisement about his opponent, Judge Jeffrey Langton." (Doc. 5 at 2.)
The defendant filed a motion to dismiss Myers's as-applied challenges for lack of
standing and ripeness and to dismiss Myers's complaint under the Younger
1
doctrine. (Doc. 13.) A hearing on the motions took place on June 22, 2016. Each
of the motions is denied.
BACKGROUND
The Montana Supreme Court established the Office of Disciplinary Counsel
("ODC") for the purpose of enforcing professional conduct by Montana-licensed
attorneys. ODC processes, investigates, and prosecutes complaints filed against
Montana attorneys. The Commission on Practice hears and decides complaints
filed by ODC and makes recommendations to the Montana Supreme Court for
disciplining attorneys. The Supreme Court considers such recommendations,
issues a written decision, and imposes whatever discipline, if any, it deems
appropriate. Defendant Shaun Thompson currently serves as Chief Disciplinary
Counsel for ODC.
On March 15, 2016, Myers filed a C-1 "Statement of Candidacy" with the
Commissioner of Political Practices so that he could run for the position of District
Judge for the Twenty-First Judicial District of Montana, Department 1. That
1
Younger v. Harris, 401 U.S. 37, 43-45 (1971).
2
position is currently held by his incumbent opponent, Judge Jeffrey Langton. As
part ofMyers's campaign, Myers caused to be broadcast a campaign
advertisement critical of Judge Langton' s handling of a child custody matter
involving one ofMyers's clients, Dan Cox. The advertisement was narrated by
Cox and stated:
This is Dan Cox and I have a warning for you. I caught Judge Jeff
Langton committing fraud on the court. He was secretly communicating
with attorneys for the other party. He denied me a chance to respond and
prevented me from fully presenting my case. Robert Myers was the only
attorney who helped me stand up to this corruption. All I was asking for
was a new judge to determine how his conduct affected my ability to
have a fair hearing. Not only did JeffLangton not allow a neutral judge
to look at his conduct, but he stopped all witnesses including himself
from being questioned. He of course found himself innocent without a
hearing. No judge should judge his own conduct. Shame on Jeff
Langton for retaliating against my lawyer, and shame on JeffLangton for
not giving me and my children a fair hearing. Paid for by Myers for
Judge.
(Amend. Compl., Doc. 11 at 'if 29.) The advertisement was broadcast several times
from late April 2016 through late May 2016 on KGVO, a radio station in Missoula
whose broadcasts can be received in Ravalli County. The advertisement makes
multiple factual assertions that are of questionable veracity. Many of the
assertions have previously been rejected by the Montana Supreme Court. See Cox
v. Cox, 348 P.3d 673 (Mont. 2015) (table); Myers v. Twenty-First Jud. Dist. of
Mont., 353 P.3d 506 (Mont. 2015) (table).
3
On May 27, 2016, ODC's Deputy Disciplinary Counsel Jon Moog sent an
email to Myers with an investigative letter attached to it. The letter stated that
ODC "has initiated an investigation into [Myers' s] advertising campaign for
election to District Court Judge for Ravalli County, for potential violations of Rule
8.2 [of the Montana Rules of Professional Conduct], and Canon 4 of the Montana
Code of Judicial Conduct." (Ex. 1, Doc. 11-1.) The letter also directed Myers to
provide "digital copies of all published campaign materials, whether written,
video, or audio, including all television or radio advertisements, with written
transcripts, aired by [his] campaign" as well as "invoices and publishing contracts
related to all advertising materials, including the publishing date and frequency of
all materials." (Id.) Myers was further told to produce "any internet/social
network posting" by him, his campaign, or affiliated campaign committees/groups.
(Id.) Counsel for Myers faxed a letter to ODC later that day requesting a copy of
the complaint as well as a list of regulations he was suspected of violating. (Ex. 3,
Doc. 11-3 at 2.) Moog responded that same day that ODC had not received a
written complaint but instead "just a transcript of [Myers's] radio advertisement
narrated by Mr. Cox and sent by Judge Langton's law clerk." (Ex. 4, Doc. 11-4).
When further inquiry was made as to what provisions of Canon 4 Myers allegedly
violated, (Ex. 5, Doc. 11-5), Moog responded that "the investigation just began, so
4
I'm not sure what rules might be implicated, but Rules 4.l(A)(lO) and 4.2(A)(3)
look applicable," (Ex. 6, Doc. 11-6).
Rule 8.2(a) of the Montana Rules of Professional Conduct states, "[a]
lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or integrity
of a judge, adjudicatory officer or public legal officer, or of a candidate for
election or appointment to judicial or legal office." Subsection (b) of that rule
further provides that "[a] lawyer who is a candidate for judicial office shall comply
with the applicable provisions of the code of judicial conduct," implicating Canon
4 of the Montana Code of Judicial Conduct. Rule 4.l(A)(lO) states, "[a] judge or
a judicial candidate shall not .. : knowingly or with reckless disregard for the
truth, make any false or misleading statement." Rule 4.2(A)(3) states, "A judicial
candidate shall ... review and approve the content of all campaign statements and
materials produced by the candidate or his or her campaign committee ... before
their dissemination."
On June 6, 2016, Myers filed this lawsuit challenging the constitutionality
of Rule 8.2(a) and Rule 4.l(A)(lO). He does not challenge Rule 4.2(A)(3),
asserting that he reviewed and approved the radio advertisement and stands by it.
Following the filing of this case, Myers received an email from ODC stating:
5
Your federal lawsuit notwithstanding, Mr. Myers' response is still due
as directed, absent an injunction. Your client is free to run any
advertising he wishes, but there will be consequences for untruthful( or
reckless disregard for the truth) advertisements in violation of the Rules,
which will withstand constitutional scrutiny.
(Ex. 8, Doc. 11-8.) Myers wants to continue broadcasting the radio advertisement
discussed above. He claims he will not do so, however, so long as he faces a
threat of prosecution by ODC and subsequent discipline. Indeed, at oral argument
he claimed the Canons kept him from saying anything critical of the incumbent
judge.
ANALYSIS
The State argues Myers lacks standing to bring his as-applied challenges
because he has not suffered an injury in fact and because his challenges are not
ripe in the absence of an ODC complaint. Contrary to the defendant's position,
Myers faces a credible threat of prosecution if he continues to broadcast an ad that
is conceivably false in several respects. And, there is a substantial controversy
between him and ODC. Even so, after listening to arguments and reading the
briefs, Myers is unlikely to succeed on the merits of his claims. For that reason
alone, preliminary injunctive relief is unwarranted.
I.
Motion to Dismiss As-Applied Challenges
The proceedings before ODC are at a preliminary investigative stage, and a
6
complaint has not been filed. (See Doc. 11-4 ("We did not receive a written
grievance .... "); Doc. 11-6 ("The investigation just began.... ").) As a result, the
defendant argues that Myers has not suffered an "injury in fact," a necessary
element of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
To establish "injury in fact," a plaintiff must show a harm that is "concrete and
particularized" as well as "actual or imminent" rather than "conjectural or
hypothetical." Id. at 560. In a First Amendment case, a plaintiff can establish
injury in fact by showing that the threat of an enforcement action against his
speech is sufficiently imminent. Susan B. Anthony List v. Driehaus, _U.S._,
134 S. Ct. 2334, 2342 (2014). "[A] plaintiff satisfies the injury-in-fact
requirement where he alleges 'an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder."' Id. (quoting Babbitt v.
Farm Workers, 442 U.S. 289 (1979)). In Babbitt, the Court concluded the
plaintiffs' fear of prosecution was not "imaginary or wholly speculative" when
they challenged a law that proscribed dishonest, untruthful and deceptive
publicity, the plaintiffs had actively engaged in consumer publicity campaigns in
the past, and they alleged an intention to do so in the future. 442 U.S. at 301-02;
see also Susan B. Anthony List, 134 S. Ct. at 2343-44.
7
Here, Myers has alleged "an intention to engage in a course of conduct
arguably affected with a constitutional interest." Babbitt, 442 U.S. at 298. Myers
states that he "desires to again broadcast the radio advertisement" and intends to
run for office again in the future even if he is unsuccessful this election cycle.
(Doc. 11
at~~
40, 43.) Myers's intended future conduct is "arguably ...
proscribed by [the rules]" he wishes to challenge, Babbitt, 422 U.S. at 298,
because Montana's false statement provisions cover the subject matter of his
speech. While Myers presents no evidence of a history of past enforcement of
these particular provisions, see Susan B. Anthony List, 134 S. Ct. at 2345; Winter
v. Wolnitzek, _
F. Supp. 3d _ , 2016 WL 2864418, at *6 (E.D. Ky. May 13,
2016) (finding a credible threat of prosecution where plaintiff provided specific
evidence that the canon at issue had been enforced in the past against someone
engaged in similar behavior), he did receive an email from ODC clearly stating
that "there will be consequences for untruthful (or reckless disregard for the truth)
advertisements in violation of the Rules, which will withstand constitutional
scrutiny," (Ex. 8, Doc. 11-8). Myers faces a sufficiently credible threat of
prosecution as to have standing.
The defendant next argues that Myers' s as-applied challenges are not ripe
because ODC is still investigating and has not made any disciplinary decisions.
8
Whether a constitutional declaratory judgment is ripe depends on whether the
alleged facts, in a totality of the circumstances, "show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment." United
States v. Braren, 338 F.3d 971, 975 (9th Cir. 2003). In Winter, the district court
determined that a plaintiffs claim was not ripe where the disciplinary authority
sent her a letter informing her of a complaint filed against her but disciplinary
action had yet to occur. 2016 WL 2864418, at **18-19. The court determined
that the plaintiffs as-applied challenge "depends on 'contingent future events that
may not occur as anticipated, or indeed may not occur at all."' Id. at * 19 (quoting
Texas v. United States, 523 U.S. 296, 300 (1998)). The procedural posture of this
case is distinguishable. In Winter, the plaintiff had already run the relevant
advertisements and the election was over by the time she received notice of the
complaint. Id. at *2. At that point, the only remaining dispute between the parties
was a post hoc ruling on the propriety of her earlier actions. Here, Myers wants to
engage in conduct he believes will lead to disciplinary action by ODC, bolstered
by knowing ODC is actively investigating him. ODC ordered Myers to turn over
personal and campaign material. (See Doc. 11-1.) It sent him a cautionary email
regarding his decision to air the subject ad going forward. (Doc. 11-8.) A
9
troubling conundrum exists if ODC can actively investigate Myers and threaten
him with prosecution but at the same time avoid judicial review of the
constitutionality of the rules it seeks to enforce. Additionally, the "fitness" and
"hardship" requirements of standing are met because the factual record is
sufficiently developed and Myers will suffer a hardship if this matter were not
heard due to the timing of the case in an election year. See Susan B. Anthony List,
134 S. Ct. at 2347. Accordingly, the defendant's motion to dismiss Myers's asapplied challenges for lack of standing and ripeness is denied.
II.
Abstention under Younger
The Younger doctrine instructs federal courts to abstain from granting
injunctive or declaratory relief when such relief would interfere with pending State
or local proceedings. Younger v. Harris, 401 U.S. 37, 43-45 (1971); Gilbertson v.
Albright, 381 F.3d 965, 98 (9th Cir. 2004). However, the Supreme Court has since
cautioned that a federal court's obligation to hear and decide a case is "virtually
unflagging," and that "[p]arallel state-court proceedings do not detract from that
obligation." Sprint Comms., Inc. v. Jacobs,
-
U.S. -
, 134 S. Ct. 584, 591
(2013) (internal quotation marks omitted). In light of the Sprint decision, the
Ninth Circuit holds that Younger abstention in civil cases "is appropriate only
when the state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement
10
actions or involve a state's interest in enforcing the orders and judgments of its
courts, (3) implicate an important state interest, and (4) allow litigants to raise
federal challenges." ReadyLink Healthcare, Inc. v. St. Compensation Ins. Fund,
754 F.3d 754, 759 (9th Cir. 2014). Only if those threshold requirements are met
should courts consider whether a federal action would have the practical effect of
enjoining the state court action. Id.
Like ReadyLink, this case does not involve a parallel criminal proceeding
and there is no state order or judgment to be enforced. While a proceeding before
the ODC has the potential to be "akin to criminal proceedings," id., ODC's
investigation into this case has not progressed beyond the investigation stage.
Other courts have determined that investigation proceedings, without more, do not
trigger Younger. Compare Mulholland v. Marion Cnty. Election Bd., 746 F.3d
811, 817 (7th Cir. 2014) (holding state investigatory proceedings before a board
that lacked prosecutorial authority were at too preliminary a stage to warrant
federal deference), and Telco Commns., Inc. v. Carbaugh, 885 F.2d 1225, 1228-29
(4th Cir. 1989) (no abstention where agency notified plaintiff of specific charges
and held informal meeting, but investigation was still unfolding), with Middlesex
Cnty. Ethics Comm. v. Garden St. Bar Ass 'n, 457 U.S. 423, 434 (1982) (holding
abstention appropriate where disciplinary authority had filed formal charges
11
against the plaintiff). For the reasons made clear in Sprint and ReadyLink,
abstention is not appropriate here, and the defendant's motion to dismiss on this
basis is denied.
III.
Preliminary Injunction
A preliminary injunction is an extraordinary remedy never awarded as a
matter of right. Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 22 (2008).
"A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest." Id. at 20. The burden is on the party seeking
the injunction to satisfy the Winter elements. Thalheimer v. City of San Diego,
645 F.3d 1109, 1115 (9th Cir. 2011). But, "in the First Amendment context, [on
the merits prong], the moving party bears the initial burden of making a colorable
claim that its First Amendment rights have been infringed, or are threatened with
infringement, at which point the burden shifts to the government to justify the
restriction." Id. at 1116. This is because the government always bears the
ultimate burden of justifying its restrictions on speech. Id.
Myers's verified complaint is treated as an affidavit, and thus may be used
as evidence to support an injunction. Id. Myers brings both facial and as-applied
12
constitutional challenges to Rule 8.2(a) of the Montana Rules of Professional
Conduct and Rule 4.l(A)(lO) of the Montana Code of Judicial Conduct. Rule
8.2(a) prohibits attorneys from making false statements, or speaking with reckless
disregard as to the truth or falsity of such statements, concerning the qualifications
or integrity of a judge or judicial candidate. Rule 4.l(A)(lO) prohibits judicial
candidates from making false or misleading statements generally. If Myers
violates these provisions by airing his advertisement, he may be subject to
discipline through the ODC, the Commission on Practice, and the Montana
Supreme Court, but only if the ad is demonstrably false in its factual assertions.
Myers insists the rules infringe his right to free speech under the First
Amendment. He is correct so far as making false statements that undermine the
integrity of the judiciary. "Judicial candidates have a First Amendment right to
speak in support of their campaigns." Williams-Yulee v. Fla. Bar,_ U.S._,
135 S. Ct. 1656, 1673 (2015); Republican Party ofMinn. v. White, 536 U.S. 785,
788 (2002); see also Gentile v. St. Bar ofNev., 501 U.S. 1030, 1054 (1991)
("[D]isciplinary rules governing the legal profession cannot punish activity
protected by the First Amendment, and that First Amendment protection survives
even when the attorney violates a disciplinary rule he swore to obey when
admitted to the practice of law."). And, false statements are subject to First
13
Amendment protection. United States v. Alvarez,_ U.S._, 132 S. Ct. 2537,
2550 (2012) (plurality). Rule 8.2(a) and Rule 4.l(A)(lO) restrict Myers's speech
on the basis of its content by prohibiting him, as a lawyer and judicial candidate,
from knowingly making false or misleading statements. According to Myers's
verified complaint, he would air his advertisement that is critical of Judge Langton
but he does not for fear of disciplinary action pursuant tp these Rules. As such,
Myers makes a colorable claim that his First Amendment rights have been
infringed, and the burden shifts to the defendant to justify the restrictions on his
speech. Thalheimer, 645 F .3d at 1116.
"A State may restrict the speech of a judicial candidate only if the restriction
is narrowly tailored to serve a compelling interest." Williams-Yulee, 135 S. Ct. at
1665. "'[I]t is a rare case' in which a State demonstrates that a speech restriction is
narrowly tailored to serve a compelling interest." Id. at 1665-66 (quoting Burson
v. Freeman, 504 U.S. 191, 211 (1992) (plurality opinion)). That said, the
provision at issue need only be narrowly tailored, not "perfectly tailored." Id. at
1671. "The impossibility of perfectly tailoring is especially apparent when the
State's compelling interest is as intangible as public confidence in the integrity of
the judiciary." Id. Here, the defendant has met its burden, showing both that the
State has a compelling interest in regulating false and/or misleading speech by
14
lawyers and judicial candidates and that the State's regulations are narrowly
tailored to meet that goal.
A.
Compelling Interest
According to the defendant, the State has an interest in "preserving and
promoting the appearance and actuality of an impartial open-minded judiciary, and
maintaining safeguards against campaign abuses that imperil public confidence in
the judiciary." (Doc. 12 at 15.) The Supreme Court recognizes the "vital state
interest" in safeguarding "public confidence in the fairness and integrity of the
nation's elected judges." Williams-Yulee, 135 S. Ct. at 1666 (quoting Caperton v.
A.T Massey Coal Co., 556 U.S. 868, 889 (2009) (internal quotation marks
omitted)). As explained by the Court,
The importance of public confidence in the integrity of judges stems
from the place of the judiciary in the government. Unlike the executive
or the legislature, the judiciary "has no influence over either the sword
or the purse; ... neither force nor will but merely judgment." The
Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton)
(capitalization altered). The judiciary' s authority therefore depends in
large measure on the public's willingness to respect and follow its
decisions. As Justice Frankfurter once put it forthe Court, "justice must
satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11,
14 (1954). It follows that public perception of judicial integrity is "a
state interest of the highest order." Caperton, 556 U.S. at 889 (quoting
[White, 536 U.S. at 793] (Kennedy, J., concurring)).
Id. Accordingly, states may regulate judicial elections differently than political
15
elections "because the role of judges differs from the role of politicians." Id. at
166 7. Myers acknowledges that judicial integrity and the appearance of judicial
integrity are compelling state interests. (Doc. 6 at 14.) He argues, however, that
the State's rules are not narrowly tailored to meet those interests.
B.
Narrowly Tailored
"A narrowly tailored regulation is one that actually advances the state's
interest (is necessary), does not sweep too broadly (is not overinclusive), does not
leave significant influences bearing on the interest unregulated (is not
underinclusive ), and could be replaced by no other regulation that could advance
the interest as well with less infringement of speech (is the least-restrictive
alternative)." Republican Party ofMinn. v. White, 416 F.3d 738, 751 (8th Cir.
2005). "The First Amendment requires that the Government's chosen restriction
on the speech at issue be 'actually necessary' to achieve its interest." Alvarez, 132
S. Ct. at 2549. "There must be a direct causal link between the restriction imposed
and the injury to be prevented." Id.
Here, the defendant makes a strong showing that the rules are necessary to
achieve the State's interest in ensuring public confidence in the integrity of the
judiciary. The State has chosen to target the conduct it believes most likely to
erode that confidence: false and misleading statements by those entrusted by the
16
States to carry out the law, the lawyers, judicial candidates, and judges. In doing
so, the State's actions are consistent with both the principles underlying Williams-
Yulee and the professional standards in the legal practice. See US. Dist. Ct. for E.
Dist. of Wash. v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993) ("[O]nce a ~awyer is
admitted to the bar, although he does not surrender his freedom of expression, he
must temper his criticisms in accordance with professional standards of
conduct."). Myers insists that the Supreme Court's decision in Williams-Yulee is
inapplicable here because that decision was limited to the factual circumstances of
rules governing personal solicitation by judicial candidates. However, the Ninth
Circuit specifically rejected such a limited factual interpretation in Wolfson v.
Concannon, where the court applied the underlying principles of Williams-Yulee
to other judicial election provisions. 811F.3d1176 (9th Cir. 2016) (addressing
rules prohibiting judicial candidates from soliciting funds for other candidates or
publicly endorsing other candidates). Accordingly, the principles enunciated in
Williams-Yulee apply to this case, undermining Myers's reliance on cases
discussing speech in the political campaign context, see 281 Care Comm. v.
Arenson, 766 F.3d 774, 793 (8th Cir. 2014) (striking down Ohio's prohibition on
false campaign speech), and rendering unpersuasive Myers's arguments as to a
less restrictive alternative, overbreadth, and underinclusiveness.
17
1.
Least Restrictive Alternative
For a rule limiting speech to be narrowly tailored, it "must be the least
restrictive means of achieving a compelling state interest." McCullen v. Coakley,
_U.S._, 134 S. Ct. 2518, 2530 (2014). Myers argues counterspeech is a less
restrictive alternative than regulations that suppress false or misleading speech,
relying on the Supreme Court decision in Alvarez. In Alvarez, the Supreme Court
addressed counterspeech in the context of a First Amendment challenge to the
Stolen Valor Act, explaining "[t]he remedy for speech that is false is speech that is
true. This is the ordinary course in a free society. The response to the unreasoned
is the rational; to the uninformed, the enlightened; to the straightout lie, the simple
truth. . . . The First Amendment itself ensures the right to respond to speech we do
not like, and for good reason." 132 S. Ct. at 2550. While counterspeech may be a
strong alternative in the political election context, the rationale advanced by Myers
does not work to enhance the compelling State interest in judicial elections at
issue here.
Rule 8.2(a) and Rule 4.l(A)(lO) are not meant to protect individual judges
or judicial candidates from scrutiny and criticism. Rather, the rules expressly limit
false and misleading statements on the grounds that the public confidence in the
system, not the individual judge, erodes when false statements are made in judicial
18
races or by judicial candidates. See Standing Comm. on Discipline of US. Ct. For
Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1437-38 (9th Cir. 1995) (noting that
while attorneys play an important role in exposing problems with the judicial
system, ''false statements impugning the integrity of a judge erode public
confidence without serving to publicize problems that justifiably deserve
attention"). As a result, counterspeech is not an effective means to achieve the
State's compelling interest in enhancing public confidence in the integrity of the
judicial system. Counterspeech is the best argument to explore falsehoods in
speech about ideas and beliefs. Counterspeech is the cure to hate speech, to
subversive speech, or to disagreeable political ideas or policies. Counterspeech is
not a remedy to a systemic challenge that is false and undermines the public's
confidence in the third branch of government.
2.
Overbreadth
Myers claims that Canon 4.l(A)(lO) is substantially overbroad because it
applies without regard to subject matter and applies to any setting, including
private conversations. While Myers's argument has some merit when considering
the language of the canon in a vacuum, overbreadth is "judged in relation to the
statute's plainly legitimate sweep." Wolfson, 811 F.3d at 1184 (quoting Wash. St.
Grange v. Wash. St. Republican Party, 552 U.S. 442, 449 n.6 (2008)). In
19
Williams-Yulee, the plaintiff argued that the Florida law that prevented judges
from personally soliciting funds was overbroad because it included a prohibition
of solicitation through mass mailings, which arguably have a lesser impact on the
public confidence in the judiciary than personal solicitation. 135 S. Ct at 1670-71.
The Court rejected this argument, however, reasoning that such distinctions
became so fine as to be unworkable and that Florida's restrictions left judicial
candidates other avenues of speech. Id. The Court emphasized that a narrowlytailored provision need not be "perfectly tailored," stating "most problems arise in
greater and lesser gradations, and the First Amendment does not confine a State to
addressing evils in their most acute form." Id. at 1671. The Ninth Circuit reached
a similar conclusion in Woflson, holding that while Arizona's campaign law may
prohibit a judicial candidate from supporting a presidential candidate and that such
action "may have less of an effect on the public confidence than endorsing or
campaigning for an Arizona State senator or a local prosecutor, creating a rigid
line is as unworkable as it is unhelpful." 811 F.3d at 1185. Implicit in both
decisions is the recognition of the importance of permitting the states room to
regulate their own government and its structure, as well as its accountability.
Here, Canon 4 of the Montana Code of Judicial Conduct is specifically
related to "political and campaign activities of judges and judicial candidates."
20
Montana's provisions do not prevent judicial candidates from announcing their
views on disputed legal or political subjects or making truthful critical statements
about judges or judicial candidates. Judicial candidates are free to express
factually-based opinions and to report truthfully in commenting about an
opponent, including an incumbent judge. While Rule 4.l(A)(lO)'s limitation on
"misleading" speech implicates vagueness concerns, see Winter, 2016 WL
2864418, at **19-20, the "plainly legitimate sweep" of the rule is made clear in
the preface of Rule 4.l(A)(lO), which limits its application to the bounds of the
law. Wolfson, 811 F .3d at 1184. In this case, discipline would not be appropriate
so long as the facts underlying the statement are true. See Yagman, 55 F.3d at
1438.
3.
Underinclusive
Myers further argues that both Canon 4.l(A)(lO) and Rule 8.2(a) are
underinclusive because Canon 4.l(A)(lO) does not apply to statements made prior
to attorneys announcing their candidacy and Rule 8.2(a) applies only to attorneys.
"Underinclusivity creates a First Amendment concern when the State regulates one
aspect of a problem while declining to regulate a different aspect of a problem that
affects its stated interest in a comparable way." Williams-Yulee, 135 S. Ct. at
1670 (emphasis in original). The Supreme Court recognizes that a law can violate
21
the First Amendment by abridging "too little speech." Id. at 1668 (emphasis in
original); see also White, 536 U.S. at 783 (holding the "announce clause" of
Minnesota's Code of Judicial Conduct was not narrowly tailored because "it was
woefully underinclusive, prohibiting announcements by judges (and would-be
judges) only at certain times and in certain forms"). However, the Court has
upheld laws the could have conceivably restricted even greater amounts of speech
on the grounds that "[a] State need not address all aspects of the problem in one
fell swoop; policymakers may focus on their most pressing concerns." Williams-
Yulee, 135 S. Ct. at 1668. In doing so, the Court looked to whether the Florida
provision was "aim[ed] squarely at the conduct most likely to undermine public
confidence in the integrity of the judiciary," "applie[d] evenhandedly to all judges
and judicial candidates, regardless of their viewpoint," and was not "riddled with
exceptions." Id. at 1668-69; see also Wolfson, 811 F .3d at 1183-84. The same can
be said of the rules at issue here.
First, they are aimed at conduct the State has identified as most likely to
undermine public confidence in the integrity of the judiciary, i.e., false statements
of lawyers, judicial candidates, and judges. Second, the rules apply to all lawyers
under Rule 8.2(a) and to all judicial candidates and judges under Rule 4.l(A)(lO).
Finally, there are no exceptions. Similar to the situation in Wolfson and Williams22
Yulee, while Montana might have prohibited more categories of persons from
making false statements in judicial races, "policymakers may focus on their most
pressing concerns" and the fact that the State '"conceivably could have restricted
even great amounts of speech in service of [its] stated interests' is not a death blow
under strict scrutiny." Wolfson, 811 F.3d at 1184 (quoting Williams-Yulee, 135 S.
Ct. at 1668).
Because Myers is unlikely to succeed on the merits of his claim, his motion
is denied and the remaining Winter elements are not addressed. Thalheimer, 645
F.3d at 1115.
CONCLUSION2
Accordingly, IT IS ORDERED that the parties' respective motions (Docs. 5,
13) are DENIED.
rf-
Dated this~ day of June, 2016.
As the Court noted at the hearing in this case, the quality of the briefing and arguments
in this case was refreshing.
2
23
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