Myers v. Thompson
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; granting 49 Motion for Summary Judgment; denying 54 Motion for Summary Judgment; adopting Findings and Recommendations re 72 Findings and Recommendations. Signed by Judge Donald W. Molloy on 9/15/2017. (DED)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
SEP 15 2017
Clerk, U.S Courts
District Of Montana
MICHAEL COTTER, in his official
capacity as Chief Disciplinary Counsel
for the State of Montana,
Plaintiff 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.)
The parties are entitled to de novo review of the specific findings or
recommendations to which they object. 28 U.S.C. § 636(b)(l). 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).
Myers 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.
Myers' 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
Myers 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, 811F.3d1176,
1180-81 (9th Cir. 2016).
Myers 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. 51at16.) 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
Myers 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 ofMinnesota v. White, 536 U.S. 765 (2002), or United States v. Alvarez,_
U.S._, 132 S. Ct. 2537 (2012). And, he insists that US. 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 decisions
Myers 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 well-taken.
Objections 7 and 8: Less Restrictive Alternative
Myers' argument that Montana's professional rules are not narrowly tailored
is precluded by Williams-Yulee, 135 S. Ct. 1667, and ignores the fact "[e]thical
rules that prohibit false statements impugning the integrity of judges ... are not
designed to shield judges from unpleasant or offensive criticism, but to preserve
public confidence in the fairness and impartiality of our system of justice."
Yagman, 55 F.3d at 1437. Objections 7 and 8 are not well-taken.
Objection 9: In- and Out-of -Court Statements
Myers further argues that he is not attempting to draw a line between in- and
out-of-court statements, but rather there is a distinction between statements made
during an ongoing legal proceeding (whether in- or out-of-court) and those made
when a case is finished. Myers once again ignores the interests at stake. See
Williams-Yulee, 135 S. Ct. at 1667. Objection 9 is not well-taken.
Objection 10: Causal Connection
Finally, Myers argues that there is no causal connection between preventing
false statements by and about judicial candidates and ensuring that judges and
judicial candidates remain free from undue influence and political pressure. Such
a connection has been identified by the State, (see Doc. 51 at 15-17), and was also
identified by the Supreme Court in Williams-Yulee, 135 S. Ct. at 1667. Objection
10 is not well-taken.
Having reviewed those findings not specifically objected to for clear error,
IT IS ORDERED that Judge Lynch's Findings and Recommendation (Doc. 72) is
ADOPTED IN FULL. Myers' motion for partial summary judgment (Doc. 54) is
DENIED and the State's motion for summary judgment (Doc. 49) is GRANTED. 1
Myers' Objection 12, which asks for the opposite conclusion, is therefore
All pending deadlines are VACATED and motions DENIED as MOOT. The
bench trial scheduled for September 25, 2017, is VACATED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
judgment in favor of the State and against Myers and close the case file.
DATED this 15th day of September, 2017.
onald W. Molloy Di rlct Judge
oited Stat s Di trict Court
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