Sanders County Republican Central Committee v. Timothy C. Fox

Timothy C. Fox is substituted for his predecessor, Steven Bullock, as *
Attorney General for the State of Montana. Fed R. App. P. 43(c)(2).
The panel unanimously concludes this case is suitable for decision * *
without oral argument. See Fed. R. App. P. 34(a)(2).
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDERS COUNTY REPUBLICAN
CENTRAL COMMITTEE,
Plaintiff-Appellee,
v.
TIMOTHY C. FOX, in his official*
capacity as Attorney General for the
State of Montana; JAMES MURRY, in
his official capacity as the
Commissioner for Political Practices
for the State of Montana,
Defendants-Appellants.
No. 12-35816
D.C. No.
6:12-cv-00046-
CCL
OPINION
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Submitted June 17, 2013**
Filed June 21, 2013

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SANDERS CNTY. REPUBLICAN CENT. COMM. V. FOX 2
The Honorable Jed S. Rakoff, Senior District Judge for the U.S. * * *
District Court for the Southern District of New York, sitting by
designation.
This summary constitutes no part of the opinion of the court. It has * * * *
been prepared by court staff for the convenience of the reader.
Before: Mary M. Schroeder and Ronald M. Gould, Circuit
Judges, and Jed S. Rakoff, Senior District Judge.***
Opinion by Judge Rakoff
SUMMARY****
Civil Rights
The panel affirmed in part and reversed in part the district
court’s permanent injunction enjoining the State of
Montana’s Attorney General and Commissioner of Political
Practices from enforcing in its entirety a Montana statute
making it a criminal offense for any political party to
“endorse, contribute to, or make an expenditure to support
or oppose a judicial candidate” in a nonpartisan judicial
election, Mont. Code Ann. § 13-35-231.
The panel held that to the extent that appellants
challenged the permanent injunction against enforcement of
section 13-35-231’s ban on endorsements and expenditures,
the panel was bound to follow its prior published decision
finding those provisions unconstitutional. See Sanders Cnty.
Republican Cent. Comm. v. Bullock, 698 F.3d 741 (9th Cir.
2012). Accordingly, the panel affirmed the district court’s

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SANDERS CNTY. REPUBLICAN CENT. COMM. V. FOX 3
entry of a permanent injunction as it pertained to those
portions of the statute.
The panel noted that in its prior decision of September 17,
2012, the court had not reached the issue of the
constitutionality of the statute’s ban on contributions and that
no such challenge had subsequently been raised. The panel
therefore remanded to the district court with instructions to
revise the permanent injunction so that it enjoined only the
statute’s ban on endorsements and expenditures, and not the
statute’s ban on contributions.
COUNSEL
Timothy C. Fox, Montana Attorney General, and Michael G.
Black, Montana Assistant Attorney General, Helena,
Montana, for Defendants-Appellants.
Matthew G. Monforton, Bozeman, Montana, for Plaintiff-
Appellee.
Lawrence A. Anderson, Great Falls, Montana; Matthew
Menendez, Alicia Bannon, and David Earley, Brennan Center
for Justice at NYU School of Law, New York, New York, for
amicus curiae The Brennan Center for Justice at NYU School
of Law.

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SANDERS CNTY. REPUBLICAN CENT. COMM. V. FOX 4
OPINION
RAKOFF, Senior District Judge:
On May 29, 2012, appellee Sanders County Republican
Central Committee (“the Committee”) filed suit against
appellants, the State of Montana’s Attorney General and its
Commissioner of Political Practices, seeking a declaration
that certain portions of a Montana statute making it a criminal
offense for any political party to “endorse, contribute to, or
make an expenditure to support or oppose a judicial
candidate” in a nonpartisan judicial election, Mont. Code
Ann. § 13-35-231, were unconstitutional and requesting an
injunction against its enforcement. On June 26, 2012, the
district court denied the Committee’s motion for a
preliminary injunction. On September 17, 2012, this Court
reversed that decision, with Judge Schroeder dissenting, and
remanded the case for further proceedings consistent with the
Court’s opinion. See Sanders Cnty. Republican Cent. Comm.
v. Bullock, 698 F.3d 741 (9th Cir. 2012). Specifically, this
Court determined that Montana’s ban on endorsements and
expenditures by a political party in a judicial election violated
the Committee’s rights under the First Amendment, id. at
745–48, and that the enforcement of section 13-35-231’s
prohibition of such endorsements and of the expenditures
needed to make those views publicly known should be
preliminarily enjoined. Id. at 748–49.
Upon remand to the district court, appellants moved for
an order vacating the previously-set September 25, 2012, trial
date and sought an opportunity to file motions for summary
judgment. The district court vacated the trial date and, finding
that summary judgment motions would be “superfluous” in
light of this court’s preliminary injunction opinion, entered

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SANDERS CNTY. REPUBLICAN CENT. COMM. V. FOX 5
judgment on September 19, 2012, permanently enjoining
appellants from enforcing section 13-35-231 in its entirety.
Appellants now appeal from that judgment.
To the extent that appellants challenge the permanent
injunction against enforcement of section 13-35-231’s ban on
endorsements and expenditures, this panel is bound to
follow its published decision finding those provisions
unconstitutional. See Gonzalez v. Arizona, 677 F.3d 383, 389
n.4 (9th Cir. 2012) (en banc), cert. granted, 133 S. Ct. 476
(2012) (“[A] published decision of this court constitutes
binding authority which ‘must be followed unless and until
overruled by a body competent to do so’ . . . . ” (quoting Hart
v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001))).
Accordingly, we affirm the district court’s entry of a
permanent injunction as it pertains to those portions of the
statute.
However, the district court, apparently under the mistaken
impression that this court had found section 13-35-231
unconstitutional in all respects, entered a permanent
injunction against the enforcement of section 13-35-231 in its
entirety, including the statute’s ban on contributions by a
political party to a judicial candidate. In its decision of
September 17, 2012, this court had not reached the issue of
the statute’s ban on contributions, noting that the Committee
“does not here challenge Montana’s ban on contributions to
judicial candidates by political parties.” Sanders Cnty.
Republican Cent. Comm., 698 F.3d at 744 n.1. Nor in the
brief proceedings before the district court after the matter was
remanded following our decision did the Committee
challenge the statute’s ban on contributions. And in its
submission on the instant appeal, the Committee once again
disavows any such challenge. See Lair v. Bullock, 697 F.3d

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SANDERS CNTY. REPUBLICAN CENT. COMM. V. FOX 6
It is clear that the statute’s contribution ban is severable from its 1
endorsement and expenditure bans, and the parties nowhere suggest
otherwise. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
130 S. Ct. 3138, 3161 (2010) (“‘Generally speaking, when confronting a
constitutional flaw in a statute, we try to limit the solution to the problem,’
severing any ‘problematic portions while leaving the remainder intact.’”
(quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320,
328–29 (2006))).
1200 (9th Cir. 2012) (finding, on a motion for a stay pending
appeal, that Montana was likely to succeed on an appeal of a
permanent injunction against enforcement of certain
restrictions on campaign contributions).
We therefore remand to the district court with instructions
to revise the permanent injunction so that it enjoins only the
statute’s ban on endorsements and expenditures, and not the
statute’s ban on contributions. The parties shall bear their1
own costs.
AFFIRMED IN PART and REVERSED AND
REMANDED IN PART.

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