Lair v. Bullock

Decision Date16 October 2012
Docket NumberNo. 12–35809.,12–35809.
Citation697 F.3d 1200
PartiesDoug LAIR; Steve Dogiakos; American Tradition Partnership; American Tradition Partnership PAC; Montana Right to Life Association PAC; Sweet Grass Council for Community Integrity; Lake County Republican Central Committee; Beaverhead County Republican Central Committee; Jake Oil, LLC; JL Oil, LLC; Champion Painting; John Milanovich, Plaintiffs–Appellees, v. Steve BULLOCK, in his official capacity as Attorney General of the State of Montana; James Murry, “Jim”, in his official capacity as Commissioner of Political Practices; Leo Gallagher, in his official capacity as Lewis and Clark County Attorney, Defendants–Appellants.
CourtU.S. Court of Appeals — Ninth Circuit


Negative Treatment Reconsidered

MCA 13–37–216

Michael G. Black and Andrew I. Huff, Assistant Attorneys General, Montana Department of Justice, Helena, MT, for defendants-appellants.

James Bopp, Jr., Jeffrey Gallant, and Anita Y. Woudenberg, The Bopp Law Firm, PC, Terre Haute, IN, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Montana, Charles C. Lovell, Senior District Judge, Presiding. D.C. No. 6:12–cv–00012–CCL.

Before: RONALD M. GOULD, RICHARD R. CLIFTON, and JAY S. BYBEE, Circuit Judges.


BYBEE, Circuit Judge:

Since 1994, Montana has regulated the amount that individuals, political committees, and political parties can contribute to candidates for state office. Mont.Code Ann. § 13–37–216, as adjusted by Admin. R. Mont. § 44.10.338.1 In 2003, we upheld this provision against a constitutional challenge based on Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000). Mont. Right to Life Ass'n v. Eddleman, 343 F.3d 1085 (9th Cir.2003), cert. denied,543 U.S. 812, 125 S.Ct. 47, 160 L.Ed.2d 16 (2004). Applying the “analytical framework set forth in Buckley and [ Shrink Missouri ],” we held that “Montana's interest in purging corruption and the appearance of corruption from its electoral system is sufficiently important to withstand constitutional scrutiny” and that § 13–37–216 was “closely tailored to achieving those ends.” Id. at 1098. We concluded that § 13–37–216 was “constitutional and [did] not violate the First Amendment.” Id.

On October 3, 2012, with less than five weeks before the general election and after absentee voting in Montana began, the district court concluded that “Montana's contribution limits in Montana Code Annotated § 13–37–216 are unconstitutional under the First Amendment.” Order, Lair v. Murry, No. CV 12–12–H–CCL, 2012 WL 4815411, at *1 (D.Mont. Oct. 3, 2012) [hereinafter Order]. The district court permanently enjoined Montana from enforcing its campaign contribution limits. Id. at *2. In an opinion and order issued on October 10, 2012, the district court explained that our decision in Eddleman was “not binding on this Court because the U.S. Supreme Court's intervening decision in Randall [ v. Sorrell, 548 U.S. 230, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006),] compels a different outcome.” Opinion and Order, Lair v. Murry, No. CV 12–12–H–CCL, 2012 WL 4815411, at *10 (D.Mont. Oct. 10, 2012).

The State of Montana has sought a stay of the district court's order pending appeal. For the reasons we explain below, we believe that the state is likely to succeed on appeal. We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.2003) (en banc). We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court's decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons. First, there is no opinion of the Court in Randall.Thalheimer v. City of San Diego, 645 F.3d 1109, 1127 n. 5 (9th Cir.2011) ([T]he plurality opinion [in Randall ] [i]s persuasive authority, though not a binding precedent.” (internal quotation marks omitted)). Second, even if we thought that Justice Breyer's plurality opinion represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman.Randall, 548 U.S. at 242, 126 S.Ct. 2479 (opinion of Breyer, J.) ([T]his Court has repeatedly adhered to Buckley's constraints....”). Third, even if we applied Randall to § 13–37–216, we cannot find, on the basis of the district court's findings, reason to disagree with, much less overturn, Eddleman. In light of Montana's interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public's substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state's appeal. See Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).


The plaintiffs-appellees, various individuals, political action committees, and other political organizations, brought suit in September 2011 to challenge several provisionsof Montana's finance and election laws. The defendants-appellants are various officials of the State of Montana. Only one provision, § 13–37–216 of the Montana Code Annotated, which limits contributions that individuals and political committees can make to candidates, is at issue in this case. The district court held a bench trial on September 12–14, 2012. On October 3, 2012, the district court issued a brief order recounting the procedural history of the suit and the fact of the bench trial. The court stated that [h]aving reviewed and considered the entire record and the parties' arguments and evidence, the Court concludes that Montana's contribution limits in Montana Code Annotated § 13–37–216 are unconstitutional under the First Amendment.” Order at 4. The court permanently enjoined the enforcement of § 13–37–216. The district court did not issue an opinion, but stated that “complete and extensive findings of fact and conclusions of law that support this order” would be filed separately. Order at 5. The order was filed before it issued the findings of fact and conclusions of law “so that th[e] order c[ould] be issued before voting begins in the upcoming election.” Id.

The following day, October 4, 2012, the state defendants-appellants filed for a stay pending appeal. We ordered an expedited response from the plaintiffs-appellees, which they filed on October 9, 2012. That same day, noting that the district court had not issued findings and conclusions, we found that we were “severely constrained in [our] consideration of the underlying issues raised in the emergency motion.” Order, Lair v. Murry, No. 12–35809, 2012 WL 4883247, at *2 (9th Cir. Oct. 9, 2012). We nevertheless ordered that the injunction be “temporarily stayed pending further order of the court.” Id. at *2.

The district court issued an Opinion and Order containing its findings of fact and conclusions of law on October 10, 2012. The state filed a reply in support of its motion for a stay on October 11, 2012.


“A stay is not a matter of right.... It is instead ‘an exercise of judicial discretion’ ... [that] ‘is dependent upon the circumstances of the particular case.’ Nken, 556 U.S. at 433, 129 S.Ct. 1749 (internal citations omitted) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73, 47 S.Ct. 222, 71 L.Ed. 463 (1926)). Judicial discretion in exercising a stay is to be guided by the following legal principles, as distilled into a four factor analysis in Nken: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 434, 129 S.Ct. 1749 (citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)).2 “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [this Court's] discretion.” Id. at 433–34, 129 S.Ct. 1749.


As discussed in detail below, we find that the State of Montana has satisfied this burden. As the Nken factors illustrate, especially in light of the delicate campaign contribution equilibrium leading up to the imminent election, we should and will exercise our discretion to stay the district court's order pending resolution of the appeal by a merits panel of this court.

A. Strong Showing that Success is Likely on the Merits

The first two Nken factors “are the most critical.” Id. at 434, 129 S.Ct. 1749. Regarding the first factor, Nken held that it is not enough that the likelihood of success on the merits is “better than negligible” or that there is a “mere possibility of relief.” Id. (internal quotation marks omitted). Since Nken did not specify “the exact degree of likely success that stay petitioners must show, ... courts routinely use different formulations to describe this [factor].” Leiva–Perez v. Holder, 640 F.3d 962, 966 (9th Cir.2011) (per curiam). We have concluded that many of these formulations, including “reasonable probability,” “fair prospect,” “substantial case on the merits,” and “serious legal questions ... raised,” are largely interchangeable. Id. at 967–68. All of these formulations indicate that, “at a minimum,” a petitioner must show that there is a “substantial case for relief on the merits.” Id. at 968. The standard does not require the petitioners to show that “it is more likely than not that ...

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