Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1991)

No. 90-35814.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

Jerry O'Neil ("O'Neil"), David O'Neil, Arwood D. Stickney, Willard Carter, and Robert S. Turner appeal pro se the district court's dismissal of their action against Montana State Supreme Court, Montana Attorney General, and Montana Secretary of State (collectively the "State") pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim. O'Neil brought this action under 42 U.S.C. § 1983, claiming that the State deprived him of his constitutional rights when it refused to include O'Neil's name on the ballot for the primary election for Supreme Court Justice of Montana because O'Neil was not a member of the Montana bar. The other plaintiffs claim that they were deprived of their constitutional right to vote for the candidate of their choice. O'Neil sought declaratory and injunctive relief and damages. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Lea v. Republic Airlines, 903 F.2d 624, 634 (9th Cir. 1990), and affirm.

* Requirements for Admission to the Bar

Montana's constitution provides that candidates for Supreme Court Justice must have been admitted to the practice of law in Montana for at least five years. Mont. Const. art. VII, Sec. 9. The Montana Supreme Court has promulgated rules which require graduation from an accredited law school as a prerequisite to bar membership.

O'Neil contends that Montana's requirement of graduation from an accredited law school for admission to the bar violates equal protection. We review state bar admission restrictions under rational basis analysis. Lupert v. California State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985), appeal dismissed, 474 U.S. 916 (1985). A restriction will be upheld if it bears some rational relationship to a conceivable legitimate state purpose. Id. We have previously upheld identical requirements from other states. Santos v. Alaska Bar Ass'n, 618 F.2d 575, 577 (9th Cir. 1980); Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966), cert. denied, 385 U.S. 960 (1966); see also Lupert, 761 F.2d at 1328 (upholding California requirement that students attending unaccredited law schools must take an exam after one year of study in order to demonstrate proficiency). Thus, the district court correctly found that Montana's regulation requiring graduation from an accredited law school as a prerequisite for admission to the Montana bar was rationally related to a legitimate state purpose. Accordingly, the district court correctly found that O'Neil failed to state a claim for violation of his constitutional rights under section 1983 when he was denied admission to the Montana bar because he was not a graduate of an accredited law school.

II

Requirements for Judicial Candidates

The Montana constitution requires that in order to be included on the ballot for Supreme Court Justice, a candidate must have been a member of the Montana bar for 5 years. O'Neil contends that this requirement violates his constitutional rights because he is competent to practice law and be a judge, as he has demonstrated by representing himself pro se in the past. The other plaintiffs contend that this violates their right to vote for the candidate of their choice.

No "litmus-paper test" exists for evaluating constitutional challenges to state election laws restricting ballot access. Erum v. Cayetano, 881 F.2d 689 (9th Cir. 1989) (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). In assessing challenges to state election laws that restrict access to the ballot, we consider (1) the character and magnitude of the constitutional injury asserted by plaintiffs and (2) the precise interests put forward by the state as justifications for the restrictions. Erum, 881 F.2d at 692. " [A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Anderson v. Celebrezze, 460 U.S. 780, 788 (1982) (quotation omitted). The Supreme Court has not recognized the right to run for elective office as a fundamental right, and only applies heightened scrutiny if the restriction involves classifications based on wealth or access to the ballot by new or small political parties. Clements v. Fashing, 457 U.S. 957, 964 (1982).

Here, the State argues that it has a compelling need to assure that candidates for judicial office are knowledgeable in Montana law. We agree that this is an important state interest and that the requirement of membership in the Montana bar with five years of practice clearly advances this purpose. Thus, the district court correctly found that Montana's regulation does not violate O'Neil's constitutional right to run for elective office. See Erum, 881 F.2d at 692; accord Bullock v. State of Minnesota, 611 F.2d 258, 260 (8th Cir. 1979). Further, although this restriction admittedly has an impact on the other plaintiffs' right to vote for the candidate of their choice, this limitation does not reach the level of a constitutional violation. See Munro, 479 U.S. at 199. Accordingly, the district court correctly dismissed O'Neil's action for failure to state a claim.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3