A U.S. district judge has temporarily barred the Oklahoma Council on Judicial Complaints from investigating or recommending the sanction of any state judicial candidate who publicly identifies his or her party affiliation during a judicial campaign while a lawsuit challenging that regulation proceeds through the court process.

The federal lawsuit was filed by the Oklahoma Council of Public Affairs on behalf of Scott Loftis, a candidate for an Oklahoma district judge position for the judicial district encompassing Kay and Noble counties.

Oklahoma law prohibits a judicial candidate from acknowledging his or her party affiliation during a campaign. Similarly, the state Rules for Judicial Conduct impose a “content-based restriction on political speech” that “violates the First Amendment” right of candidates, Loftis’ complaint noted.

Furthermore, the Oklahoma Judicial Ethics Advisory Panel has issued opinions advising judges and judicial candidates that it is illegal for other individuals to refer to the candidate as a “Conservative Hero” in print or for candidates to describe themselves as a “Conservative,” including in an instance where a judicial candidate was a high-profile and well-known former legislator who served as a Republican in the Oklahoma House of Representatives for 24 years.

The complaint noted, “Loftis wants to position himself as the ‘conservative, law-and-order’ candidate in the race for District Judge.”

However, the Oklahoma Council on Judicial Complaints previously indicated use of that language could lead to a successful candidate being removed from the bench after winning election.

“Loftis is concerned that if referring to himself as a ‘conservative’ violates the law, other statements could potentially also violate the law,” Loftis’ complaint noted. “For instance, he fears if he were to say he is a Southern Baptist, that could potentially also violate the law.

In Loftis v. Rose, U.S. District Judge Timothy DeGuisti concluded that Oklahoma’s Party Affiliation Rule “suppresses too much speech because it prohibits judicial candidates from announcing their position on many issues by not allowing them to state the political party with which they affiliate.”

DeGuisti also found that the rule “is not sufficiently narrowly tailored because it is also underinclusive” since it “does not prohibit judicial candidates from revealing their membership in any other type of organization or interest group that may also take positions on issues that are frequently associated with politics or political parties.”

As a result, DeGuisti concluded that Loftis had “demonstrated a likelihood of success on the merits of his claim regarding the Party Affiliation Rule.”

DeGuisti denied the Oklahoma Council on Judicial Complaints’ motion to dismiss and granted Loftis’ request for a preliminary injunction barring the council from investigating complaints regarding any alleged violation of the Party Affiliation Rule or recommending any discipline for any judicial candidate who identifies his or her political affiliation.

Regarding the “pledges, promises, or commitments clause,” DeGuisti denied Loftis’ request for a preliminary injunction, but interpreted those regulations to have such a narrow meaning that they do not functionally prohibit judicial candidates from describing themselves as “conservative,” “pro-life,” or many other phrases commonly used in political campaigns.

DeGuisti wrote that the Court found “that the Pledges, Promises, or Commitments Clause does not prohibit Plaintiff from identifying his political party affiliation or referring to himself as a ‘law and order’ candidate. Moreover, it does not prohibit him from informing potential voters that he is ‘pro-life’ or an ‘originalist,’ but rather prohibits him from committing to always ruling for a particular party, ruling a particular way on an issue, or ruling a particular way on a certain case.”

DeGuisti noted that the Oklahoma Council on Judicial Complaints indicated the organization would not be bound by an advisory opinion issued by the Oklahoma Judicial Ethics Advisory Panel that interpreted the regulation to prohibit judicial candidates from referring to themselves as “conservative” or using similar descriptions.

The Oklahoma Council on Judicial Complaints argued Loftis lacked standing to file the lawsuit because he had not suffered injury, but DeGuisti concluded that Loftis “has sufficiently alleged that he suffered an injury in fact that is concrete, particularized, and imminent.”

The Oklahoma Council on Judicial Complaints also argued that it could not be sued because it does not have enforcement authority.

But DeGuisti noted the council does investigate whether various judicial candidate regulations were violated “and are the gatekeepers for whether discipline is ordered,” noting that the council “conceded that they act as the gatekeepers” during a hearing on the case.

“Although Defendants may not be the final link in the chain in determining whether a violator should be disciplined, they are clearly a significant actor in the process,” DeGuisti wrote.

The council also argued it was protected from the lawsuit under the Eleventh Amendment, which restricts the ability of individuals to sue states in federal court.

Because DeGuisti held that the Oklahoma Council on Judicial Complaints acts as a gatekeeper in the enforcement of the judicial candidate code, he concluded the council did not have Eleventh Amendment immunity.

Ryan Haynie, director of the Oklahoma Council of Public Affairs’ Center for Law and Liberty, filed the lawsuit in the U.S. District Court for the Western District of Oklahoma on behalf of Loftis.