Loftis v. Rose et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SCOTT LOFTIS,
Plaintiff,
v.
RICHARD ROSE, in his official capacity as
Chairman of the Oklahoma Council on Judicial
Complaints, et al.,
Defendants.
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Case No. CIV-26-1172-D
ORDER
Before the Court is Defendants Richard Rose, Angela Ailles Bahm, and Zack Taylor,
in their official capacities as Chairman, Vice Chairwoman, and member of the Oklahoma
Council on Judicial Complaints’, combined Motion to Dismiss. [Doc. No. 13]. Plaintiff
Scott Loftis filed a Response [Doc. No. 15], to which Defendants filed a Reply [Doc. No.
16]. Also, before the Court is Plaintiff’s Motion for Preliminary Injunction and Brief in
Support. [Doc. Nos. 3, 4]. Defendants filed their combined Response. [Doc. No. 10].
Plaintiff did not file a reply, and the time to do so has passed.
On August 5, 2026, the Parties and their counsel of record appeared before the Court
for an evidentiary hearing on Plaintiff’s Motion for Preliminary Injunction. [Doc. No. 14].
Accordingly, the Motions [Doc. Nos. 3, 4, 15] are fully briefed and at issue.
BACKGROUND
Plaintiff is an attorney who is a candidate for an Oklahoma district judge position
for the judicial district encompassing Kay and Noble counties. [Doc. No. 1, at p. 3].
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Plaintiff alleges that during his campaign he would like to inform voters that he is a
“conservative,” and a “law and order” and “pro-life” judicial candidate. Id. at p. 9-10, 13.
However, Plaintiff alleges that he is unable to make such statements because various
Oklahoma statutes and the Oklahoma Rules on Judicial Conduct prohibit him from doing
so. [Doc. No. 1]. Specifically, he alleges that Okla. Stat. tit. 20, § 1404.1(3) and Okla. Stat.
tit. 5, App’x 4, Rule 4.1(A)(6) (collectively the “Party Affiliation Rule”) unconstitutionally
prohibit him from informing voters that he is a conservative. Id. He argues that such
restriction 	is 	an 	impermissible 	content-based 	restriction 	in 	violation 	of 	his 	First
Amendment right to freedom of speech. Id.
The Party Affiliation Rule provides:
A person who is not a judicial officer but is a candidate for a
judicial office shall comply with the standards enumerated
below, and any violation of these standards shall constitute
grounds for the removal by the Court on the Judiciary of a
person who is not a judicial officer elected to a judicial office
with or without disqualification to hold a judicial office in the
future.
. . .
3. While a candidate for a judicial office, making publicly
known in his campaign material or speeches, or knowingly
permitting others to make publicly known, either directly or by
implication, his political party affiliation.
Okla. Stat. tit. 20, § 1404.1(3). Additionally, Rule 4.1(A)(6) provides:
A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a
judge or a judicial candidate shall not:
. . .
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(6) publicly identify himself or herself as a candidate of a
political organization.
Okla. Stat. tit. 5, App’x 4, Rule 4.1(A)(6).
Similarly, Plaintiff also alleges that Okla. Stat. tit. 5, App’x 4, Rule 4.1(A)(12)-(13)
(“Pledges, Promises, or Commitments Clause”) prohibits him from publicizing that he is a
“conservative,” and “pro-life” judicial candidate. [Doc. No. 1]. He argues that the Pledges,
Promises, or Commitments Clause is unlawfully overbroad, and an unlawful restriction as
applied to his speech in violation of his constitutional right to freedom of speech. Id. The
Pledges, Promises, or Commitments Clause states:
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4,
a judge or a judicial candidate shall not:
. . .
(12) make any statement that would reasonably be expected to
affect the outcome or impair the fairness of a matter pending
or impending in any court; or
(13) in connection with cases, controversies, or issues that are
likely to come before the court, make pledges, promises, or
commitments 	that 	are 	inconsistent 	with 	the 	impartial
performance of the adjudicative duties of judicial office.
Okla. Stat. tit. 5, App’x 4, Rule 4.1(A)(12)-(13).
Plaintiff also challenges the constitutionality of two of the Judicial Ethics Advisory
Panel’s Advisory Opinions, Advisory Opinion No. 2018-7 and Advisory Opinion No.
2026-2, on the same basis that he challenges the Party Affiliation Rule and the Pledges,
Promises, or Commitments Clause. [Doc. No. 1]. In Advisory Opinion No. 2018-7, the
Oklahoma Judicial Ethics Advisory Panel determined that a judicial candidate would
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violate the Party Affiliation Rule if he published a book and permitted an article to be
included in the book that referred to him as a “conservative hero.” Jud. Ethics Opinion
2018-7, 434 P.3d 17 (Okla. Jud. Eth. 2018). Additionally, in Advisory Opinion No. 2026-
2, the Oklahoma Judicial Ethics Advisory Panel was tasked with determining, in relevant
part, whether a judicial candidate may use the word “conservative” in his campaign
materials or in public appearances or speeches. Jud. Ethics Opinion 2026-2, No. 2026-2,
2026 WL 1365977, at *2 (Okla. Jud. Eth. May 12, 2026). The panel determined that both
the Pledges, Promises, or Commitments Clause and the Party Affiliation Rule prohibited a
judicial candidate from referring to himself during his campaign as a “conservative.” Id.
Defendants are officers/members of the Oklahoma Council on Judicial Complaints.
The Council is a state agency in the Executive Branch whose mission is to receive and
investigate complaints alleging misconduct by Oklahoma judges and judicial candidates,
and to recommend discipline, if warranted. Okla. Stat. tit. 5, App’x 4A, Rule 3; Okla. Stat.
tit. 20, § 1651. The Council is the sole state agency charged with investigating allegations
of judicial misconduct. However, the Council does not have the authority to adjudicate
violations or impose discipline. See Okla. Stat. tit. 5, App’x 4A, Rule 3. If the Council
determines that a violation has occurred and discipline is warranted, it may issue a letter of
caution, and may refer violations to either the Court on the Judiciary or the Oklahoma
Supreme Court. Id.; see also Okla. Stat. tit. 20, § 1659.
Defendants are not bound by the Oklahoma Judicial Ethics Advisory Panel’s
opinions. See Jud. Ethics Opinion 2018-7, 434 P.3d 17 (Okla. Jud. Eth. 2018); Jud. Ethics
Opinion 2026-2, No. 2026-2, 2026 WL 1365977 (Okla. Jud. Eth. May 12, 2026) (“The
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Opinions of the Oklahoma Judicial Ethics Advisory Panel are advisory only. … The
advisory opinion shall not be binding on the Council on Judicial Complaints or Court on
the Judiciary in the exercise of their judicial discipline responsibilities.”)
Defendants filed their motion to dismiss arguing Plaintiff lacks standing to bring his
claims as he has failed to sufficiently allege that Defendants caused his purported injury,
and because they have Eleventh Amendment immunity. [Doc. No. 13]. Specifically, they
argue that Plaintiff lacks standing and they enjoy Eleventh Amendment immunity because
they do not have the authority to enforce the Party Affiliation Rule or Pledges, Promises,
or Commitments Clause. Id. In response, Plaintiff argues that he has standing because
Defendants have enforcement authority, as they make the determinations on whether the
provisions at issue were violated and recommend whether discipline is warranted. [Doc.
No. 15]. Moreover, Plaintiff argues that Defendants do not have Eleventh Amendment
immunity because they enforce the rules at issue. Id. Indeed, he argues that they act as
gatekeepers in determining whether disciplinary action should be taken for violations of
the rules. Id.
In Plaintiff’s motion for preliminary injunction, he asserts that Defendants should
be preliminarily enjoined from enforcing the Party Affiliation Rule, the Pledges, Promises,
or Commitments Clause, and the two Advisory Opinions during the pendency of this
lawsuit. [Doc. Nos. 3, 4]. Defendants argue that if dismissal is not warranted, then Plaintiff
likely has demonstrated, based on Republican Party of Minn. v. White, 536 U.S. 765 (2002)
and its application by certain federal courts of appeals, that he will likely succeed on the
merits of his claim that the Party Affiliation Rule is an unconstitutional restriction of his
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freedom of speech. [Doc. No. 10]. However, Defendants argue that Plaintiff has not and
cannot 	demonstrate 	that 	the 	Pledges, 	Promises, 	or 	Commitments 	Clause 	is
unconstitutional. Id. at p. 13-20. Additionally, Defendants argue that the issues regarding
the Advisory Opinions are moot, as the advisory opinions are not binding, and because they
disagree with Advisory Opinion 2026-2’s conclusions and will not enforce it. Id. at p. 20-
21.
STANDARD OF DECISION—MOTION TO DISMISS
I. Standing.
“To establish standing, ‘a plaintiff must show (i) that he suffered an injury in fact
that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused
by the defendant; and (iii) that the injury would likely be redressed by judicial relief.’”
Pino v. Oliver, 186 F.4th 750, 756-57 (10th Cir. 2026) (quoting TransUnion LLC v.
Ramirez, 594 U.S. 413, 423 (2021)). “A plaintiff has standing to raise a pre-enforcement
challenge where he alleges ‘an intention to engage in a course of conduct’ (1) that is
‘arguably affected with a constitutional interest,’ (2) is ‘proscribed by a statute,’ and (3)
‘there exists a credible threat of prosecution thereunder.’” Id. at 757-58 (quoting Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)).
II. Immunity pursuant to the Eleventh Amendment.
“‘The Eleventh Amendment constitutionalizes the doctrine of state sovereign
immunity’” and bars citizens from suing both states and state officials in their official
capacity. Free Speech Coal., Inc. v. Anderson, 119 F.4th 732, 735-36 (10th Cir. 2024)
(quoting Hendrickson v. AFSCME Council 18, 992 F.3d 950, 965 (10th Cir. 2021)). “But
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Ex parte Young created an exception under which individuals can sue state officers in their
official capacities if the lawsuit seeks prospective relief for an ongoing violation of federal
law.” Id. at 736. Ex parte Young applies only if the state official “‘ha[s] some connection
with the enforcement of the challenged statute.’” Id. (cleaned up) (quoting Hendrickson,
992 F.3d at 965). This connection need not be particularly special, but Ex parte Young
“‘requires something more than a mere general duty to enforce the law.’” Id. at 739
(quoting Hendrickson, 992 F.3d at 965). Rather, the official “must ‘have a particular duty
to enforce the statute in question and a demonstrated willingness to exercise that duty.’”
Id. at 736 (emphasis added) (cleaned up). “An official enforces a law when they ‘clearly ...
assisted or currently assist in giving effect to the [contested] law.’” Id. (quoting Prairie
Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007) (footnote
omitted)).
ANALYSIS
I. Standing.
The Court agrees Plaintiff has sufficiently alleged that he suffered an injury in fact
that is concrete, particularized, and imminent. Indeed, Plaintiff has alleged that he has been
prevented from publicizing statements such as his political affiliation during his judicial
campaign out of fear that Defendants would find his statements violate the Party Affiliation
Rule and Pledges, Promises, or Commitments Clause and recommend he be disciplined.
Moreover, Defendants do not dispute that Plaintiff has adequately alleged the third element
of standing—that Plaintiff’s injury would likely be redressed by judicial relief. The Court
finds Plaintiff has sufficiently asserted that a preliminary injunction preventing Defendants
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from investigating violations of the provisions at issue, and recommending discipline for
violations of those provisions, would permit him to inform voters of his political affiliation,
and thus, redress the issue. Therefore, for purpose of determining whether Plaintiff has
standing to assert his claims, the only issue that remains is whether Plaintiff’s injury was
likely caused by Defendants.
“The principle of causation for constitutional standing requires a plaintiff’s injury
to be ‘fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.’” Bronson v. Swensen, 500
F.3d 1099, 1109 (10th Cir. 2007) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156
(10th Cir. 2005)). A plaintiff does not have to show that “the defendant was the proximate
cause of its injury. Nor does it require a showing that a defendant’s actions are the very last
step in the chain of causation.” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe,
New Mexico, 993 F.3d 802, 814 (10th Cir. 2021) (citing Bennet v Spear, 520 U.S. 154, 169
(1997)). “Rather, at the motion to dismiss stage, a plaintiff can satisfy the ‘fairly traceable’
requirement by advancing allegations which, if proven, allow for the conclusion that the
challenged conduct is a ‘but for’ cause of the injury.” Id. (citing Petrella v. Brownback, 697
F.3d 1285, 1293 (10th Cir. 2012)).
Moreover, 	“when 	a 	plaintiff 	brings 	a 	pre-enforcement 	challenge 	to 	the
constitutionality of a particular statutory provision, the causation element of standing
requires 	the 	named 	defendants 	to 	possess 	authority 	to 	enforce 	the 	complained-of
provision.” Bronson, 500 F.3d at 1110 (citing Socialist Workers Party v. Leahy, 145 F.3d
1240, 1248 (11th Cir. 1998) (When “plaintiff seeks a declaration of the unconstitutionality
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of a state statute and an injunction against its enforcement, a state officer, in order to be an
appropriate defendant, must, at a minimum, have some connection with enforcement of the
provision at issue.”).
Here, Defendants argue that because they do not have the authority to discipline
Plaintiff 	for 	violations 	of 	the 	Party Affiliation 	Rule 	or 	the 	Pledges, 	Promises, 	or
Commitments Clause, they do not enforce them, and thus, Plaintiff cannot show he has
standing. Plaintiff argues, and the Court agrees, that Defendants investigate whether the
provisions were violated and are the gatekeepers for whether discipline is ordered. Indeed,
at the hearing, Defendants conceded that they act as the gatekeepers. 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. Accordingly, Defendants
have a sufficient connection with the enforcement of the provisions, and thus, Plaintiff has
demonstrated he has standing to bring his claims.
II. Immunity pursuant to the Eleventh Amendment.
It is undisputed that Plaintiff seeks prospective relief from state officers in their
official capacities for an alleged ongoing violation of federal law. Thus, the issue of
immunity turns on whether Defendants have any enforcement connection to the challenged
statutes.
Like standing, for the exception to Eleventh Amendment immunity recognized in
Ex 	parte 	Young 	to 	apply, 	the 	defendants 	“‘must 	have 	some 	connection 	with 	the
enforcement’ of the challenged statute.” Cressman v. Thompson, 719 F.3d 1139, 1146 n. 8
(10th Cir. 2013) (quoting Ex parte Young, 209 U.S. 123, 157 (1908)). “An official enforces
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a law when they ‘clearly ... assisted or currently assist in giving effect to the [contested]
law.’” Free Speech Coal., Inc., 119 F.4th at 736 (quoting Prairie Band Potawatomi Nation,
476 F.3d at 828 (footnote omitted)).
As noted earlier, Defendants assist in giving effect to the Party Affiliation Rule and
Pledges, Promises, or Commitments Clause because they determine whether violations of
those provisions are investigated, and are the gatekeepers for deciding whether discipline
for such violations is recommended. Therefore, Defendants are not entitled to Eleventh
Amendment immunity. Accordingly, Defendants’ motion to dismiss is denied.
STANDARD OF DECISION—MOTION FOR PRELIMINARY INJUNCTION
“To 	obtain 	a 	preliminary 	injunction 	the 	right 	to 	relief 	must 	be 	clear 	and
unequivocal.’” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1181 (10th Cir. 2013),
aff’d, 573 U.S. 682 (2014) (quotation and citation omitted). To prevail on a motion for a
preliminary injunction the movant must demonstrate: “(1) a likelihood of success on the
merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the
movant outweighs any harm to the non-moving party; and (4) an injunction is in the public
interest.” Id. at 1128. In First Amendment cases, the first factor, likelihood of success on
the merits, “will often be the determinative factor.” Id. at 1145. This is because “the loss of
First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003)
(quotation and citation omitted). Further, when a law is unconstitutional, the interest of the
government does not outweigh a plaintiff’s interest in his constitutional rights. Awad v.
Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Lastly, “it is always in the public interest to
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prevent the violation of a party’s constitutional rights.” Id. at 1132 (quotation and citation
omitted).
ANALYSIS
I. Likelihood of Success on the Merits.
A. Party Affiliation Rule.
The Party Affiliation Rule prohibits a judicial candidate from publicizing his
political affiliation while he is a candidate for a judicial office. See Okla. Stat. tit. 20. §
1404.1(3) and Okla. Stat. tit. 5, App’x 4, Rule 4.1(A)(6). Specifically, Okla. Stat. tit. 20, §
1404.1(3) states:
A person who is not a judicial officer but is a candidate for a
judicial office shall comply with the standards enumerated
below, and any violation of these standards shall constitute
grounds for the removal by the Court on the Judiciary of a
person who is not a judicial officer elected to a judicial office
with or without disqualification to hold a judicial office in the
future.
. . .
3. While a candidate for a judicial office, making publicly
known in his campaign material or speeches, or knowingly
permitting others to make publicly known, either directly or by
implication, his political party affiliation.
Id. Additionally, Rule 4.1(A)(6) provides:
A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a
judge or a judicial candidate shall not:
…
(6) publicly identify himself or herself as a candidate of a
political organization.
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Okla. Stat. tit. 5, App’x 4, Rule 4.1(A)(6). “Political organization” is defined as “a political
party or other group sponsored by or affiliated with a political party or candidate, the
principal purpose of which is to further the election or appointment of candidates for
political office.” Okla. Stat. tit. 5, App’x 4, Terminology.
Plaintiff argues that the Party Affiliation Rule is unconstitutional because it is a
content-based restriction on his freedom of speech. Specifically, he argues that it not only
prohibits him from publicizing his political affiliation, but also from discussing issues that
might imply his political affiliation. [Doc. No. 4, at p. 7]. He asserts that it prohibits him
from campaigning as the “conservative, law-and-order” candidate. Id. at p. 4. He contends
that this prohibition is directly in violation of his First Amendment right to freedom of
speech and contrary to the Supreme Court’s holding in White, 536 U.S. 765.
Defendants argue that the Party Affiliation Rule is constitutional. However, they
concede that if the Court applies the findings and holding in White similarly to other courts,
then Plaintiff has likely met his burden of demonstrating a likelihood of success on the
merits of his claim. See White, 536 U.S. 765; see also Siefert v. Alexander, 608 F.3d 974
(7th Cir. 2010); Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010).
At issue in White was the constitutionality of Minnesota’s judicial canon—the
Announce Clause, which provided that “‘a candidate for a judicial office, including an
incumbent judge,’” shall not “‘announce his or her views on disputed legal or political
issues.’” White, 536 U.S. at 768 (quoting Minn. Code of Judicial Conduct, Canon
5(A)(3)(d)(i) (2000)). In striking down Minnesota’s announce clause, the Court stated the
following about the standard of review:
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As the Court of Appeals recognized, the announce clause both
prohibits speech on the basis of its content and burdens a
category of speech that is at the core of our First Amendment
freedoms—speech about the qualifications of candidates for
public office. The Court of Appeals concluded that the proper
test to be applied to determine the constitutionality of such a
restriction is what our cases have called strict scrutiny.
536 U.S. at 774 (quotation and citation omitted).
In applying strict scrutiny, the Court found that Minnesota had a compelling state
interest in preserving judicial “impartiality” to the extent “impartiality” meant a “lack of
bias for or against either party to the proceeding.” Id. at 775-77. However, the Court found
that the Announce Clause was not sufficiently narrowly tailored because it did “not restrict
speech for or against particular parties, but rather speech for or against particular issues.”
Id. at 776-77. The Court acknowledged that “when a case arises that turns on a legal issue
on which the judge (as a candidate) had taken a particular stand, the party taking the
opposite stand is likely to lose,” but that is not due to “any bias against that party” because
“[a]ny party taking that position is just as likely to lose.” Id. at 776–77. Thus, the Court
found that the Announce Clause was an unconstitutional restriction on the plaintiffs’ First
Amendment right to freedom of speech.
“‘The 	First 	Amendment, 	applicable 	to 	the 	States 	through 	the 	Fourteenth
Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’” Terry v.
Drummond, 183 F.4th 1281, 1293 (10th Cir. 2026) (quoting Reed v. Town of Gilbert, 576
U.S. 155, 163 (2015)). “It has long been recognized that the First Amendment needs
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breathing space and that statutes attempting to restrict or burden the exercise of First
Amendment rights must be narrowly drawn[.]” Id. (quotation and citation omitted).
A content-based regulation “target[s] speech based on its communicative content,”
restricting discussion of a subject matter or topic. Reed, 576 U.S. at 163. “As a general
matter,” a content-based regulation is “presumptively unconstitutional and may be justified
only if the government proves that [it is] narrowly tailored to serve compelling state
interests.” Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018)
(quotation and citation omitted). To show that a restriction on speech is narrowly tailored,
the state must show that it “does not unnecessarily circumscrib[e] protected expression.”
White, 536 U.S. at 775 (quotation and citation omitted).
Here, the Party Affiliation Rule is a content-based restriction as it prohibits a judicial
candidate from making statements regarding his political affiliation, and thus, restricts
speech based on its content. Defendants do not assert that the Party Affiliation Rule serves
any compelling state interest. However, comment one to the Party Affiliation Rule
provides, in relevant part, that “[t]he State of Oklahoma has a compelling interest in
maintaining the independence, integrity and impartiality of the judiciary, thus enhancing
public confidence in the judicial system.” Okla. Stat. tit. 5, App’x 4, Rule 4.1 n. 1. Stated
otherwise, the Party Affiliation Rule purportedly serves the compelling state interest of the
judiciary having a “lack of bias for or against either party to the proceeding.” White, 536
U.S. at 775.
However, like the canon at issue in White, the Court finds that the Party Affiliation
Rule is not sufficiently narrowly tailored to serve that compelling interest. Indeed, the Party
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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. See Carey, 614 F.3d at 201-02 (finding that Kentucky’s version
of the party affiliation clause was an unconstitutional restriction on the plaintiff’s freedom
of speech because it prohibits candidates from informing voters of their position on many
issues by not allowing them to state the party platform with which they affiliate, which is
a “shorthand way of announcing one’s views on many topics.”). Moreover, the Party
Affiliation Rule is not sufficiently narrowly tailored because it is also underinclusive. The
rule 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. Id. Accordingly, the Court finds that
Plaintiff has demonstrated a likelihood of success on the merits of his claim regarding the
Party Affiliation Rule.
B. Pledges, Promises, or Commitments Clause.
The Pledges, Promises, or Commitments clause states:
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4,
a judge or a judicial candidate shall not:
. . .
(12) make any statement that would reasonably be expected to
affect the outcome or impair the fairness of a matter pending
or impending in any court; or
(13) in connection with cases, controversies, or issues that are
likely to come before the court, make pledges, promises, or
commitments 	that 	are 	inconsistent 	with 	the 	impartial
performance of the adjudicative duties of judicial office.
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Okla. Stat. tit. 5, App’x 4, Rule 4.1(A)(12)-(13). “Impartial” is defined as “absence of bias
or prejudice in favor, or against, particular parties or classes of parties, as well as
maintenance of an open mind in considering issues that may come before a judge.” Okla.
Stat. tit. 5, App’x 4, Terminology.
Plaintiff 	argues 	that 	the 	Pledges, 	Promises, 	or 	Commitments 	Clause 	is
unconstitutional because it is overbroad on its face and as applied to him. [Doc. No. 4, at
p. 11]. Specifically, he alleges that the Pledges, Promises, or Commitments Clause is
unconstitutional because it prohibits him from making the same comments as the Party
Affiliation Rule, and would prohibit him from describing himself as “pro-life” or an
“originalist.” [Doc. No. 4, at p. 11-12]. However, Plaintiff concedes there is a way that the
Pledges, Promises, or Commitments Clause could be interpreted to be constitutional, as he
acknowledges, for instance, he could not promise to always find in favor of the prosecution.
Id. at p. 11.
Defendants argue that a preliminary injunction is not warranted because Plaintiff
has not demonstrated that he is likely to succeed on the merits as he has not, and cannot,
show that the Pledges, Promises, or Commitments Clause is unconstitutional. [Doc. No.
10, at p. 13-20]. Defendants argue Plaintiff has not demonstrated that it is unconstitutional
on its face, because he has not shown any particular injury. Id. at p. 17-19. Specifically,
they argue that it does not prohibit Plaintiff from discussing his personal views on legal,
political, or other issues, such as referring to himself as a conservative. Rather, it prohibits
judicial candidates “from committing or appearing to commit themselves to ruling a
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particular way if a particular party, issue, or case comes before them.” Id. at p. 14.
Moreover, Defendants argue that it is not unconstitutional as applied to Plaintiff because
all of the statements Plaintiff argues the clause prohibits him from making are permitted,
so long as he “adheres to the rule’s requirements and makes it clear that he . . . has not pre-
determined any matter or already decided to reach any particular result.” Id. at p. 16.
1. 	Overbreadth.
“An overbreadth challenge is a facial challenge to a speech-restricting statute on
First Amendment grounds, and, if successful, it results in the invalidation of the entire
statute.” Voter Reference Found., LLC v. Torrez, 727 F. Supp. 3d 1014, 1196-97 (D.N.M.
2024). “To succeed, the challenged statute must regulate substantially more expression than
the First Amendment allows governments to regulate.” Id. (citing Schad v. Borough of Mt.
Ephraim, 452 U.S. 61 (1981)). “Invalidation for overbreadth is strong medicine that is not
to be casually employed.” Terry, 183 F.4th at 1293 (citing United States v. Williams, 553
U.S. 285, 293 (2008) (internal quotation marks omitted)).
The Tenth Circuit recently explained that the test for determining overbreadth
requires two steps. Terry, 183 F.4th at 1293. The Tenth Circuit provided that:
“[t]he first step ‘is to construe the challenged statute’ to
determine whether it covers protected speech.” United States
v. Streett, 83 F.4th 842, 852 (10th Cir. 2023) (quoting Williams,
553 U.S. at 293). This first step proceeds from the common-
sense premise that a court must “determine what [the law]
covers” before it “can do anything else with these facial
challenges[.]” Moody v. NetChoice, LLC, 603 U.S. 707, 725
(2024) (first alteration in original) (quoting Hansen, 599 U.S.
at 770).
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The second step is “to determine whether the unconstitutional
applications of the statute are ‘substantially disproportionate to
the statute’s lawful sweep.’” Streett, 83 F.4th at 852 (quoting
Hansen, 	599 	U.S. 	at 	770). 	“For 	the 	statute 	to 	be
unconstitutionally overbroad, its ‘unconstitutional applications
must be realistic, not fanciful[.]’” Id. at 853 (quoting Hansen,
599 U.S. at 770); see also Members of City Council of L.A. v.
Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (“[T]here
must 	be 	a 	realistic 	danger 	that 	the 	statute 	itself 	will
significantly 	compromise 	recognized 	First 	Amendment
protections of parties not before the Court for it to be facially
challenged on overbreadth grounds.”). A “lopsided ratio” of
unconstitutional applications to constitutional ones suggests
impermissible overbreadth. Hansen, 599 U.S. at 770. The
upshot is, in this “singular context, even a law with ‘a plainly
legitimate sweep’ may be struck down in its entirety. But that
is 	so 	only 	if 	the 	law’s 	unconstitutional 	applications
substantially outweigh its constitutional ones.” Moody, 603
U.S. at 723-24 (emphasis added). “The overbreadth claimant
bears the burden of demonstrating, ‘from the text of [the law]
and from actual fact,’ that substantial overbreadth exists.”
Hicks, 539 U.S. at 122 (alteration in original) (quoting N.Y.
State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 14
(1988)).
Id. at 1293-94.
Although the Tenth Circuit has not directly addressed whether the Oklahoma
Pledges, Promises, or Commitments Clause is constitutional, the Court in reviewing
Kansas’ exceedingly similar version, commented about it positively. Kansas Judicial
Review v. Stout, 562 F.3d 1240, 1247 (10th Cir. 2009). The Court stated that “[w]hile we
do not prejudge the issue, the narrowing language of the new canons appears to
substantially reduce the potential that new Canon 4.1(A)(6) [—Kansas’ version of the
Pledges, Promises, or Commitments Clause—] will chill the plaintiffs’ future speech.” Id.
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The first step of the overbreadth inquiry requires the Court to construe the Pledges,
Promises, or Commitments Clause. Although no Oklahoma court has interpreted the
clause, Defendants, officials of the enforcing agency, have. See Pino, 186 F.4th at 761
(“‘Administrative interpretation and implementation of a regulation are … highly relevant’
and federal courts ‘must … consider any limiting construction that a state court or
enforcement agency has proffered.’”) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
795-96 (1989)). The Court agrees with Defendants that the Pledges, Promises, or
Commitments Clause clearly prohibits judicial candidates “from committing or appearing
to commit themselves to ruling a particular way if a particular party, issue, or case comes
before them.” [Doc. No. 10, at p. 14].
Furthermore, the Court finds 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. Indeed, comment 13 to the Pledges, Promises, or
Commitments Clause provides that “statements or announcement of personal views on
legal, political, or other issues . . . are not prohibited.” Okla. Stat. tit. 5, App’x 4, Rule 4.1
cmt. 13. Rather, when “making such statements, a judge should acknowledge the
overarching judicial obligation to apply and uphold the law, without regard to his or her
personal views.” Id. Accordingly, the Pledges, Promises, or Commitments Clause does not
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prohibit Plaintiff from referring to himself as a conservative, pro-life, or originalist judicial
candidate, but, rather, from committing to rule a certain way.
Moreover, Plaintiff has not carried his burden at step two, as he has failed to
establish the Pledges, Promises, or Commitments Clause’s unconstitutional applications
are “substantially disproportionate to the statute’s lawful sweep.” Terry, 183 F.4th at 1295
(citing United States v. Hansen, 599 U.S. 762, 770 (2023)) Indeed, “[t]his requires a court
to assess a law’s unconstitutional uses and compare them to its ‘valid reach.’” Id.
Here, 	Plaintiff 	offers 	no 	plausible 	examples 	of 	the 	Pledges, 	Promises, 	or
Commitment Clause’s unconstitutional applications and fails to accurately account for its
“lawful sweep.” Plaintiff’s failure in this regard warrants denial of his request for a
preliminary injunction because he has failed to establish a likelihood that he would prevail
on the merits of his claim. See Harmon v. City of Norman, Okla., 981 F.3d 1141, 1153 (10th
Cir. 2020) (finding the district court did not “abuse its discretion in denying Plaintiffs a
preliminary injunction, because they failed to establish a likelihood that they would prevail
on the merits of their facial overbreadth claim” when the plaintiffs “did not specifically
address, in any substance how the ordinance is overbroad. Nor did they attempt to compare
[its] . . . permissible and impermissible applications.”).
2. 	As-Applied.
When a party asserts an as-applied challenge, a court “tests the application of [a
law] to the facts of a plaintiff’s concrete case.” StreetMediaGroup, LLC v. Stockinger, 79
F.4th 1243, 1248-49 (10th Cir. 2023) (quotations omitted). “[A]n as-applied challenge
concedes that the statute may be constitutional in many of its applications, but contends
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that it is not so under the particular circumstances of the case.” United States v. Harrison,
153 F.4th 998, 1007 (10th Cir. 2025) (quotation and citation omitted).
Plaintiff’s as-applied challenge fails for the same reasons as his overbreadth
challenge. He has not provided the Court with any examples of speech that the Pledges,
Promises, or Commitments Clause prohibits him from expressing. Accordingly, Plaintiff
has failed to demonstrate that he is likely to succeed on the merits of his claim that the
Pledges, Promises, or Commitments Clause is unconstitutional. Thus, a preliminary
injunction enjoining Defendants from enforcing the Pledges, Promises, or Commitments
Clause is not warranted.1
C. The Advisory Opinions.
Plaintiff challenges the constitutionality of two advisory opinions: Jud. Ethics
Opinion 2018-7, 434 P.3d 17 (Okla. Jud. Eth. 2018) and Jud. Ethics Opinion 2026-2, No.
2026-2, 2026 WL 1365977, at *2 (Okla. Jud. Eth. May 12, 2026). Because the Court finds
that Plaintiff is likely to succeed on the merits of his claim regarding the Party Affiliation
Rule, the Court need not decide whether Defendants’ adoption and enforcement of
Advisory Opinion 2018-7 would be constitutional. Indeed, if Defendants are preliminarily
enjoined from enforcing the Party Affiliation Rule against Plaintiff, then they could not
adopt an advisory opinion that recommends enforcing the same rule.
1 The Court need not and does not consider the remaining preliminary injunction factors as to the
Pledges, Promises, or Commitments Clause, as Plaintiff has failed to demonstrate that he is likely
to succeed on the merits of his claim. See State v. U.S. Env’t Prot. Agency. 989 F.3d 874, 884 (10th
Cir. 2021) (“When the failure to satisfy one factor is dispositive, a court need not consider the other
factors.”)
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In Advisory 	Opinion 	2026-2, 	the 	Oklahoma 	Judicial 	Ethics Advisory 	Panel
determined, in relevant part, that the Pledges, Promises, or Commitments Clause prohibited
a judicial candidate from referring to himself as a “conservative” during his campaign. Jud.
Ethics Opinion 2026-2, 2026 WL 1365977, at *2. Defendants have represented that “they
will not enforce” Advisory Opinion 2026-2 because they disagree with the Advisory
Opinion’s interpretation of the clause’s prohibition. 	[Doc. No. 10, at p. 20]. Defendants
therefore argue that Plaintiff cannot succeed on his claim, because the issue is moot. Id.
“Unlike constitutional mootness, [prudential mootness] does not address a court’s
power to grant relief, but rather a court’s discretion in the exercise of such power.” Eaves
v. Polis, 167 F.4th 1304, 1311 (10th Cir. 2026) (citation omitted). “Even if a case is not
constitutionally moot, a court still may rely on its remedial discretion to conclude that the
benefit of the injunctive (or declaratory) relief is too slight or speculative to justify granting
such relief.” Id. (original emphasis).
“The party seeking prospective relief . . . has the burden of showing relief is needed
because there exists some cognizable danger of recurrent violation, something more than
the mere possibility which serves to keep the case alive.” Id. at 1312 (quotation and citation
omitted). “Thus, where a defendant asserts subsequent events have rendered a plaintiff’s
claim(s) for injunctive relief moot . . . to avoid dismissal on the basis of prudential
mootness, plaintiff bears the burden of establishing a recurrent violation of the wrongs
about which he complained is more than an abstract possibility, such that the court may
grant him some meaningful relief.” Id. (citations omitted).
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In light of Defendants’ rejection of Advisory Opinion 2026-2, Plaintiff has not
carried his burden to show that his claim is not prudentially moot. Indeed, he fails to make
any argument regarding how, under the circumstances, Defendants’ potential adoption and
enforcement of Advisory Opinion 2026-2 is more than an abstract possibility. Accordingly,
Plaintiff has also failed to demonstrate a likelihood of success on the merits as to his claim
regarding Advisory Opinion 2026-2. Thus, Plaintiff’s motion for a preliminary injunction
enjoining Defendants from enforcing the Advisory Opinions is denied.
II. Irreparable Harm.
“The Supreme Court has made clear that ‘the loss of First Amendment freedoms,
for 	even 	minimal 	periods 	of 	time, 	unquestionably 	constitutes 	irreparable 	injury.’”
Heideman, 348 F.3d at 1190 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Because Plaintiff has shown a likelihood of success on his claim that the Party
Affiliation Rule violates his First Amendment freedoms, he has demonstrated irreparable
harm.
III. Balance of Harms.
“A governmental interest in upholding a mandate that is likely unconstitutional does
not outweigh a movant’s interest in protecting his constitutional rights.” Pryor v. Sch. Dist.
No. 1, 99 F.4th 1243, 1254 (10th Cir. 2024) (citing Hobby Lobby, 723 F.3d at 1145).
Here, Defendants’ interest in enforcing the Party Affiliation Rule does not outweigh
Plaintiff’s interest in protecting his constitutional right of freedom of speech. Thus, as to
the Party Affiliation Rule, Plaintiff has also satisfied the balance of harms factor.
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IV. Public’s Interest.
“Finally, under the fourth prong for a preliminary injunction, Plaintiff must show
that the requested injunction is not adverse to the public interest.” Id. at 1255 (citation
omitted). “It is always in the public interest to prevent the violation of a party’s
constitutional rights.” Id. (citing Hobby Lobby, 723 F.3d at 1145). Thus, granting Plaintiff’s
motion for preliminary injunction as to Defendants’ enforcement of the Party Affiliation
Rule is not adverse to the public’s interest.
CONCLUSION
Plaintiff has demonstrated that a preliminary injunction enjoining Defendants from
investigating complaints regarding his purported violation(s) of the Party Affiliation Rule
occurring while he is or was a candidate for judicial office, and enjoining Defendants from
recommending he be disciplined for such violations during the pendency of this litigation,
is warranted.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss [Doc. No.
13] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Preliminary Injunction
[Doc. Nos. 3, 4] is GRANTED IN PART AND DENIED IN PART as set forth herein.
Defendants are hereby preliminarily enjoined from investigating complaints regarding
Plaintiff’s purported violation(s) of the Party Affiliation Rule occurring while he is or was
a candidate for judicial office, and preliminarily enjoined from recommending Plaintiff be
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disciplined for such violations. This preliminary injunction shall remain in full force and
effect until this action can be determined on the merits or until further order of the Court.
IT IS SO ORDERED this 9th day of October, 2026.
TIMO~b E	~I ~~J:UNITED STATES DISTRICT W DGE
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