Metropolitan News-Enterprise


Monday, August 16, 2010


Page 1


Court Revives Challenge to Judicial Candidate Restrictions


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday revived a challenge to Arizona’s restrictions on the political speech and campaign-related activities of judicial candidates.

A three-judge panel said a federal judge in Phoenix erred in dismissing a former candidate’s lawsuit against state disciplinary authorities as moot because the issue was “capable of repetition, yet evading review” where the candidate—who is not running this year—indicated he might do so in the future.

Bullhead City, Ariz., attorney Randolph Wolfson, who unsuccessfully sought election to the bench in 2006 and 2008, claimed that canons in the state’s Code of Judicial Conduct prohibiting judicial candidates from soliciting campaign contributions, endorsing or campaigning for other candidates, or stating their views on disputed legal and political issues were unconstitutional.

He first sued state disciplinary authorities during the 2006 campaign, alleging that he refrained from those activities because he believed they might violate the canons. Wolfson said he wanted to give talks regarding same-sex marriage and family values during the campaign, in which an initiative pertaining to same-sex marriage appeared on the ballot.

U.S. District Court Judge Stephen M. McNamee of the District of Arizona, however, dismissed the action the following year on prudential ripeness grounds, directing Wolfson to obtain an advisory opinion from Arizona’s Judicial Ethics Advisory Committee clarifying what activities were prohibited. Wolfson did so, but filed suit again in 2008 while running for another judicial office after the committee issued an opinion unfavorable to his position.

When Wolfson lost his second bid, U.S. District Court Judge Frederick J. Martone ordered him to submit a supplemental brief indicating whether he intended to seek judicial office in the 2010 election. Wolfson replied that he did not, and Martone dismissed the action as moot, reasoning that the canons applied only to judges and candidates for judicial office.

But Senior Judge J. Clifford Wallace wrote on appeal that Wolfson met an exception to the mootness doctrine for an action that is “capable of repetition, yet evading review,” and the judge rejected as “clearly erroneous” Martone’s finding that Wolfson did not intend to seek office in any other future election.

Noting that Wolfson declared an intent to seek judicial office at some point in the future both in his 2008 complaint and in filings on appeal, Wallace explained:

“We do not fault Wolfson for answering the specific question posed in the district court’s order, and we do not fault Wolfson for failing to volunteer information that the court had not requested.”

Wallace rejected arguments that Wolfson lacked standing, concluding that the claims were redressable where a favorable decision would give him freedom to engage in certain activities without fear of punishment.

The judge also wrote that Wolfson’s claims against the solicitation, endorsement and campaigning prohibitions were constitutionally ripe where his claimed threat of prosecution was genuine. He further concluded the claims were prudentially ripe where they were primarily legal and did not require substantial further factual development, and where they alleged a hardship through the “constitutionally-recognized injury” of self-censorship.

However, Wallace rejected Wolfson’s challenges to a prohibition on pledges or promises by a candidate as unripe, opining that Wolfson’s “bare allegations” that his speech had been chilled by the challenged statute were insufficient to establish a reasonable fear of prosecution because Wolfson admitted he had no “concrete plan” to violate the restriction.

Judges M. Margaret McKeown and Susan P. Graber joined Wallace in his opinion, but Graber dissented that the court should have considered whether Wolfson’s claims were ripe as to each of the defendants: the Arizona Commission on Judicial Conduct, the members of the Arizona Supreme Court Disciplinary Commission and the state’s chief bar counsel.

Examining each, she wrote that the claims were ripe as to all of the defendants except the Commission on Judicial Conduct because it would have jurisdiction over Wolfson “only if he runs for judicial office and wins.”

The case is Wolfson v. Brammer, No. 09-15298.


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