Metropolitan News-Enterprise


Monday, May 12, 2014


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Court Tosses Some Restrictions on Judicial Candidate Speech




The Ninth U.S. Circuit Court of Appeals on Friday struck down some of Arizona’s restrictions on the political speech and campaign-related activities of judicial candidates.

In a 2-1 decision, the court said the state failed to show that its rules prohibiting judicial candidates from soliciting campaign contributions, and from endorsing or campaigning for other candidates, were necessary to preserve the state’s interest in maintaining judicial integrity and impartiality.

The court limited the application of its decision to candidates who, like the plaintiff in the suit, are not serving as judges while running for the office.

Bullhead City, Ariz., attorney Randolph Wolfson who unsuccessfully sought election to the superior court bench in Mohave County in 2006 and 2008, 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. He also said he wanted to solicit donations at campaign events and by direct solicitation.

Ripeness Issue

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.

The Ninth Circuit reversed, saying the mootness exception for issues “capable of repetition, yet evading review,” applied, and that the plaintiff’s claims were ripe because he did not rule out running for judge in the future.

On remand, Martone said the state’s interests in protecting due process, the appearance and reality of impartial justice, and the avoidance of “coercion and bias” in campaign fundraising, outweighed the First Amendment concerns raised by the plaintiff.

Strict Scrutiny

But Judge Richard Paez, writing for the Ninth Circuit Friday, said the restrictions could not survive strict scrutiny.

“A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech,” the judge wrote. “The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process.”

While “Arizona has a compelling interest in an uncorrupt judiciary that appears to be and is impartial to the parties who appear before its judges,” he wrote, the state’s rules go further than necessary to achieve that interest.

The state was also unpersuasive in arguing that its compelling interest extends to prohibiting non-judges from “trampling on the interests of impartiality and public confidence” because of the possibility they will be judges after the election, Paez said. And it cannot legislate away “judicial campaign abuses that threaten to imperil public confidence,” he said, because any loss of public confidence “has its roots in the very nature of judicial elections, and not in the speech of candidates who must participate in those elections to become judges.”

Arizona, he said, failed to show that less drastic remedies, including recusal of successful candidates from subsequent cases in which their campaign activities created an appearance of partiality, would be insufficient to avoid the ills sought to be averted by the rules. Nor, he said, did it show any reason why it was necessary to prohibit a judicial candidate from becoming involved in any campaign other than his or her own, “including political campaigns for ballot propositions that present no risk of impartiality towards future parties.”

Concurring Opinion

Judge Marsha Berzon concurred separately, emphasizing the limited scope of the decision. She pointed out that none of the restrictions, other than the direct solicitation ban, relate to the candidate’s activities on his or her own behalf, while the others all relate to a candidate’s involvement in other campaigns.

Judge Richard Tallman, dissenting in part, agreed that the restrictions against campaigning for other candidates and against personally soliciting donations are unconstitutional.

But rules prohibiting giving speeches on behalf of, endorsing, or soliciting money on behalf of other candidates, he argued, are valid “because they are narrowly tailored to serve the state’s compelling interest in maintaining judicial impartiality and its appearance—the hallmark of government’s third branch.” Providing for recusal of those candidates later, he insisted, “is too impractical,” given how few judges most counties in Arizona have.

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


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