Metropolitan News-Enterprise


Thursday, January 28, 2016


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Panel Upholds Restrictions on Judicial Candidate Speech




Arizona’s restrictions on the political speech and campaign-related activities of judicial candidates pass muster under the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The 11 judges who reheard the case en banc were unanimous in concluding that the restrictions are narrowly tailored to serve the state’s compelling interest in maintaining public confidence in the integrity and independence of the judiciary.

A three-judge panel ruled in 2014 that the state failed to show that the challenged rules were necessary to preserve those interests, at least as to candidates who aren’t already judges.

The en banc court, however, concluded that those rules survive strict scrutiny.

The rules bar all judicial candidates, incumbents and non-incumbents alike, from personally soliciting funds for the candidate’s own campaign or for a campaign for another candidate or political organization, from publicly endorsing another candidate for public office, from making speeches on behalf of another candidate or political organization, and from actively taking part in any political campaign.

Bullhead City 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, which took place in the same period that 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 Grounds

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, Senior U.S. District 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.

Gould’s Opinion

Judge Ronald Gould, writing for the court yesterday, cited Williams-Yulee v. Florida Bar (2015) 135 S. Ct. 1656, in which the Supreme Court upheld Florida’s ban on direct, personal solicitation of campaign funds by judicial candidates.

“Judges engaging in political acts may present different levels of impropriety in different situations,” Gould wrote. “It is not our proper role to second-guess Arizona’s decision in this regard.”

The ruling rejected Wolfson’s argument, which the three-judge panel found persuasive, that judicial recusal would necessarily avoid the actuality or appearance of impropriety.

“An extensive recusal record could cause the same erosion of public confidence in the judiciary that Arizona’s endorsement clauses and campaign prohibition are trying to prevent,” Gould wrote.

Gould was joined by Chief Judge Sidney R. Thomas and Judges Diarmuid F. O’Scannlain, Susan P. Graber, William A. Fletcher, Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan, Morgan Christen, and Andrew D. Hurwitz.

Judge Marsha S. Berzon, who wrote a concurring opinion while sitting on the three-judge panel, joined her colleagues yesterday while emphasizing in a concurring opinion that in-person solicitations by judicial candidates posed “unique risk of a quid pro quo arrangement.”

While the fear of biased decision making might not be a sufficient reason to override free-speech concerns, she said, “the vital interest in structural judicial independence” is. The Arizona rules, she concluded, keep judges “from being entangled in the legislative and executive political process” and maintain their ability to rule on the merits of cases instead of “engaging in the usual, often contentious and fiercely partisan, political processes.”

She also questioned whether incumbents and non-incumbents should be treated identically under the rules, but concluded that the rules are valid as to both groups.

Tallman, who wrote a partial dissent in 2014 arguing that the restrictions against campaigning for other candidates and against personally soliciting donations are unconstitutional, reversed course and joined the majority yesterday. Judge Richard Paez, who wrote the three-judge panel opinion, wasn’t on the en banc panel.

The case is Wolfson v. Concannon, 11-17634.


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