Federal Court Upholds Arizona Limits on Judges’ Campaign Activities

Saturday, January 30, 2016

By Nick Rummell, Courthouse News Service

 

(CN) - Saying free-speech rights cannot outweigh the need to preserve judicial integrity, the en banc Ninth Circuit on Wednesday upheld an Arizona law banning judges from soliciting donations or stumping for colleagues.

 

The 21-page lead opinion affirms five provisions in Arizona judicial code, which restrict judicial candidates from in-person solicitation or endorsing and campaigning for other candidates publicly, under the First Amendment.

 

Randolph Wolfson, an attorney who ran two unsuccessful campaigns for judgeships in Arizona, brought the challenge in 2008.

 

After losing his first campaign in 2006, Wolfson feared in 2008 that he would be disciplined for violating the state judicial conduct codes.

 

The Ninth Circuit agreed to hear Wolfson's case en banc after a divided three-judge panel struck down all five challenged provisions as unconstitutional in May 2014, reversing an earlier decision for the state by U.S. District Judge Frederick Martone.

 

Five months before the en banc rehearing in September, the U.S. Supreme Court upheld a similar scheme in Florida where the Sunshine State banned judicial candidates from direct, personal solicitation of campaign funds.

 

Though the April decision Williams-Yulee v. Florida Bar (pdf) upended the standard by which the trial court reviewed Wolfson's claim, the en banc court said Wednesday that Martone was still right to uphold Arizona's law.

 

"Judges engaging in political acts may present different levels of impropriety in different situations," Judge Ronald Gould wrote for the 11-member court. "It is not our proper role to second-guess Arizona's decision in this regard."

 

The ruling rejects Wolfson's proposal of judicial recusal as a catch-all solution to potential quid pro quo bias.

 

"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.

 

The opinion was unanimous but Judge Marsha Berzon - a member of the 2-1 majority in 2014 - emphasized in a concurring opinion today that in-person solicitations by judicial candidates posed "unique risk of a quid pro quo arrangement" and outweighed some of the free speech concerns.

 

Judge Richard Tallman wrote the dissent in 2014 but did not state why he now joined the en banc majority.

 

To Learn More:

Spending by Special-Interest Groups in Judicial Elections Hits Record High (by Steve Straehley, AllGov)

More Evidence that TV Ads in Judicial Elections Lead to Less Sympathy for Defendants back in the Courtroom (by Noel Brinkerhoff, AllGov)

Increased Spending on Judicial Elections Leads to Increase in Guilty Verdicts (by Matt Bewig, AllGov)

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