Randolph Wolfson v. Colleen Concannon

*1149 OPINION

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 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. Here we must decide whether several provisions in the Arizona Code of Judicial Conduct restricting judicial candidate speech run afoul of First Amendment protections. Because we are concerned with content-based restrictions on electioneering-related speech, those protections are at their apex. Arizona, like every other state, has a compelling interest in the reality and appearance of an impartial judiciary, but speech restrictions must be narrowly tailored to serve that interest. We hold that several provisions of the Arizona Code of Judicial Conduct unconstitutionally restrict the speech of non judge candidates because the restrictions are not sufficiently narrowly tailored to survive strict scrutiny. Accordingly, we reverse the district court’s grant of summary judgment in favor of Defendants.

I.

Arizona counties with fewer…

concurring:

Sitting for judicial election while judging cases, Justice Otto Kaus famously quipped, is like “brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.” Joseph R. Grodin, In Pursuit of Justice: Reflections of a State Supreme Court Justice 177 (1989) (quoting Kaus). Kaus would know. He sat on the California Supreme Court from 1981 to 1985, Gerald T. McLaughlin, Memorial Dedication to Otto Kaus, 30 Loy. L.A. L.Rev. 923, 923 (1997), having narrowly won a retention election in 1982 and retiring from the court soon before the 1986 vote that would unseat three of his former colleagues, Stephen R. Barnett, Otto and the Court, 30 Loy. L.A. L.Rev. 943, 947 & n.19 (1997). 1

Kaus’ point about the psychology of judging applies outside the context of judicial elections, for the temptation to engage in overt political behavior affects judges generally. And so I write separately to identify, and hopefully to tame, the “crocodile” stalking today’s majority opinion: the prospect that the principles we apply now will be used in future litigation to challenge the constitutionality of restrictions on the political behavior of sitting judges. The…

dissenting in part:

I agree with the majority that strict scrutiny — not Seifert — is the appropriate standard. I agree that we should limit our decision to non-incumbent judicial candidates. And I agree that Rules 4.1(a)(5) (campaigning for others) and 4.1(a)(6) (personal solicitation) are unconstitutional as applied to those candidates. I concur in the majority opinion only on those points. I part company with my colleagues as to Rules 4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing others), and (4) (soliciting money for others). These three rules are constitutional 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.

My colleagues acknowledge that these three rules “present the closest question,” and that the Eighth Circuit upheld similar ones. Wersal, 674 F.3d at 1024-25. *1168 Nonetheless, the majority concludes that they are not narrowly tailored for two reasons: timing and recusal. The timing argument is that the rules are underinclusive because “they only address speech that occurs beginning the day after a non judge candidate has…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDOLPH WOLFSON, No. 11-17634 Plaintiff-Appellant, D.C. No. v. 3:08-cv-08064-

FJM

COLLEEN CONCANNON, in her official capacity as member of the Arizona Commission on Judicial OPINION Conduct; LOUIS FRANK DOMINGUEZ, in his official capacity as member of the Arizona Commission on Judicial Conduct; PETER J. ECKERSTROM, in his official capacity as member of the Arizona Commission on Judicial Conduct; GEORGE H. FOSTER, in his official capacity as member of the Arizona Commission on Judicial Conduct; SHERRY L. GEISLER, in her official capacity as member of the Arizona Commission on Judicial Conduct; MICHAEL O. MILLER, in his official capacity as member of the Arizona Commission on Judicial Conduct; ANGELA H. SIFUENTES, in her official capacity as secretary of the Arizona Commission on Judicial Conduct; CATHERINE M. STEWART, in her official capacity as member of the Arizona Commission on Judicial Conduct; J. TYRELL TABER, in his official capacity as member of the Arizona Commission on Judicial Conduct; LAWRENCE F. WINTHROP, in his official capacity as member of…