Ariz. Campaign Limits Give 9th Circuit Pause

     (CN) – Campaigning limits that Arizona sets on judicial candidates had the 9th Circuit trying to reconcile the realities of electioneering with traditional codes for judicial conduct.
     Randolph Wolfson was trying to win a seat in the Mohave County Superior Court in 2008 when he challenged rules that prohibit judicial candidates from endorsements or direct fundraising activities.
     He sued members of the Arizona Commission on Judicial Conduct, the Arizona Disciplinary Commission and the State Bar of Arizona.
     Even though he had pledged not to make promises to campaign donors about how he would rule if elected, Wolfson claimed that the Arizona Code of Judicial Conduct, which is also called “The Canons,” unconstitutionally silenced him in two elections.
     While campaigning, the Canons allegedly kept Wolfson from publicly discussing his views on disputed legal and political issues, such as his support of a proposed Arizona amendment making marriage exclusively for man and woman unions.
     U.S. District Judge Frederick Martone sided with Arizona’s restrictions in 2011.
     Restrictions on endorsements and political activities are needed to prevent “judges from misusing the prestige of their office to further political aspirations of parties or candidates,” that ruling stated.
     Martone also supported limiting “a judge’s or judicial candidate’s participation in politics in order to avoid the appearance and reality of a biased, partisan judiciary.”
     Fundraising should be done by a candidate’s campaign committee because “personal solicitations create the risk that judges’ decisions in cases will be affected by campaign contributions,” the court found. “Restrictions on personal solicitations are meant to preserve both the appearance and reality of judicial impartiality. Any candidate for judicial office who would ask the lawyers who would appear before that person for money does not know what it means to be a judge.”
     As Wolfson appeals the decision to the 9th Circuit for the second time, a three-judge panel heard arguments on the case Thursday in San Francisco.
     Wolfson’s attorney, Anita Woudenberg of The Bopp Law Firm in Indiana, argued that the restrictions go too far. Judges can always recuse themselves from a case if they feel they cannot be impartial, and voters can decide at the next election whether a judge has been biased, Woudenberg said.
     Arizona’s regulations “interfere with that accountability,” she added.
     Arizona Assistant Attorney General Charles Grube countered that campaign committees are effective intermediaries for insulating judicial candidates from campaign donors.
     Arizona’s Grube Judge Richard Tallman noted that the U.S. Supreme Court has found otherwise.
     “We don’t solve that anti-corruption concern by simply designating the judge’s next friend as the bag man in soliciting the money,” Tallman said.
     Grube insisted that the committees work because they involve more people who are accountable, and they carry powerful legal duties.
     The Arizona’s attorney argued about the potential for bias that could arise if contenders for the bench trade political and judicial endorsements for money.
     Judge Marsha Berzon noted, however, that states “are kind of blurring the lines” when they start having elected judges.
     Grube said that the state’s rules for judicial elections express the public’s interest in preventing corruption, as well as the appearance of corruption, and not “a generalized concern that somehow judges should be above the tacky business of politics.”
     Tallman wanted to know whether a candidate could send a letter soliciting money to each registered voter and lawyer in Mohave County, where Wolfson ran and lost.
     Grube said no.
     Judge Berzon followed up by asking, “What is the interest in precluding it in a world where you are in fact electing judges and judges have to be able to have some money?”
     Grube set himself up when he told the court, “The candidate is free to say anything to the electorate.”
     “Such as ‘I need some money,'” Berzon quipped. The three judges on the panel laughed, but Grube said such a direct request was not allowed.
     He followed up to say, “When you get right down to it, saying to the electorate that ‘I need money’ is like saying ‘I need oxygen,’ everybody knows that already.”
     Berzon countered that “there are a lot of problems with this.”
     “There’s all kinds of case law that says there’s a First Amendment right in solicitation,” she added.
     “Another problem with the whole task of electing judges, and I see this when I vote for judges myself, is that I don’t know who these people are,” Berzon said.
     She asked Grube how he expected voters to learn about judicial candidates in what she characterized as “very opaque elections, where people tend to have minimal information and, frankly, to vote based … on these cards that come in [the mail] that say vote for so-and-so.”

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