Circuit Revives Arizona Election Law Challenge

(CN) - An Arizona attorney who lost two bids for judicial office can still challenge the state's restrictions on political speech, the 9th Circuit ruled, because he plans to run again in the future.

Attorney Randolph Wolfson filed a federal lawsuit against the members of the Arizona Commission on Judicial Conduct, the Arizona Supreme Court Disciplinary Commission and Arizona Chief Bar Counsel Robert Van Wyck, claiming the judicial code restricts his political speech and campaign-related activities.

Wolfson, who lost both times he ran, said he was "chilled" from soliciting campaign contributions personally at live appearances, speaking engagements and in phone calls, and from signing his name to letters seeking donations.

He argued that the code prevented him from endorsing other candidates and supporting their election campaigns, answering certain questions from voters, and presenting his views on disputed legal and political issues.

A federal judge dismissed the lawsuit on the basis that Wolfson told the court that he was not going to run for office in 2010.

On appeal, Wolfson argued that the court was simply evading review of his case.

The 9th Circuit panel in San Francisco voted 2-1 to reinstate the case. Even though Wolfson doesn't plan to run in 2010, the court reasoned, he plans to run at some point in the future, making his challenge still valid.

"We hold that Wolfson's claims regarding the solicitation, campaigning, and endorsement clauses satisfy the concerns of prudential ripeness," Judge J. Clifford Wallace wrote.

In a partial dissent, Judge Susan Graber disagreed that Wolfson's claims were ripe.

"Because the potential for the commission to discipline Plaintiff is speculative and rests on a series of contingencies, not all of which are within his control," Graber wrote, "I would hold that Plaintiff's claims against Defendants who are members of the Commission are not ripe."

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