Rule Against Campaign Fund Requests|by AZ Judicial Candidates Faces Review

(CN) - Arizona's refusal to let unelected judicial candidates solicit campaign contributions will face en banc review, the 9th Circuit said Friday.

The case arises from a 2008 challenge to several provisions of the regulatory Arizona Code of Judicial Conduct brought by Randolph Wolfson, an unsuccessful candidate for judicial office in Mohave County.

Wolfson sought to speak about his views on legal and political issues while campaigning for future office, but feared he would be disciplined under the code if he did so.

Though U.S. District Judge Frederick Martone upheld the Arizona restrictions in 2011, a three-judge panel of the 9th Circuit found 2-1 this past May that all five challenged provisions were unconstitutional.

Martone had said that 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," but the 9th Circuit majority found that a state "sets itself on a collision course with the First Amendment" when it chooses to elect its judges and then restricts the candidates' speech.

In Arizona, citizens elect local judicial officers in Arizona counties with less than 250,000 people. Maricopa, Pima, and Pinal counties choose judges through a meritorious process.

The 9th Circuit majority said voters have a right to know the political views of a potential judge, the majority added.

One concurrence filed with the opinion opened with a quotation by Justice Otto Kaus, who famously likened sitting for judicial election while judging cases to "brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub."

Judge Richard Tallman wrote in dissent that it is constitutional to bar candidates from giving speeches on behalf of others, endorsing others and 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," he wrote.Tallman agreed that the other two challenged rules - a ban against campaigning for others and a ban against personal solicitation - cannot stand.

Judge Richard Paez wrote the majority opinion, which Judge Marsha Berzon joined.

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