Would-Be Judge Gets 9th to Nix Campaign Rules

(CN) - Arizona cannot stop unelected judicial candidates from soliciting campaign contributions, the 9th Circuit ruled, finding they should not face the same standards as judges already on the bench.

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.

Randolph Wolfson, an unsuccessful candidate for judicial office in Mohave County, brought the suit in 2008, alleging that several provisions of the regulatory Arizona Code of Judicial Conduct violated the First Amendment. 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.

A three-judge panel of the 9th Circuit considered the case last year after U.S. District Judge Frederick Martone upheld the Arizona 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," Martone had said.

In its reversal Friday, the divided San Francisco-based appellate deemed the five challenged provisions unconstitutional.

The majority found that a rule banning judicial candidates from "speechifying for another candidate or organization, endorsing or opposing another candidate, fundraising for another candidate or organization, or actively taking part in any political campaign other than his or her own" was unconstitutional.

"The day before a private citizen becomes a judicial candidate, he or she could have been a major fundraiser or campaign manager for another elected official, or may have donated large sums of money to another's political campaign, or may have himself been an elected politician," Judge Richard Paez wrote for the majority.

When a state chooses to elect its judges and restricts the candidates' speech, it "sets itself on a collision course with the First Amendment," the 29-page ruling states.

Voters have a right to know the political views of a potential judge, the majority added.

"Any imperilment of public confidence has its roots in the very nature of judicial elections, and not in the speech of candidates who must participate in those elections to become judges," Paez wrote.

The ruling also finds Arizona's rule on solicitations are "underinclusive: a personal solicitation by a campaign committee member who may be the candidate's best friend or close professional associate (such as a law practice partner) is likely to have a greater risk for 'coercion and undue appearance' than a signed mass mailing or request during a speech to a large group." (Parentheses in original.)

Judge Marsha Berzon joined Paez and used a concurring opinion to emphasize that ruling addressed only how the statutes in question apply to judicial candidates who had not yet ascended to the bench.

That 15-page concurrence opens 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."

"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," Berzon wrote. "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 opinion studiously - and designedly - does not address that issue. But it is worth explaining why, in my view, the considerations pertinent to evaluating the complex of constitutional issues raised by such restrictions are quite different than those the majority opinion applies today."

In a brief dissent, Judge Richard Tallman insisted 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.

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