Randolph Wolfson v. Colleen Concannon
750 F.3d 1145
9th Cir.2014Background
- Arizona Code of Judicial Conduct (Rule 4.1) bars judges and judicial candidates from: speaking for or endorsing other candidates/organizations, soliciting or contributing to other campaigns beyond narrow exceptions, participating in others’ campaigns, and personally soliciting or accepting campaign contributions outside an authorized committee.
- Randolph Wolfson, a non-incumbent attorney who ran unsuccessfully for Mohave County judicial office and intends to run again, sued to enjoin five provisions of Rule 4.1 as facially and as-applied violations of the First Amendment.
- The district court upheld the provisions using a balancing approach borrowed from public-employee speech cases (Seifert/Bauer), treating the speech as less-than-core political speech and emphasizing “fundamental fairness.”
- On appeal the Ninth Circuit limited the review to Wolfson’s status as a non-judge candidate (declining to decide constitutionality as applied to sitting judges) and framed the challenged restrictions as content- and speaker-based limits on campaign speech.
- Applying strict scrutiny, the panel evaluated Arizona’s asserted compelling interests (impartial judiciary, avoidance of corruption/public confidence) and narrow tailoring of each challenged clause.
Issues
| Issue | Wolfson's Argument | Arizona's Argument | Held |
|---|---|---|---|
| Standard of review for restrictions on a non-incumbent judicial candidate’s campaign speech | Strict scrutiny applies because rules are content- and speaker-based limits on political speech | Adopt Seifert/Bauer balancing (public-employee-speech framework) | Strict scrutiny applies to non-judge candidates; Seventh Circuit balancing rejected |
| Validity of solicitation ban (Rule 4.1(A)(6): no personal solicitation/acceptance outside a campaign committee) | Overbroad/underinclusive; sweeps in low-risk speech (mass mailings, speeches), not narrowly tailored to prevent quid pro quo or bias | Ban prevents problematic personal solicitations that create appearance of impropriety | Unconstitutional as applied to non-judge candidates — not narrowly tailored; invalidated |
| Validity of political-activities bans (Rules 4.1(A)(2)-(5): speeches/endorsements/fundraising for others; participation in other campaigns) | These are core political speech; underinclusive (only applies after candidacy filing) and less-restrictive alternatives (recusal) exist | Rules protect judicial impartiality and public confidence; uniform rules between judges/candidates are necessary | Rules 4.1(A)(2)-(4) and (5) unconstitutional as applied to non-judge candidates: (2)-(4) underinclusive and not narrowly tailored; (5) overbroad (prohibits protected issue speech) |
| Scope of review: whether decision should also resolve constitutionality as applied to sitting judges | Challenge limited to Wolfson (non-judge); he cannot assert rights of sitting judges | Defendants treated candidates and sitting judges alike and relied on employee-speech analogies | Court limited decision to non-judge candidates and expressly declined to decide constitutionality as applied to sitting judges |
Key Cases Cited
- Republican Party of Minn. v. White, 536 U.S. 765 (2002) (campaign speech by judicial candidates is core First Amendment speech; limits must be narrowly tailored)
- Buckley v. Valeo, 424 U.S. 1 (1976) (framework for contribution/expenditure regulation; not controlling for solicitation bans aimed at candidate speech)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (public-employee speech balancing; government has distinct employer interests)
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (content-based restrictions on political speech face strict scrutiny)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (compelling interest in protecting judicial integrity and public confidence)
- Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) (applied public-employee balancing to restrictions on judicial speech)
- Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) (Seifert line extending to other judicial conduct rules)
- Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012) (upheld narrower solicitation/endorsement limits under strict scrutiny in a different formulation)
- Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010) (invalidated broad solicitation ban that swept in group solicitations and mass mailings)
- Sanders County Republican Central Committee v. Bullock, 698 F.3d 741 (9th Cir. 2012) (applied strict scrutiny to content-based restrictions on judicial election-related speech)