Randolph Wolfson v. Colleen Concannon
2016 U.S. App. LEXIS 1285
| 9th Cir. | 2016Background
- Randolph Wolfson, a judicial candidate in Arizona (2006, 2008), challenged Arizona Code of Judicial Conduct Rule 4.1 provisions that bar: personal solicitation of campaign funds, endorsements/speeches for other candidates or political organizations, and active participation in political campaigns other than his own.
- Wolfson sued the Arizona Commission on Judicial Conduct and Chief Bar Counsel, asserting First Amendment violations (speech and association); district court granted summary judgment for the Commission applying intermediate scrutiny.
- The Ninth Circuit en banc reviewed the case after panel decision and the Supreme Court’s decision in Williams‑Yulee v. Florida Bar was issued during the appeal.
- The Ninth Circuit held that, in light of Williams‑Yulee, strict scrutiny applies to judicial candidate speech restrictions and evaluated Arizona’s Personal Solicitation Clause, Endorsement Clauses, and Campaign Prohibition under that standard.
- The court concluded Arizona has a compelling interest in preserving public confidence in the judiciary and that the challenged rules are narrowly tailored (i.e., survive strict scrutiny), and therefore affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of scrutiny for judicial‑campaign speech restrictions | Intermediate scrutiny (as district court applied) is appropriate | Williams‑Yulee supports strict scrutiny for such restrictions | Strict scrutiny applies (Williams‑Yulee controls) |
| Personal Solicitation Clause (ban on personal fundraising) | Not narrowly tailored; Arizona’s interest differs from Florida’s | State interest in preserving public confidence in judicial integrity is compelling and restriction is tailored | Clause is narrowly tailored and survives strict scrutiny |
| Endorsement Clauses (ban on endorsing/ speaking for others) | Underinclusive, overbroad, not least restrictive; recusal & contribution limits are adequate alternatives | Aimed at conduct that undermines judicial credibility; state may focus on pressing concerns; recusal/unworkable | Clauses are not underinclusive or overbroad and survive strict scrutiny |
| Campaign Prohibition (ban on taking part in other campaigns) | Overbroad and not least restrictive; harms political speech | Prevents entanglement with partisan politics and preserves structural judicial independence; recusal impractical | Prohibition is narrowly tailored to compelling interest and survives strict scrutiny |
Key Cases Cited
- Williams‑Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (plurality holds strict scrutiny applies to prohibition on personal solicitation by judicial candidates and upholds rule)
- Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) (campaign speech merits highest First Amendment protection)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (First Amendment applies to election‑related speech)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (state interest in public confidence in judicial integrity supports recusal doctrine)
- Burson v. Freeman, 504 U.S. 191 (1992) (speech restrictions need not be perfectly tailored; some imprecision is permissible)