Randolph Wolfson v. Colleen Concannon

WOLFSON, Randolph Plaintiff-

Aрpellant, CONCANNON, Colleen in her official capacity as member of Arizona Conduct;

Commission on Judicial Dominguez, Louis Frank his offi capacity cial as member of the Ari zona on Commission Judicial Con

duct; Eckerstrom, Peter J. in his capacity

official as member of the Arizona Commission on Judicial

Conduct; George Foster, H. in his capacity official as member of the Arizona Commission on Judicial

Conduct; Sherry Geisler, L. in her capacity official as member of the Arizona Commission on Judicial

Conduct; Miller, Michael O. in his capacity official as member of the Arizona Commission Judicial

Conduct; Angela Sifuentes, H. capacity

her secretary official the Arizona Commission on Judicial

Conduct; Stewart, M. Catherine capacity her official as member of the Arizona Commission on Judicial Tyrell

Conduct; Taber, J. in his of capacity ficial as member Arizona Commission Judicial

Conduct; Winthrop, Lawrence F. capacity his official as member of the Arizona Commission on Judicial

Conduct; Vessella, Maret Chief Bar

Counsel State Bar of Ari zona, Defendants-Appellees.

No. 11-17634. Appeals, United States Court of Ninth Circuit. Argued July and Submitted May 9, Filed Woudenberg (argued),

Anita Y. The Firm, Haute, IN, for Bopp Law Terre Plaintiff-Appellant. (argued), A.

Charles Grube Assistant General, Attorney Attorney Arizona Gen- Office, Phoenix, AZ, eral’s for Defen- Concannon, dants-Appellees Colleen Louis Eckerstrom, Dominguez, Frank Peter J. Foster, Geisler, George Sherry H. L. Mi- Miller, Sifuentes, Angela chael O. H. Stewart, Taber, Tyrell Catherine M. Winthrop Lawrence F. in their official ca- as members of the Arizona pacities Com- Conduct; Kimberly mission on Judicial A. Roca (argued), Rothger- Demarchi Lewis Phoenix, LLP, AR, Defendant>-Ap- ber Vessella, pellee Maret Chief Bar Counsel Bar of of the State Arizona. PAEZ,

Before: RICHARD A. BERZON, RICHARD MARSHA S.

TALLMAN, Judges. C. Circuit

H49 OPINION I. 250,000 Arizona counties with fewer than

PAEZ, Judge: Circuit popularly people elect local offi- Const, VI, cers. See Ariz. §§ art. 40.1 A sets itself on collision state course The Arizona Code Judicial Conduct2 First when it with the Amendment choos- (the “Code”) regulates the conduct of re- popularly es to elect its but judges campaigning judi- for retention and stricts a candidate’s speech. cial campaigning candidates for office. conflict arises from fundamental provides discipline Code if a candi- of apolitical judi- tension between the ideal judge, date elected lawyers as a who cial independence and the critical nature in their candidacy may unsuccessful politi- unfettered in the electoral subject also discipline the Ari- under cal process. Here we must decide wheth- Rules of zona Professional Conduct.3 See provisions er several Arizona Code 17A, Sup.Ct. Rules, § Ariz.Rev.Stat. Ann. restricting judicial Judicial Conduct Conduct, Rule Rules of Prof. ER 8.2 run afoul of First protections. Amendment Because arewe Randolph Plaintiff Wolfson an un- was with concerned content-based restrictions successful candidate for office electioneering-related speech, those County, Arizona in Mohave 2006 and 2008. Arizona, protections apex. are at their I, 616 at F.3d 1052-53. He in- Wolfson state, every like other has compelling a run tends to in a future election. Id. at in the of reality appearance and candidate, 1054-55. As a Wolfson wished impartial judiciary, an but restric- to a conduct number of he activities be- narrowly tions must be tailored to serve Code, prohibited by lieved to be that interest. We provi- hold several so, profes- refrained from doing fearing sions of the Arizona Code Judicial Con- discipline.4 sional brought He this action duct unconstitutionally restrict the speech challenging the and as-applied facial con- judge of non candidates because re- stitutionality provisions of certain of the sufficiently strictions are not tai- narrowly Code, seeking declaratory injunctive and scrutiny. lored to survive strict Accord- Defending relief. this appeal are the ingly, we reverse the grant district court’s members the Arizona Commission on summary judgment (the “Commission”) in favor of Defen- Conduct Judicial and (“State dants. Arizona Chief Bar Counsel Bar Supreme appellate 1. Arizona and Court court 3. “An unsuccessful candidate who is and officers counties with a lawyer may subject and violates this code 250,000 (and greater population smaller discipline gov- applicable under court rules so) vote system counties that ‍‌​​​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‌‌‍to do use a 17A, erning lawyers.” § Ariz.Rev.Stat. Ann. merit selection with retention elections. Ariz. Rules, Conduct, Sup.Ct. Rule Code of Jud. Const, VI, §§ art. 40. (2009). cmt. 2 Canon 17A, Rules, Sup.Ct. § 2. Ariz.Rev.Stat. Ann. alleges personally he wanted "Wolfson Rule Code of Jud. Conduct After campaign ap- live solicit contributions at complaint, Wolfson filed his revised, the Code was 1, pearances speaking engagements, by September effective 2009. The making phone signing calls and his name to revision the Code recodified and renumber- I, seeking Rules, letters donations. 616 F.3d ed the but did alter the substance Wolfson alleges at He also that he wanted challenged appeal. of the Rules at issue in this Brammer, sup- See v. endorse other candidates for office and Wolfson Cir.2010) (9th I). (Wolfson campaigns. port election their Id. judges. at Counsel”), collectively the “Arizona defen- Id. 1064. ‘Wolf- rights son cannot assert the constitutional dants.” not, he when never of Rule challenges five clauses Wolfson be, group.” of that member “Rules”): (the 4.1 of Code remand, (A) ruling On cross-motions A or candidate shall summary judgment, ap- the district court following: any do of the plied balancing test articulated Alexander, Seventh v. Circuit (2) speeches po- on behalf Siefert make (7th Cir.2010), 608 F.3d 974 and Bauer or another candidate organization litical (7th Cir.2010), F.3d Shepard, 620 office; public constitutionality of the five upheld the (3) or publicly oppose endorse anoth- II, challenged provisions. Code office; Wolfson any public er candidate for balancing F.Supp.2d 929-30. for or pay solicit funds assess- from the test “derives Siefert/Bauer organization or candi- ment upholding line of Court cases date, make contributions to power governments to limited restrict political organization excess of date employees’ political speech in order law, permitted by the amounts make efficiency integrity promote fifty per- in excess of total contributions government Id. at 929. The services.” permitted cent of the cumulative total district court this standard held law.... appropriate “strikes an balance between (5) actively any political part take rights First weaker Amendment her campaign other than his or own stronger stake and the State interests in election, or re- reelection way regulating judges,” it chooses its office; tention speech at apparently because the issue was (6) personally accept cam- solicit speech” deserving not “core of strict scru- through contributions other than paign speech.” of true tiny “behavior short by campaign committee authorized Rule 6 at Id. 929-30. 4.4.... to 17A, Rules, proceeded district court balance § Sup.Ct. Ariz.Rev.Stat. Ann. (2009). against the the interests of state inter Rule of Conduct Code Jud. respect ests of candidate. With This is the second time that this case is (the political to the activities restrictions previously before us. held Wolfson clauses), and campaigning endorsement I challenges that Wolfson’s to these claus- the district court held (hereinafter “indorse es “solicitation” clause ments, speeches, making soliciting and (2)-(5)) clauses, “political and activities” funds on behalf other candidates is justiciable and remanded them to the were ... at political speech.” core Id. district court to consider them on mer- distinguished The district court between I, 1054-62, its. 1066- Wolfson announcing political one’s own views challenge his respect 67. With to to by qualifications speech protected Re promises” “pledges now-defunct — White, clause, publican Party Minn. we held that lacked stand- v. 536 Wolfson challenge applied it ing to insofar as it to U.S. 153 L.Ed.2d voluntarily closely 5. Wolfson all claims 6. Arizona's Code tracks the American dismissed defendant, against a third the Arizona Su Code Bar Association’s Model of Judicial Con- Disciplinary preme duct, Court Commission. Rule 4.1 Wolf Brammer, F.Supp.2d son 926-27 II). (D.Ariz.2011) (Wolfson (2002) (White I) type committee,” a campaign district court —and Rules, speech prohibited which held that it was as applied constitutional other candidates’ non aspi- “advance[s] candidates because struck “a rations, garner[s] by way or ... votes constitutional balance” between state’s II, coattails.” appearance actuality Wolfson Moreover, F.Supp.2d although at 931-32. an impartial judiciary candidate’s recognized the district court its re- need for funds. Id. at 931. The district view was “limited to the constitutionality court all found that forms personal solic- applied itation, of the Rules in-person whether signed via sitting judges,” dates who are also mailings, id. mass сreated “the same risk of it nonetheless coercion and bias.” timely Id. Wolfson appealed. rejected] suggestion ought greater to enjoy

candidates free- II. in partisan polities dom to engage An sitting judges. asymmetrical elec- A. toral process judges is unworkable. We review de an order grant novo requires Fundamental fairness a level ing summary judgment on the constitu playing among judicial field contenders. tionality of a statute. Nunez by See Nu office Candidates must abide nez v. City San Diego, 114 F.3d imposed the same rules (9th Cir.1997). they hope to become. Id. at The district court assumed the B. validity of constitutional the Rules restrict- Wolfson seeks invalidate the chal- ing political activities as applied sitting lenged face, including Rules as to judges, holding Pickering that “the line of sitting judges campaigning for retention or [upholding government’s cases power I, however, reelection. we Wolfson employees’ political speech restrict held that “Wolfson cannot assert the con- promote efficiency integrity govern- not, rights stitutional when he is ment remains relevant to restric- services] be, never a member of that judges.” tions on the of sitting group.” Nonetheless, 616 F.3d at 1064. 4.1(A)(2)- The court concluded that Rules although reject the Arizona defendants’ (5) appropriately balanced the state’s in- argument, which the district court terest in “protecting rights the due process adopted, that the balancing applicаble test of litigants ensuring per- the real and government to employee cases speech also ceived impartiality judiciary” the applies sitting judges to fairly and thus against a in “partici- candidate’s interest judge extends to non campaign- candidates pating in political campaigns the of other office, ing for scope we must the establish upheld candidates” and the political activi- challenged our review the Rules. ties clauses as constitutional. (Rule

As for the solicitation We to the adopt clause decline district 4.1(A)(6)) a prohibiting approach court’s because reasoning candidate such from “personally soliciting] accepting] requires unnecessary a series constitu campaign Rather, contributions tional through analysis other decisions.7 our Supreme authority judges sufficiently We find no Court ex- are to similar rank-and-file tending protec- the limited First Amendment government employees appli- to warrant such public employee speech tion for to See, I, 796, e.g., cation. White U.S at 536 122 speech, and we to decline answer J., (Kennedy, concurring). S.Ct. 2528 hypothetical question the sitting whether

1152 regulation. Neither the Commis- Rules is on Wolfson’s challenged based argued Bar Counsel has sion nor the State judge non candidate. While a status compelling has state inter- Arizona judges whether not Rules apply regula- election applying est in the same for retentiоn judge actively campaigning is sitting judges as to tions to incumbent reelection, only judge to non apply sitting judges— who candidates are an for during election candidates only equal application prin- an is that such meaningful There dis- judicial office.8 is a cipled, logical, and fair. actually apply how the Rules tinction non candidates that judges judge versus limit our review Our decision scrutiny. may warrant distinct levels ultimately judge to non candidates based judge only Regulated speech non takes restraint. We need not decide above, noted campaign. As place during today judges’ what restrictions subject the highest political speech justified inter constitutionally by the protection. degree of First Amendment allowing judiciary function est in speech would Because Wolfson’s desired optimally, squarely presented nor are we “ only take in the context of place ‘antici question. with that We neither office, we do not campaign for pate question of constitutional law as applied the restrictions decide whether necessity it’ nor deciding advance of the or not— campaigning law ‘formulate rule of constitutional —whether fit into “narrow class of restric- required precise than is broader ” constitutionally permis- tions” applied.’ facts to which is to be Wash. in allowing if on an interest sible “based Grange Republican State State Wash. perform entities to governmental 442, 450, U.S. 128 Party, 552 S.Ct. (2008) Fed. functions.” Citizens United v. Elec 151 (quoting L.Ed.2d Ashwan Comm’n, der v. 56 S.Ct. tion TVA (Brandéis, J., 876, 175 concur L.Ed. L.Ed.2d 753 ring)). question constitutional persuaded that “fun areWe challenged is whether address fairness,” II, see damental Wolfson rights Rules violate First Amendment making ad F.Supp.2d at warrants of non candidates. visory decision about the constitutional speech rights pres are not who III. ently rights before us whose Wolfson A. assert, I, cannot 616 F.3d at 1064. Wolfson III.A, scrutiny, Part Under strict see scrutiny applies to this First Strict speech regulation of a must proponents challenge. regulations Amendment speaker-based compelling question establish a state interest served are content- authority Supreme White I: also find no Court extend- Court in whether protection ju- the limited First Amendment “requires campaigns Amendment First employee speech private citizen who dicial office to sound the same as those currently government employee not a but is 783, legislative office." Id. at 122 S.Ct. 2528 (“Petitioner merely to become Id. seeks one. opinion). (majority Gregory sitting judge was a Wersal not a but challenger; voluntarily he had not entered person a candi- 8. “When a becomes relationship employment into an with date, applicable this canon becomes to his State or First Amendment surrendered 17A, § Ariz.Rev.Stat. Ann. her conduct." rights. speech may His not be controlled or Conduct, Rules, 81, Code of Sup.Ct. Rule Jud. manner."). abridged a in this Nor do take 4, cmt. 2 Canon position question explicitly aon unresolved

1153 rе- speech, applied on which has a political rigorous restrictions Court less review, time, stringent place the most First Amend- standard such as ceives restrictions, manner speech, commercial protection. Republican Party ment 738, (8th expressive White, conduct. Id. v. 416 Minn. F.3d 748-49 Cir.2005) (White II); Eu see also v. San Every sister circuit except Seventh Comm., Cnty. Cent. Francisco Democratic that has considered regulations similar 223, 214, 1013, 109 103 S.Ct. applied since White I scrutiny has strict (1989) (“[T]he 271 First Amend- L.Ed.2d the standard of v. review. See Wersal urgent Sexton, (8th Cir.2012) ment has its appli- 1010, fullest most 674 F.3d 1019 — (en speech during campaign banc), denied, cation to uttered a U.S. -, cert. 133 (internal 209, quotation (2012); office.” political Carey, S.Ct. 184 L.Ed.2d 40 omitted)). 198-99; II, recently 614 F.3d at at applied marks We White 416 F.3d 749, 764-65; Bonner, scrutiny reg- another Weaver v. 309 F.3d strict state statute (11th Cir.2002). 1312, was, 1319 not ulating judicial elections because it persuaded by ap the Seventh face, Circuit’s on “on its content-based restriction proach, urge which Arizona defendants speech and political association [which] adopt by asking us to to affirm the us thereby abridge a funda- threatened] district court. right.” Cnty. Republican mental Sanders Bullock, Cent. Comm. v. F.3d 698 746 Seventh Circuit treated the solicita- (9th Cir.2012) (holding unconstitutional “campaign tion as a ban finance Siefert political judi- ban party on endorsement of regulation” applied “closely drawn candidates). cial scrutiny” Valeo, Buckley framework of v. (citing 608 F.3d 988 424 96 U.S. S.Ct. Content-based restrictiоns curiam)). (per 659 L.Ed.2d speech scrutiny. receive strict See United The court treated the solicitation like ban Inc., Playboy v. Grp., States Entm’t campaign a restriction on a contribution— S.Ct. 146 L.Ed.2d default, though by because the solicitation (2000). Here, the Rules issue ban expenditure was not an restriction. speech censor based on content in the Contrary to the Arizona defendants’ ways: They most basic of candi prevent argument, the solicitation clause at issue speaking dates from some about sub campaign is not a restriction here jects they [who endorse on whose meaning within the of Buck- contribution they speak person behalf can if that is 26-27, ley, 424 U.S. at 612. Ari- running for or if entity office nothing solicitation ban at all zona’s does ...; party] they prevent to limit contributions to a asking support candidates from date’s in amount fromor —either funds) ways (campaign some persons or groups. certain Contribution (a vote, yard signs). others restrictions, Buckley, like those at issue Wolnitzek, Carey 198-99 potential restrict contribu- (6th Cir.2010). The canons do address 21-22, tors. U.S. at 96 S.Ct. 612. The any of the “categorical pro- carve-outs” of at issue restricts the solici- Rule here speech. scribable See id. at 199. Nor are tation the contributions —the Indeed, types regulations Buckley says which the the candidate.9 limit, (“[T]his Carey, 614 9. See also F.3d at 200 contribution as in McConnell and simi- argument [that the clause akin prohibits solicitation flatly speech, cases. It nоt dona- lar subject tions, a restriction on donation (solicitation topic based on rigorous scrutiny] gives analogy to less a bad contribution) (a speaker judge or does name. solicitation clause not set 1154 solicitation, are “a because endorsements different about other

nothing at all political speech” will for contri- form outside of “core” ask of note that candidates communicative is “limited Buckley’s inappo- speech having framework thus butions. value,” make endorse- site here.10 when “speaking judges, as ments judge Considering prohibiting a rule a trading prestige on the their office making from judicial candidate endorse- Siefert, advance other ends.” 608 behalf of a speaking partisan ments 983, 984, not F.3d at 986.11 We do hold platform, candidate or the Seventh Circuit by view of endorsements non- same balancing approach” “a derived applied County, In judge candidates. Sanders determining a of cases line held that endorsements candi- speech rights government employees. types dates are no from other different F.3d As Siefert, 608 at 983-87. noted “Thus, political speech: political speech— II.B, here we consider Part including the candidates endorsement of private a citi- speech rights of Wolfson speech protect- for office—is at core yet, zen candidate —not by ed the First Amendment.” 698 F.3d never, perhaps government employee. а Similarly, by endorsements sitting a but a [i]s not “[Wolfson] also political speech pro- dates for office is challenger; voluntarily he not en- ha[s] by ‍‌​​​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‌‌‍the First Amendment. More- tected employment relationship into an with tered over, non-judge endorsements made the State or First surrendered prestige candidate cannot trade on the rights. His speech Amendment yet an office that candidate does not hold. abridged be controlled or in this manner.” I, 796, 536 122 2528 See White U.S S.Ct. share the Seventh Circuit’s (Kennedy, J., concurring). For rea- protecting litigants’ about due concerns above, we extend sons discussed decline to process rights, recognize which we as a employee-speech the rationale from the compelling court rea state interest. That scrutiny apply cases lower level soned that because “restrictions on First Amend- the restrictions on Wolfson’s may, circumstances, in some rights during campaign. ment Clause,” required by the Due Process political speech regulate The Seventh Circuit also reasoned states could even balancing by judges that a if the approach appropriate regulations was served candidate) precisely protected the kind of content- this case is a form of under — traditionally regulations Amendment.”); based warrant Schaumburg the First Vill. of omitted) (internal scrutiny.” Env’t, 620, strict citation a Better U.S. Citizens for (emphasis original)). 826, (1980) 100 S.Ct. 63 L.Ed.2d 73 ("[S]oliciting protect- funds involves interests pеrsuaded by 10. Nor are we the Commission guarantee ed Amendment's First argument prohibit- defendants' that the rules speech.”); freedom Bates v. State Bar of solicitation "do involve core Ariz., U.S. S.Ct. "[wjhen says speech,” and (1977) (observing L.Ed.2d 810 First money,’ nothing ‘give me he adds to the full protects speech "in the form of a Amendment expression fair of ideas that the First pay money”). solicitation to or contribute protects." Amendment This is content- argument wholly This without merit. pure speech based distinction of that is not excepted protec- from full First Amendment vein, this the Commission defendants See, e.g., tion. Soc. Krishna Con- Int'l argue sciousness, Lee, that endorsements have “limited com- Inc. v. ("It value” other than the desire to be municative 120 L.Ed.2d 541 political powerbroker. uncontested that the solicitation at issue in

1155 in protecting litigants’ general con- It is the practice electing state’s of process. Siefert, judges, specific judi- to due right practice stitutional of cial agree pro- campaigning, gives F.3d at that due rise im- 608 to partiality paramount, concerns are but this con- concerns because the practice cess electing of judges creates justify categorically cern does not lower motivations sitting judges for and scrutiny prospective judges of level constitutional in years election years non-election speech by judicial Applying candidates. say things to and do will enhance scrutiny, we can adequately strict assess being of chances elected. judicial regulations whether political speech narrowly tai- date’s Weaver, 1320; I, 309 F.3d at accord White to compelling lored serve the state’s inter- 792, (O’Connor, 536 122 S.Ct. 2528 protecting litigants’ process est in due (“If J., concurring) has prob- State rights. tailoring appropri- Narrow is most judicial lem impartiality, largely with it is Although scarcely imagine ate. we could brought one upon the State itself con- interest, compelling more state also practice tinuing popularly electing recognize process” that “due concerns Moreover, judges.”).13 there is an equally ether, “only arise in ... in compelling state interest in the free flow judicial proceedings.” context See Mi- during a political information campaign. Friedland, Disqualification chelle T. or “Deciding the relevance candidate Suppression: Due Process the Re- voters, right is the of the not the to sponse Speech, I, Judicial 104 Campaign State.” White 536 U.S. at 122 S.Ct. (2004).12 Colum. J., L.Rev. 613 We are (Kennedy, concurring). 2528 Whether fact mindful that we endeav- should what judicial to extent a candidate protect litigants “po- or to from even the in engage chooses activities such as process tential for due endorsing violations” making speeches on behalf I, “probability candidates, White unfairness.” See fundraising other tak- (Gins- 815-16, 536 U.S. at 122 S.Ct. 2528 in part other campaigns, added) (in- J., burg, dissenting) (emphasis asking for cоntributions is information that omitted). quotation po- ternal marks the electorate can use to decide whether probability problem tential of a qualified judicial he or she hold office. actuality that in arises real cases “The majority vast states have not, however, gener- does translate into a that elections because of belief appearance alized concern about the or government officials should accountable be reality impartial of an judiciary warranting By making their constituents. this Indeed, scrutiny. definition, choice, states, lower level are turn- Eighth ing judges politicians.” Circuit identified the flaw this into Erwin argument. Chemerinsky, on the Speech Restrictions ("The campaigned 12. “Even if a candidate State of California cannot have it both solely ways. judges, the basis of his hatred and vindic- elect If wants to its it cannot deprive tiveness Joe Smith and toward the candidate its of a elec- citizens full and robust elected, process problem were no due would tion debate.... Whether a presented Joe were involved if Smith never to make views those wishes his known on litigation proceedings or other before that during process issues the electoral is another judge.” Id. question prop- So is the whether it is matter. prob- er But are all for him do so. those Renne, Geary decision con- also lems inherent California’s See F.2d (en (Reinhardt, J., (9th 1990) banc) Cir. duct elections. If Californiа wishes con- curring), grounds, judges, free vacated on other to elect its it must allow prevail process.”). L.Ed.2d election Buckley, 424 regulations. paign Are finance Unconstitu- Candidates Judicial 612; 26-27, also Citi at 96 S.Ct. see tional, L.Rev. 736 35 Ind. 357, 130 United, at S.Ct. 876. zens 558 U.S. views on knowing a candidate’s with Along Thus, a recognize we that Arizona has issues, right a voters have legal political uncorrupt judi interest in an compelling potential judge their to know how to impartial and ciary appears that to be states wish to might To extent be.14 appear judges. before its parties who they can politicized judiciary, a avoid electing judges. so not choose to do argue for The Arizona defendants also compelling interests that we do two other B. First, persuasive. find the Commis- scrutiny, the Arizona Under strict argue that State has sion defendants “the prove to that have the burden defendants preventing in candi- compelling interest compelling challenged Rules further a (who after all be the next dates will narrowly are tailored interest and elected) on the trampling if and when United, interest. Citizens that achieve impartiality public and confi- interests First at 130 S.Ct. 876. we 558 U.S. is, essentially, argument that dence.” This Then, Arizona’s state interests. consider regu- have in compelling interest states analyze the solicitation clause we whether do not find lating speech; candidates’ (Rule 4.1(A)(6)) and the activities speech per regulating an interest in se (Rules 4.1(A)(2)-(5)) narrowly clausеs however, compelling. agree, We do tailored serve those interests. in compelling that states have interest judi- in the maintaining public confidence 1. vein, State Bar Coun- ciary. a similar Every court to is consider the compelling argues sel that Arizona has a affirmed that states have com sue has avoiding “judicial campaign in interest appearance in and ac pelling interest imperil public that threaten to con- abuses See, tuality impartial judiciary. e.g., anof integrity in of the fidence the fairness I, 775-76, 122 at S.Ct. White 536 U.S. judges.” But, explained nation’s elected meaning “impartiality” The above, any 2528. impediment public confi- against party either lack of bias for very has roots in the nature of dence its 775, 122 elections, at S.Ct. 2528. This case. in and not that definition accords with idea due participate candidates who must those I, case-specif process judges. violations arise See White elections become (O’Connor, has ic contexts. The Court also J., compelling concurring).15 have a If a candidate recognized that states to achieve a corruption engage politicking or the wishes preventing interest bench, through keeping public igno- cam- seat on the appearance corruption Dimino, See, e.g., Pay play in be constitu- R. No Atten- decisions cannot Michael Elections, tionally justified.”). That tion To Man Behind Robe: Amendment, Judges First As Politi- The cians, Pol’y L. & Rеv. Yale reality do not 15. The is that Rules ("[SJtates rejected the federal model that have "change pressures the circumstances necessarily judicial independence have ac- [prohib- the candidates want cause to make (if celebrated) cepted that some level of statements,” "[j]udicial cam- ited] accountability play part will electoral much more paign codes are therefore judges’ Accordingly, because decisions. hiding maintaining appearances about nothing ‘corrupt’ about the function- there is changing reality.” reality about Fried- democracy, limiting speech so as to land, 104 Colum. L.Rev. 612. part politics that electoral does conceal may rant fact in- impartiality. of that conceal valuable Sixth recently Circuit formation about how well invalidated similar clause in Kentucky uphold ideally impar- office of beyond one-on-one, that also extended in- tial, adjudicator. apolitical person solicitations, solicitations to group calls, telephone Carey, letters. Second, ar- the Commission defendants agree F.3d at our with sister gue that Arizona a compelling has cogent analysis court’s this issue. “[I]n- in “preventing direct methods of [such solicitation as using of- prestige dates from the of their speeches large groups signed and mass fice not potential purposes or office for mailings] present littlе or of no risk undue related to their duties.” areWe pressure or appearance quid pro the of a by not persuaded argument applied this as quo.” Id. at 205. are clauses also candidates, judge non who cannot abuse underinclusive: a personal by solicitation a of an prestige they yet the office do not campaign may committee member who be may and hold. never

the candidate’s friend profes- best or close (such sional practice associate as a law partner) is likely greater to have a risk for prohibits The solicitation clause appearance” “coercion and undue than a judicial candidate from “personally soli mailing signed request mass or during a citing] accepting] campaign or contribu speech Moreover, to a large group. through tions other than a campaign com prohibit the does not a candidate’s Code by mittee authorized Rule 4.4.” Rule campaign disclosing committee to the 4.1(A)(6).16 The “personally Code defines candidate the names of contributors and solicit” “a as direct request made solicited non-contributors. judge or a candidate for financial services, support suggests or in-kind whether made That omission that by letter, telephone, any play or other interest at the impolitic interper- means is communication.” dynamics Ariz.Rev.Stat. Ann. sonal of the candidate’s re- 17A, § Rules, Sup.Ct. Rule not quеst money, Code the more corrosive Conduct, (2009). “Terminology” Jud. reality gives who and much. If how 4.1(A)(6) hold that Rule is unconstitutional purported risk addressed applied non judge judicial candidates judge clause is that the or candidate will because it restricts presents that treat donors differently, and non-donors little to no risk of or to- corruption bias knowing it is who contributed and who litigants narrowly wards future not difference, balked that makes the tailored to serve those state interests. who asked for the contribution. sweeping lack “person- tailoring

Arizona’s definition of M17 The of narrow is obvi- ally solicit” encompasses methods like- ous if impartiality here: absence ly to impinge concern, on even the appearance corruption point what is the 4.1(A)(4) argues 4.1(A)(4) alongside (A)(2)-(3) (5), 16. Wolfson that Rule is also Rule solicitation, prohibits restriction on because he wishes because candidate from soliciting donating campaign solicit contributions to his own funds on behalf of or committee, specific organization "politi- which he to be a or candidate— considers organization.” campaigning explicitly cal classic activities. But the Code carves out candidate's “political committee from the definition lack of a non-disclosure-to-the-candi- 17A, organization.” requirement § See Ariz.Rev.Stat. Ann. presents date in Arizona’s Code Rules, Conduct, Sup.Ct. II, Rule opposite Code of Jud. situation of that Whitе Therefore, "Terminology” analyze appellants challenged they we where that fact or or- fundraising for another candidate personally ask- judges from prohibiting letters, part actively taking if signing ganization, ing for solicitations her other than his or political campaign free know who are contributes request? committee’s are not sufficient- own. These clauses also who balks “ in-person ‘ask’ is that ly narrowly Wersal teaches tailored to serve the state’s regu- must [a state] precisely are impartial judiciary, in an interest in impartiality maintain late to its politi- restrictions on thus unconstitutional impartiality” be- appearance and the speech of candidates judge cal non quid pro quo. risk greater cause of judicial office. Indeed, agree at 1029-31. F.3d 4.1(A)(2)-(4) prohibiting speechi- Rules — argument with State Bar Counsel’s endorsements, fundraising— fying, asking money, person- very “the act of question. There is present the closest impression ally, creates sufficiently argument these rules (and But for sale.” justice) be- narrowly tailored to be constitutional It sweeps broadly. more clause here speech that cause curtail evidences necessary today a “to decide whether (potential) party a particular bias towards narrowly a tailored solic- State could enact scope I: the candidate within the of White one-on- say, itation one focused on clause— political organization spo- endorsed or or from indi- one or solicitations solicitations the favorably by judicial ken of candidate. pending before the

viduals with cases Circuit, Eighth sitting en plurality A the only this clause does not do so that court— banc, nearly a Minnesota upheld identical (em- at Carey, 614 F.3d narrowly.” or prohibition judge on a candidate in The solicitation phasis original).18 endorsing public for “another candidate to non applied clause is invalid as an “cre- office” because such endorsement candidates. towards the en- partiality ates a risk 3. party supporters.” his or her dorsed Wersal, plu- 1025. The F.3d 4.1(A)(2)-(5) analyze Rules rality clause nar- concluded that the was clauses. Judicial “political the activities” rowly compel- tailored to serve the state’s prohibited speechify candidates are appearance reality in ling interest or ing organization, for another candidate candidate, an Id. at 1028.19 endorsing impartial judiciary. or another opposing prohibited group large groups or Judicial Conduct solicitation could not solicit from via sign- signed Eighth appeal letters. The Circuit banned candidates from appeal disclosing Id. at Direct prohibition that the to a fund letters. 1029. found personal "gives greater rise candidate who contributed and who rebuffed solicitation id., quid pro quo,” scope "barely was at all risk of but meant the clause tailored impartiality parties end as to in a Arizona’s solicitation clause is broader [the serve “open- particular and we must consider all of the or an interest in Minnesota’s case]” speech. 416 F.3d at 765-66. affected mindedness.” Wollman, Loken, Indeed, Judge Judge joined by Eighth upheld Circuit agreed in result with the clause even concurred Minnesota solicitation under plurality's judgment separate ground scrutiny precisely chal- on the strict because the direct, only prohibited in-per- served the dis- lenged clause the endorsement clause solicitation, compelling "protecting tinct rest of state interest son while the Minnesota's judiciary.” independence its permitted Code of Judicial Conduct solicita- ("An judi- groups judge's Id. endorsement links the and of a intimates. at 1033 tion of Wersal, particu- cial court dis- candidate’s fortunes 674 F.3d at 1028-29. That II, person, may office lar who then come hold tinguished the outcome from in White government. This Code coordinate branch of where an earlier version the state’s Nonetheless, regula- we hold that “woefully these underinclusive” because they they only tions are underinclusive because address made after candi occurs beginning address date filed has his intention to enter the day a non judge after candidate has filed 780, 122 race. Contrary S.Ct. 2528. his intention to run office.20 dissent, to the we fail to why see this same day before a private citizen becomes a concern apply does not here. candidate, he she could have Moreover, the Arizona defendants major been a or campaign fundraiser man- why have failed show the less restric official, ager may for another elected remedy tive of a recusal successful ‍‌​​​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‌‌‍can large money have donated sums of an- didate from case which he or she political campaign, may other’s have was party’s political involved cam himself an politician. been elected paign or gave an endorsement un Supreme Court confronted similar un- “[Bjecause workable alternative. restrict There, issue in White I. derinclusive ing speech should the government’s why explaining the “announce clause” was resort, tool of last availability of obvi underinclusive, the Court said ous less-restrictive alternatives renders a Minnesota, speech restriction overinelusive.” Valle may not “I say office think it is constitu- Del Whiting, Sol Inc. v. legislature prohibit tional (9th Cir.2013). Here, it seems that if a marriages.” say same-sex He candidate indeed a judge, becomes a less however, very thing, same until up restrictive means of addressing the state’s day very he before declares himself a concerns would require be to recusal in candidate, may say repeatedly and cases where the judge’s against new bias (until litigation is pending) after he is or in favor of a party clear.21 Unlike As a pursuing elected. means of thе the plurality Eighth dissent and the objective of the open-mindedness that re- articulate, Wersal, spondents Circuit in now the we decline to announce address woefully is so clause underinclusive as hypothetical to involving potential situations belief in purpose render that a challenge frequent litigants single-judge and coun to the credulous. 1168; Wersal, ties. See Dissent at 674 I, 779-80, F.3d at (posing hypothetical White 536 122 1027-28 too, (A)(2)-(4) 2528. Here Rules 4.1 are that “candidates and would be free any together is antithetical to well considered notion of the two clauses read that meant a judicial independence- 'govern- judicial prevented a are candidate was from mak- —that laws, (Loken, J., ”) ing any ment of not men.' party about biased statement a or concurring.). potential party, target whether or not the public had become candidate for office at time We plurality Wersal of the statement. concluded that temporal about concerned dimension of a Minnesota endorsement clause was not un- speech, non-judge candidate’s rather than the derinclusive but to reference what it target. candidate status of its restricted: "endorsements for other candi- (inter- public date[s] for office.” Id. at 1027 See, omitted) Friedland, quotation (emphasis nal e.g., marks add- 104 Colum. L.Rev. at ed). ("[T]he plurality separate proper judicial That noted response that 614 cam- paign speech clause in Minnesota’s Code of Judicial Con- that could threaten Fourteenth prevented may duct process rights candidate due Amendment be to then, making any from statement that would “rea- allow the and if a arises in case sonably expected judge’s campaign speech to affect the outcome or which the former impair pending poses problem, assign fairness of matter that case to anoth- court,” impending any in judge.”). and reasoned that er 1160 remand the case further become dates. We who would

to endorse individuals opinion. proceedings with this cases, consistent such as future frequent litigants prosecutors”). county sheriffs REMANDED. REVERSED have offered defendants Arizona BERZON, Judge, concurring: Circuit these concerns argued nor evidence exist, though Siefert, judging Sitting election while cf. demonstrating the burden bear cases, famously quipped, Kaus Justice Otto scrutiny. strict We Rules survive your in the “brushing is like teeth bath- such a whether speculate decline to the crocodile trying room and notice in the Arizona problem would exist Grodin, Joseph in the bathtub.” R. by these Rules. elections affected Pursuit Justice: State Reflections of (1989) (quoting 177 Supreme Court Justice 4.1(A)(5), which hold Rule Kaus). Kaus would know. He sat on from “active prohibits a California Court campaign ly tak[ing] part any political McLaughlin, T. Memorial Gerald or her own other than his Kaus, Loy. L.A. Dedication to Otto reelection, election, in office” retention (1997), hаving narrowly L.Rev. because it is over- to be unconstitutional a retention election retir- won terms, By its it is not limited broad. from the court soon before participation restrictions on of his former vote that would unseat three persons who campaigns on behalf Barnett, colleagues, Stephen R. Otto suit, may also in parties become Court, Loy. L.A. 947 & L.Rev. proposi on ballot political campaigns clude (1997).1 n.19 issues, including political tions other point psychology Kaus’ about propositions for ballot campaigns judi- the context of judging applies outside no fu present impartiality risk of towards elections, temptation engage cial for the 4.1(A)(5) Thus, ture parties. Rule uncon behavior affects overt stitutionally protected speech prohibits generally. separately And so I write to I, legal about issues. White tame, identify, hopefully to the “croco- 776-78,122 S.Ct. 2528. today’s the stalking majority opinion: dile” principles apply that the now prospect

IV. litigation to chal- will be used future reasons, these the dis- constitutionality For we reverse restrictions lenge the of summary grant judgment sitting trict court’s of to of political judges. on the behavior the hold that studiously designedly— Arizona defendants. We opinion —and the But scrutiny applies strict chal- not address that issue. does view, lenged explaining my of the portions why, the Arizona Code of worth the unconstitutionally pertinent evaluating restrict to Judicial conduct сonsiderations by judge judicial complex the non of constitutional issues raised speech of 16(d); Judges § § Elec.Code 1. Justices of the California Court Cal. Superior usually Judges Appeal the the California Court sit Const, California Court Governor, years, general every Cal. confirmed election six are nominated 16(b), § Appointments, art. unless an incumbent the Commission Judicial § approval unopposed, or a coun- subject to in a reten- Cal. Elec.Code and then voter guberna- ty adopts by majority popular vote the reten- tion election at time of next thereafter, and, system applicable appellate torial election end of tion-election Const, 12-year judges, § Cal. Cal. Elec.Code 8220. each term. See art. quite ly are different relates to candidate’s own restrictions such applies today. pro- for office.2 The remainder majority opinion those judge’s hibit would-be efforts advance I. political fortunes of other candidates or causes, endorsements, through speeches, the constitu- Today’s opinion addresses fundraising, support, financial or other the Ari- tionality provisions of certain (“Code”) campaign proscrip- assistance.3 As these zona of Judicial Conduct Code little tions bear direct relation to they apply judicial candidates only as fortunes, personal candidates’ political who, Wolfson, yet like have not ascеnded might forgiven casual reader for assum- to the bench. It does not decide those just constitutionally as constitutionality they apply provisions’ applied offensive as outside election who, Kaus, judges like have to elected context, sitting judges, whether or not already taken their oaths of office. Still they reached the bench via election. constitutionality does it decide the less political activity restrictions on the view, so, my In that is not for at least who, bench, like us on the federal analytic ap- two reasons: The framework during good “hold their Behavi- Offices plicable sitting restrictions Const, Ill, our,” § art. and never judges may well differ from the one we In prudence sit for election. the name of today. apply compelling And the state avoidance, majority’s and constitutional justify interest that could such restric- well opinion rightly judgment reserves on the emphasized tions differs from the one constitutionality restricting majority opinion. I each dif- address sitting judges, properly an issue neither ference turn. necessary nor to the resolution before us II. of this case. today’s scrutiny emphasize scope applying

I the limited strict litigants might judge, today’s fear that future candidate who is not now a decision for it, despite majority opinion rightly rejects seek to the Sev- otherwise obscure opinion. approach, applies in the enth which repeated admonishments Circuit’s sitting provisions the five Code we strike to- restrictions on elected Of balancing derived from the day, one—the solicitation ban-—direct- test (3) provision publicly oppose can- 2. The full text of the is as follows: endorse or another office; (A) any public didate for A shall pay funds an assessment to not.... solicit (6) candidate, accept campaign personally solicit or political organization make or through a cam- contributions other any political candidate or contributions paign authorized Rule committee organization per- in excess of the amounts 4.4.... law, mitted or make total contributions 17A, Rules, Sup.Ct. § Ariz.Rev.Stat. Ann. fifty percent cumulative in excess of of the 81, (2009), Rule Code of Jud. Conduct Rule permitted by total law.... 4.1(A)(6). any political actively part take cam- paign other than his or her own provision as follows: 3. The full text of election, or retention in of- reelection (A) A or candidate shall not ____ fice following: do of the 17A, Rules, Sup.Ct. § Ann. Ariz.Rev.Stat. 81, (2009), Rule (2)make Rule Code of Jud. Conduct speeches political on behalf of 4.1(A)(2)-(5). organization pub- or another candidate for office; lic 1684, (1983), could be ex- employee 75 L.Ed.2d 708 public cases on Supreme Court’s Shepard, general speech tended to allow a restric- Bauer v. speech. Alexander, (7th Cir.2010); v. sitting judges regardless tion on Siefert — Cir.2010). (7th Although such F.3d 974 order campaigning whether —in application no standard has tempered the efficiеnt administration of promote yet his oath has not taken candidate who an raised here.” justice, is not issue office, ap- it whether would be White, 122 S.Ct. 2528 536 U.S. political applied to restrictions propriately J., (Kennedy, concurring). a differ- sitting judges quite governing Siefert, 608 F.3d at the Seventh ent manner. public employee Circuit extended the govern permits The Constitution provision cases to a of the Wiscon- employees speak from prohibit ment to its prohibiting of Judicial Conduct sin Code public matters of concern where ing about “[p]ublicly sitting judge an elected from promoting “in government’s behalf of endorsing] speak[ing] [a or per it efficiency public of the services platforms,” candidates or political party’s] through employees” outweighs its forms gov- id. at 978-79. It reasoned speech. the First Amendment interest authority employer, as an “its ernment’s Twp. High Pickering v. Bd. Educ. efficiency of duty promote public Ill., Cnty., Dist. Will 391 U.S. Sch. imperative performs,” services 563, 568, 1731, 20 L.Ed.2d 811 88 S.Ct. judiciary that “the of the conform[ ] work (1968). Pickering balancing test of the process requirements with the due promote “both to the individual and seeks justified rigorous a less bal- Constitution” interests that are served when em societal ancing test for restrictions on elected sit- ployees speak as citizens on matters of ting judges’ participation political in the respect concern and to the needs of public of others. Id. at campaigns candidacies per government employers attempting decision, subsequent In a the Sev- important public form their functions.” balancing extended this test enth Circuit Ceballos, 410, 420, 126 Garcetti v. 547 U.S. provisions of the Indiana Code of Judi- (2006). 1951, 164 And S.Ct. L.Ed.2d 689 prohibiting cial Conduct elected recognizes that are certain that test “there holding leading office governmental oper functions that cannot organizations making speeches on be- particular ate without some restrictions on Bauer, 620 organizations. half of such speech.” kinds of Citizens United v. Fed. F.3d at 710-11. Comm’n,

Election 558 U.S. 876, 175 L.Ed.2d 753 S.Ct. public employ- The core rationale of the cases, on ee which Siefert Republican Party Minnesota relied, apply Bauer does not to the case White, presently before us. has never Wolfson (2002), L.Ed.2d 694 did not decide whether Arizona, employee let alone a been public employee speech cases would Indeed, judge. he never become justify judges’ active sup restrictions public employee speech one. While port causes or the candidacies solely now-antiq- not rest on the cases do Kennedy, of others. Justice who was a principle government uated that the can justice majority, member of the five wrote of employment condition on waiver concurrence, separate explaining this rights, Myers, Amendment see 461 limitation: First of “Whether the rationale Pick 143-44, 1684, 563, 1731], 103 the nature [, U.S. at S.Ct. ering 391 U.S. 88 S.Ct. 138, necessary government employment is a Myers, Connick v. 461 U.S. 103 S.Ct.

1163 III. Pickering reasoning. of their component much, commenting that “it recognized as if we Even determined that restrictions that the has in- gainsaid cannot be State political activity sitting judges on the in employer regulating terests as subject scrutiny, were to strict the state signifi- that differ speech employees of its supporting interest such a restriction cantly possesses from those it connec- far stronger would be' than the one we hold regulation speech of the of the tion with justify inadequate to the restrictions on 568, 88 citizenry general.” 391 U.S. judicial speech today. candidate Wolfson’s public employee speech The S.Ct. 1731. The Supreme recognized Court has as a recognize the “crucial differ- cases thus “vital state in main interest” the interest ence, analy- to constitutional respect with taining “safeguard^] against judicial those sis, exercising government between the imperil abuses that threaten to license, regulate as law- power ‘the public integ the fairness and confidence maker,’ government acting ‘as rity of the judges.” nation’s elected Ca internal proprietor, manage opera- [its] Co., perton Massey v. A.T. Coal 556 U.S. ” Engquist Dep’t Agric., tion.’ v. Or. 553 868, 889, 2252, 129 S.Ct. 173 L.Ed.2d 1208 591, 598, 2146, 128 S.Ct. 170 L.Ed.2d U.S. (2009) added) (internal (emphasis quota (2008) (alteration original) (quoting 975 omitted). tion marks and citation Preserv McElroy, Rest. v. & Workers Cafeteria ing public maintaining confidence includes 886, 896, 1743, 367 U.S. S.Ct. perception judicial propriety. (1961)). Critically, the L.Ed.2d 1230 bal “ words, ‘justice satisfy ap other must ancing Pickering test line of cases ‍‌​​​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‌‌‍” Murchison, justice.’ pearance of In re apply governmental articulates does not 133, 136, 623, 349 U.S. 99 L.Ed. those, restrictions on the like (1955) States, (quoting v. United Offutt candidates, judicial employed by 348 U.S. 75 S.Ct. 99 L.Ed. 11 government. We could not abandon that (1954)). appearance of evenhanded “[T]he danger determinative distinction without justice ... process.” is at the core of due ously expanding scope of constitution Mayberry Pennsylvania, ally permissible regulation speech. 91 S.Ct. 27 L.Ed.2d 532 apply But our refusal to (Harlan, J., concurring). yet a employee candidate not state bal- majority opinion, taking its cue ancing public test derived from the em- Court cases on elec- ployee speech says nothing cases whatever tions, scrutiny analysis focuses its strict applicability about the a test such actuality in preserving the interest already individuals who have taken their appearance impartiality. already oaths of office and receive emphasis impartiality case law’s derives That wages question from the state. re- imposed by from the the due obligations Resolving mains unanswered. the First clause, process particularly proposi- “the challenge sitting judge Amendment of a impartial judge tion that an is essential to similar restrictions on his will re- White, process.” due And, quire answering prejudg- it. without compelling S.Ct. 2528. This adopt whether we should the Siefert appearance impartiality preserving analysis political activity for restrictions on weighty weighty, narrow: be- is both by sitting judges on behalf of others, of a constitutional I cause rises to the level sug- causes or the candidacies of obligation, requiring to recuse gest analogy Pickering that the line in the name particular much to commend it. himself from a case of cases has ments.”). perceived legiti- 556 U.S. at 886- It is the courts’ Caperton, of process, due narrow, 87, 2252; macy because it in grounded and as institutions estab- 129 S.Ct. against legal principles, partisanship, to “lack of bias for lished refers White, 536 party proceeding,” obeyed to the “that either leads decisions to be and 775-76, 122 (emphasis Bauer, in S.Ct. 2528 vigilantism averts and civil strife.” this narrow focus on the original). Given legitima- 620 F.3d at 712. Loss of in law, an parties appearing cy before rule of “sap[ping] thus corrodes the the less-restrictive rem proceeding, actual the of public private foundations confi- edy mandatory dence, of recusal is available to a ... in introducing] its stead must, seeking protect, as it the state universal distrust distress.” The Fed- appearing process rights litigants sense, due of eralist No. at 438. In this “[t]he law, its courts. rule of which a foundation of free- dom, presupposes functioning judiciary I interest in But would define the state’s independence, respected profes- its its preserving public judicia- confidence in its attainments, probi- sional and thе absolute beyond ry broadly, reaching more as the ty NY judges.” of its State Bd. Elections of specific litigants particular process due Torres, 196, 212, Lopez Maintaining public ju- in the cases. trust (2008) (Kenne- S.Ct. 169 L.Ed.2d 665 diciary by legal institution driven J., dy, concurring). principles rather than concerns is imperative. a structural The rule of law political history This nation’s demon- depends upon it. strates the disastrous of per- effects ceived of politicization courts. importance

The fundamental of this Charges King George obstruct- “ha[d] imperative recognized structural has been ed the Administration of Justice” and founding from the of the nation. As Alex- judges dependent made “ha[d] his Will emphasized ander Hamilton The Feder- “ among alone .... the founding gen- were 78, the possess alist No. courts “neither justifications eration’s for the 1776 revolu- WILL, merely judg- FORCE nor tion. The Independence Declaration (Clinton ed., ...” ment. Rossiter (U.S.1776). para. 11 ap- Similar concerns 1961). Deprived those alternative ply monarchy: outside the context of a power, judi- authority sources of the judiciary po- Where the is drawn into the ciary ... legitimacy, instead “lies its branches, intrigues litical its coordinate product perception of substance and public might pesti- well “fear that the people’s acceptance shows itself may poison lential breath of faction Judiciary as fit to determine what the justice. being fountains of The habit of ... law means declare what continually marshaled on opposite sides demands.” Planned Parenthood Se. apt will be too to stifle the Pa. v. voice both of Casey, 505 U.S. (1992); equity.” law and of 120 L.Ed.2d Federalist No. see also (Alexander Hamilton) (Clinton White, at 452 536 U.S. at Ros- S.Ct. 2528 (“The 1961).4 J., ed., (Kennedy, siter And concurring) power politiciza- where the rest, prerogative judiciary brings of a court ... in the tion of the it into alliance end, upon respect judg- politicians accorded its with the who staff the other two quotation appears explanation dangers perceived partisan- 4. This in an 451. But the why "composed ship apply judges indepen- Court is of a at least as much to body magistrates, being dently participating publicly distinct instead of chosen but in the legislature, legislative policies one of the branches of the as in selection of or executive government of Great Britain....” Id. at and decisionmakers. Wersal, may In in public Judge the no his concurrence Lo- government, branches of justice ... “the courts of longer “compelling consider ken concluded that there is a of a limited Constitution as the bulwark protecting political state interest ... in the encroachments,” legislative The against independence judiciary.” of its or executive Federalist No. I juncture have no reason at this short, sitting judges when excesses. Instead, I question. come to rest on that nonjudicial can- support campaigns the that, least, emphаsize very at the there is endorsements, speeches, mon- didates —via interest in powerful preventing state sit- ey, public begin other means—the ting judges playing part from of politi- neutral arbiters of a to see them as powerbroker creating cal and the publicly system governance, par- but as limited interdependence visible that corrodes con- ticipants larger game politics.5 in the judicial autonomy. Assessing fidence in express precisely defendants here qualifies “compel- whether that interest as sitting judges may if this concern—that in ling,” the lexicon of First Amendment others, pub- support campaigns doctrine, properly presented awaits a perceive lic will them as masters of the particularly as the issue never will case— game, powerbrokers “trading on political arise if we determine that the first Picker- prestige of their office to advance oth- test, ing balancing rather than strict scru- ” political Siefert, ends.... 608 F.3d at er tiny, applies restrictions on sit- 984; see also Model Code Judicial Con- ting judges. 4.1, (justifying prohi- duct R. cmt.4 certainly, Almost a state does not forfeit speeches bitions on endorsements judicial in powerful autonomy this of other as “preventing behalf candidates by selecting popular via its election. judges] abusing the sitting prestige from prohibition It was the context of a state office to advance the interests of against expressing candidates others”). equally jus- opposite fear personal disputed legal politi- views on Today’s powerbroker tified: is tomorrow’s during campaigns cal issues their own pawn, political as the winds shift and the explained Court has cycle approaches. next election The en- “ greater power dispense ‘the with elec- dorsing judge entwines his fate with altogether does not include the lesser tions he endorses and earns the en- whomever to conduct elections under condi- power mity politician’s opponents. of his favored voter If state-imposed ignorance. tions of personal “This kind of affiliation between a energy tap the State chooses to judiciary member of the and member of legitimizing power of the democratic specter— branches raises the process, participants it must accord the readily general perceived public— process ... the First Amendment judge’s rulings that the future will be influ- ” White, rights that attach to their roles.’ political dependency.” this enced Wer (alteration (8th 536 U.S. at 122 S.Ct. 2528 Sexton, sal v. Cir.2012) Geary, (Loken, J., original) (quoting Renne concurring in the 115 L.Ed.2d judgment) (emphasis original). singularly sitting judges may didate effective mode of voter I leave aside whether judi- qualified support New observers are as endorse or other candidates for education. competencies support implicate sitting judges to evaluate the cial office. Such does not join The con- powerful appearance in the those who would their ranks. state interest analyses concurring opinion independence cerns and in this Moreover, judicial participation are therefore limited to branches I discuss in the text. issue, legislative, executive elections. sitting judge’s can- endorsement of (1991) (Marshall, J., But dissenting)). process” avoiding while worrisome interde- not seem to extend that observation does pendence politicians between campaigning on behalf prohibitions remaining from the two branches. nonjudicial or for of issue elections forget Nor should we that our own fed- Supreme dates. The Court’s case law on supplements eral scheme its structural government em- political behavior protections judicial autonomy with di- “carefully distinguished] be- ployees has prohibitions politicking. rect Structur- partisan political ac- [proscribable] tween ally, judges our Constitution endows with views,” expressions and mere tivities constitutionally protected. prohibits Bil life tenure and the diminution of which Const, Bd., Sys. ler v. Merit Prot. Ill, U.S. § their salaries. art. 1. U.S. (2d Cir.1988) 1079, (citing U.S. Civil protections encourage Such seek to “that v. Nat’l Ass’n Letter Car Serv. Comm’n independent spirit judges in the which riers, AFL-CIO, 548, 554-56, perform- must be essential to the faithful (1973), 2880, 37 L.Ed.2d 796 duty,” ance of so arduous a The Federalist Mitchell, United Pub. Workers Am. v. No. help “preserve[] 98-99, 67 S.Ct. 91 L.Ed. independence Judiciary,” of the Federal (1947)); 984; Siefert, 608 F.3d at see White, 795, 122 536 U.S. at S.Ct. 2528 United, also Citizеns 558 U.S. at J., (Kennedy, concurring). In addition to (citing support S.Ct. 876 Letter in Carriers safeguards ju- those structural the federal proposition Court diciary adopted has a code of ethics that “upheld has often narrow class of directly regulates the behavior of federal operate restrictions that to the disadvan judges, including support- restrictions on tage persons, of certain ... on an based ing political causes and candidacies of in allowing governmental entities others.7 ethical independent Our code is functions”).6 Indeed, perform their pro of the structural safeguards that insulate on supporting campaigns hibitions branches, political per- us from the and it complement, contradict, others rather slightly forms a different function. I see the decision to select via popular why no adopt reason a state cannot By adopting election: such restrictions other, elections, except regard one without the with alongside judicial states harness power the “legitimizing judicial of the democratic personal campaign candidate’s (2) judge's support speeches 6. It is true that an elected political organiza- make for a candidate, signals something another candidate or cause publicly tion or or endorse a views, office; might marginally about his which public candidate for or assessing options for, to, useful to voters their at the pay solicit funds an assessment (Rov- polls. Siefert, See 608 F.3d at 994-95 political organi- amake contribution to a ner, J., ("We are, all, dissenting) candidate, after often purchase zation or attend or judged by company keep.”). But so sponsored ticket for a dinner or other event long judge may as an elected articulate his political organization or candidate. personal legal political views of in issues (B) judge resign judicial A should office support campaign, of his own attentive voters judge primary if a becomes have a far more direct means with which to general any election for office. opinion competing judicial form an about (C) judge engage any A should not other candidates. political activity. provision This does not prevent judge engaging in activities provides: The full text of the relevant canon described Canon (A)A Courts, Administrative Office of U.S. should not: Code of (1)act any Judges, as a leader or hold office in a Judicial Conduct United States organization; Canon 5 yet in states have not sat on the lack office where bench record, making elections are held. such their cam- speech including paign endorsements— — preserv- Critically, the state interest relatively more valuable for what it reveals judiciary powerful an autonomous they might perform about how in office. judges; applies sitting insofar as it application no candidates it has who, Wоlfson, yet like have not reached sum, principles applicable spectacle sitting judges the bench. constitutionality of political restrictions on aiding partisan allies sitting diverge dramatically from repute of the struggles public corrodes the apply today’s challenge those we way participation in a that the

judiciary judicial restrictions on candidate not now Indeed, can. a mere never judge. may The standard of review well judiciary independent in an does powerful sup- differ. And the interests not come into existence until as- differ, I porting such restrictions too. need office; politicking lay people sumes address, us, not as the issue is not before damage reputation body cannot of a particular whether the restrictions re-we they yet joined. ranks whose have today as ap- view would be constitutional who run for office Individuals I am plied sitting judges. quite But political parties be officers of themselves analysis required sure that the to resolve nonjudicial political or holders of office question support that will receive scant judgeship. when decide to for a run from our decision in this case. politicians That can become is no allowing secret. But that is different from TALLMAN, Judge, dissenting Circuit politicians to remain or become part: Moreover, while still on the bench. as the agree majority I with the that strict majority layman opinion explains, a whо scrutiny appropriate —not Seifert —is yet prestige no has assumed office has agree I that should limit standard. our yet derived from the office he has not decision to non-incumbent attained to lend his brethren. Es- 4.1(a)(5) And I that Rules agree dates. sentially, ascending to the bench is like others) 4.1(a)(6) (campaigning (per- veil, taking the and that does not veil solicitation) sonal are unconstitutional as until descend the oath of office is «sworn. I applied to those candidates. concur Meanwhile, sought to the extent White majority only points. on those opinion in- preserve voters’ access to “relevant part my colleagues I with as to company to prevent “state-imposed formation” and 4.1(a)(2) (giving speeches Rules on behalf ignorance” voter about the candidates sit- (4) others), others), (endorsing election, ting for others). money for These three (soliciting (internal quotation S.Ct. 2528 marks omit- they are rules are constitutional because ted), already concerns are such weaker narrowly tailored to serve the state’s com- judges already pos- judges. seated Such maintaining judicial im- pelling interest a record of that interested sess decisions appearance' hall- partiality and its —the analyze can to inform themselves voters government’s mark of third branch. desirability competing about the acknowledge that these My colleagues candidates; White, they under arе free “present question,” the closest three rules campaign for their own reelection draw- upheld similar Eighth and that the Circuit ing attention to their records on the bench. Wersal, contrast, at 1024-25. By lay people, Wolfson, who like ones. Nonetheless, majority attorney lawyer. the district is its concludes Con- narrowly two no they are not tailored for stant recusal is solution. timing timing and recusal. The reasons: Eighth That’s what the Circuit held the rules are underinclu- argument is that Wersal, after considered this obvious “they sive because address problem. 674 ma- F.3d 1027-28. The beginning day after a non that occurs jority, hand, recognizes on the other has filed his intention to judge candidate it, problem, sidesteps claiming but then argu- run for office.” The recusal the state failed to raise it and that ment is that the rules are more restrictive dealing require specu- with it us to would recusal, i.e., requiring judges who I disagree. spec- late. There’s no need to campaigned have others recuse something ulate about so self-evident. when up themselves those others show failing And it’s hard to fault the state for I dissent I not find litigants. because do to dwell on the obvious. persuasive. reasons these sum, I buy timing don’t or recu- majority’s timing argument is clever them, arguments. sal And without there’s impractical. sug- Its breadth alone nothing prevents declaring us from gests argument this. The cut down would these three rules are the least re- (a) subject restriction to strict disposal strictive means Arizona’s (b) sсrutiny and that starts to apply furthering compelling people only triggering after some event. maintaining impartiality and its If the restriction’s enactment counts as appearance. Simply affixing the label of event, why and I triggering don’t see it scrutiny declaring strict and then that un- wouldn’t, scrutiny always then strict would specified less restrictive means are re- be fatal. That cannot be law. quired gives guidance no to what rules Moreover, argument actually doesn’t pass constitutional muster. And it en- question, which is whether answer courages an free-for-all that un- elective ways there are less to preserve restrictive respect dermines for the third branch of impartiality appearance. and its government. my colleagues Because dis- is, course, Having no rules less restric- agree, respectfully I dissent. But it an tive. isn’t alternative means of

furthering Any the interest at stake here.

actual alternative will suffer from the tim- ing problem majority identifies. So timing argument nothing tells us about restrictive; which alternative is the least DAVIS, Plaintiff-Appellant, Charles only a problem identifies that all conceiva- ble alternatives share. 500; UNIFIED SCHOOL DISTRICT majority’s argument, recusal like Vaughn, Stephen Defendants- timing argument, is too impractical ' Appellees. Arizona, my only very view. small judges. counties elect And some small No. 13-3224. superior counties well have one Appeals, United States Court of judge. court If that judge campaigns one Tenth Circuit.

for someone who is then elected sheriff or 5,May attorney, district outside would ‍‌​​​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‌‌‍necessary every criminal case and in involving county all civil cases where

Case Details

Case Name: Randolph Wolfson v. Colleen Concannon

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 9, 2014

Citation: 750 F.3d 1145

Docket Number: 11-17634

Court Abbreviation: 9th Cir.