Randolph Wolfson v. Colleen Concannon

operations, substantively boat but sentence was un- uments and directed Guidelines journey stops repairs, involved several reasonable. fuel, stop stop and a to ask directions passing freighter, by

from a diffi- followed CONCLUSION Jamaica). culty locating As with our sister reasons, judgment For foregoing circuits, apply require- we “rigid decline to of the district court is AFFIRMED. professionalism” to “pilot/cap- ments of opt tain” enhancement and instead approach.”

“common sense Bawtista-

Montelongo, 618 F.3d at 467. find no application

We error “pilot/captain” enhancement By

facts of case. Cruz-Mendez’s own account, lifelong he was a fisherman hired Randolph WOLFSON, Plaintiff- bales, marijuana and in transport so Appellant, doing operated boat he laden with sub- cargo open stantial water controlling speed both its and direction.3 Such con- CONCANNON; Colleen Frank Louis justifies duct fully imposition of the Dominguez; Eckerstrom; Peter J. two-point enhancement. United States George Foster; Aragon, H. Gustavo Cf. (11th v. Cartwright, 413 F.3d Jr.; Roger Barton; Hinshaw; S’ Lee Cir.2005) (upholding application of the en- Stevens; Tyrell Taber; David J. Law- hancement where a lifelong defendant was Winthrop, rence F. in their official fisherman who was one of men several who capacities as members of the Arizona boat). drove the Conduct; Commission on Judicial Mary Glaab; Vessella, Anna Maret B. Reasonableness the Sentence Bar Chief Bar of Counsel State Arizona, Defendants-Appellees. imposition district court’s the twelve-month sentence for violation of No. 11-17634. supervised release consecutive to the United States of Appeals, Court eighty-month possession sentence for Ninth Circuit. vessel, marijuana on a resulting global in a ninety-two months, sentence of was not an Argued and Submitted En abuse of discretion. See Autery, 555 F.3d Banc Sept. 2015. fact, at 871. In the district court exercised Decided Jan. its discretion in departing downward “just range, by many Guidelines as months as requested.” [the defendant] Ayalar-Nicanor,

United States v. (9th Cir.2011).

744, 752 Under these cir

cumstances, say we cannot below- highlights (upholding While Cruz-Mendez application that he had 466-67 of enhance- codefendant, authority no over who, alia, his he does ment to career fisherman inter did argue any that his co-defendant had au- navigational not use tools and no had crew thority pan- over him while were co-conspirator). other than ga. Bautista-Montelongo, See F.3d

Randolph Grass, Sherman and Robert LLP, Kaye York, York; Scholer New New Richard F. Ziegler and O. Spiegel, Justin Block, York, York; Jenner and New New Matthew -Bannon, Menendez and L. Alicia York, York; New New Gorenberg, Hayley York, York; New New and J. Gerald He- McAllen, and Megan bert P. Washington, D.C., for Amicus Curiae Brennan Center Law, for Justice at School NYU Arizona Association, Judges’ American Judicature Stake, Society, Justice at Campaign Legal Center, Legal and Lambda Defense. Robert Ferguson, Attorney General, W. and Alan D. Copsey, Deputy Solicitor Gen- eral, Olympia, Washington, for Amicus Cu- Hawai’i, riae States Washington, Oregon. THOMAS, Before: R. SIDNEY Chief (argued) Anita Y. Milanovich and James Judge, and DIARMUID F. Jr.,

Bopp, Law-Firm, The Bopp Terre O’SCANNLAIN, GRABER, SUSAN P. IN, Haute, Plaintiff-Appellant. for FLETCHER, A. WILLIAM RONALD M. GOULD, BERZON, MARSHA S. (argued), Paula S. Bickett Chief Coun- TALLMAN, sel, RICHARD C. JOHNNIE B. Appeals; Civil Thomas C. Horne and RAWLINSON, CONSUELO Brnovich, M. AZ, General; Mark Attorneys CALLAHAN, CHRISTEN, MORGAN Grube, Counsel, Agency Charles Senior HURWITZ, and ANDREW D. Circuit AZ, Tempe, for Defendants-Appellees Judges. Commission Members. Kimberly A. Demarchi and R. Peter Opinion by GOULD; Judge

Wand, LLP, Phoenix, AZ, Lewis and Roca by Judge Concurrence BERZON. for Defendant-Appellee Maret Vessella. OPINION

Igor Timofeyev, LLP, Paul Hastings V. GOULD, D.C.; Washington, Abele, Judge: Circuit George W. Paul LLP, CA; Hastings Angeles, Los George Plaintiff-Appellant Randolph Wolfson, Patton, Jr., T. McKinney Bose & Evans an Arizona state LLP, D.C.; Washington, Karl J. Sand- challenges provisions several strom, LLP, Perkins Washington, Coie the Arizona Code of Judicial reg Conduct D.C.; Kaul, LLP, Joshua L. Perkins Coie ulating judicial campaigns. Specifically, Madison, Wisconsin, for (1) Amicus Curiae challenges: Wolfson the Personal Solic Conference Chief Clause, (2) Justices. 4.1(A)(6)1; itation Rule the En 1. "A or a personally candidate shall not accept campaign solicit con- (4)2 was Clauses, 4.1(A)(2),(3), scrutiny court held that strict district Rule dorsement Prohibition, adopted and instead (3) inappropriate, Rule ; Campaign approach applying an Circuit’s 4.1(A)(5)3. Seventh do not Together, the clauses scrutiny level of to assess intermediate Wolfson, running for while allow like Ari- judicial campaign regulations his office, personally solicit funds (citing zona’s Rules. Id. 929-30 for a anoth campaign or own Siefert (7th Alexander, 983-88 organization, to candidate or er Cir.2010) Shepard, F.3d Bauer v. endorse another candidate publicly (7th Cir.2010)). Applying office, speeches to make on behalf scrutiny, upheld the district court level political organization, another candidate striking appropriate Arizona’s Rules as an actively part any political or to take “constitutional balance” between campaign. rights and candidates’ First Amendment 21, 2008, a com- May Wolfson filed On protect- the state’s interests Commissioners of the plaint against process ing litigants’ rights due Conduct Arizona Commission on Judicial judiciary. ensuring impartiality B. Bar Counsel Robert Van and Chief id. at See 931-32. Commission”) in (collectively Wyck “the appealed. orig After an timely Wolfson for the United States Court District Concannon, hearing, panel inal v. Wolfson Arizona, the cam- alleging that District of (9th Cir.2014), 1145 was 750 F.3d the case his First paign regulations violated banc, en v. ordered to be reheard Wolfson speech of freedom of rights Amendment (9th Cir.2014). Concannon, 999 768 F.3d of association.4 and freedom but re Following this decision before we granted disagreed case, Supreme The district court Court decid heard the —Bar, summary motion for v. Florida the Commission’s ed Williams-Yulee Brammer, U.S. -, 1656, 135 191 L.Ed.2d 570 822 S.Ct. judgment.5 v. Wolfson (2015). (D.Ariz.2011). 925, The F.Supp.2d 931-32 election, through campaign or retention office.” reelection than tributions other 4.1(A)(5). by Rule 4.4...." Ariz. committee authorized Id. at 4.1(A)(6) Code of Judicial Conduct Rule (2014), http://www.azcourts.gOv/portals/l 37/ complaint also- named as defen Wolfson’s 4. 20o£%20Judicial% 20Code% rules/Arizona% Supreme of Arizona dants Commissioners 20Conduct.pdf. Commission, Disciplinary but Wolfson Court voluntarily all claims has dismissed since judge judicial "A or a candidate shall v. Bram against these defendants. Wolfson (2) political speeches ... make on behalf of 925, mer, (D.Ariz. F.Supp.2d 822 926-27 organization for or another candidate 2011). office; (3) publicly oppose or endorse another office; any funds candidate for solicit originally Wolf- dismissed political organi- The district court pay an to a for assessment candidate, had make contributions moot because the election zation or son’s claims as political organization any longer in ex- candidate or no passed and Wolfson was law, permitted Brammer, cess of the amounts No. CV-08- candidate. v. Wolfson per- fifty 102951, make total contributions excess PHX-FJM, at *3 WL 2009 8064— permitted by total cent of the cumulative 15, 2009). (D.Ariz. disagreed, and We Jan. ” 4.1(A)(2),(3), (4). Id. law.... v. the case. reversed remanded Wolfson 1045, (9th Brammer, Cir. 1066-67 shall not 3. "A or a candidate 2010). on review the decision made We now any actively part cam- take remand. paign his other than or her own

1180 2652,

I 127 U.S. S.Ct. 168 L.Ed.2d (2007). 329 Amendment, applicable to the First through States the Due Process Clause plurality In Amendment, says that the Fourteenth applied Court similar reason “Congress abridging no law ... shall make ing addressing of scrutiny when the level Const, speech.” the freedom of assessing appropriate Florida’s Code I; McIntyre amend. Ohio Elections 7C(1), Judicial a prohibi Conduct Canon Comm’n, 1, 514 U.S. 336 n. on personal during judicial tion solicitation (1995). L.Ed.2d Wolfson’s (“As campaigns. See 135 S.Ct. at 1664-65 (1) we appeal requests that address: long recognized, speech we have about application district court’s of intermediate qualifications public issues and the of can scrutiny to assess Arizona’s restrictions didates for elected office commands the (2) speech; im highest protec level of First Amendment Bar, pact of v. Florida tion.”). Picking up where the left Court — U.S. -, L.Ed.2d White, in Republican Party off Minn. v. (2015), on Arizona’s Personal Solicita 765, 774-75, 536 U.S. Clause, Clauses, tion Endorsement (White (2002) I) (assuming L.Ed.2d 694 Campaign Prohibition. deciding without scrutiny strict was' appropriate can restrictions on II ability didates’ their announce views first We address whether the district issues), legal various the Williams-Yulee court was correct in adopting Seventh plurality scrutiny held strict was war Circuit’s level scrutiny intermediate of Williams-Yulee, ranted. judicial speech assess Arizona’s restric- “A may the speech State restrict that, light tions. We hold of Williams- only candidate if restriction Yulee, it not. was narrowly is tailored to a compelling serve interest.” Id. Court repeatedly has held First Amendment its “[t]he has agree We plurality with the hold and urgent application fullest and most scrutiny appropriate that strict is here. speech po during campaign Williams-Yulee, uttered for Even before other courts litical office.” Citizens United v. Fed. had come to similar conclusions. See Car Comm’n, 310, 339-40, Election Wolnitzek, (6th 558 U.S. 189, 199-200 v. ey 614 F.3d 876, (2010) 130 S.Ct. Cir.2010); L.Ed.2d 753 Republican Party Minn. v. v. (quoting Cty. White, (8th Eu S.F. 738, Cir.2005) Democratic Cent. 416 F.3d 748-49 Comm., 223, (en banc) (White II); 489 U.S. Bonner, 109 S.Ct. Weaver v. (1989)) (internal (11th 103 L.Ed.2d 271 quotation 309 F.3d 1322-23 Cir. omitted). 2002). marks “requires This us err Additionally, our holding is lim not on protecting political the side of speech ited to Arizona’s Personal Solicitation rather suppressing Clause, than it.” Fed. Election meaningful which has no difference Inc., 7C(1).6 Comm’n v. Right Life, Wis. 551 from Florida’s Canon alsoWe 7C(1) candidate, cy. 6. Florida’s Canon reads: "A prohibited Such committees from including judge, an incumbent for a soliciting campaign contributions and by public office that is filled election between support any person corporation from au- competing personally candidates shall not sol- by thorized law.” Code of Judicial Conduct funds, campaign icit attorneys or solicit for (2014), http://www. for the State of Florida 38 publicly support, stated but establish floridasupremecourt.org/decisions/ethics/ responsible persons committees of to secure Code_JudiciaLConduct.pdf. Arizona’s Person- manage expenditure of funds similarly al Solicitation Clause reads: "A candidate’s and to obtain or a candidate shall not support statements of for his or her candida- personally soliciting scrutiny similarly appro- funds his strict hold that campaign, scrutiny. Endorsement Clauses own fails strict He for Arizona’s priate A deci- Prohibition. Campaign argues its is not nar- and for that Arizona’s contrary tailored, would sion otherwise rowly and that Williams-Yulee reasoning broad Supreme Court’s does not control our decision because Flor- Williams-Yulee, just addressed which ida and Arizona have different interests in cam- requests prohibition personal personal upholding respective their solici- contributions, but state restrictions paign tation prohibitions. generally. 'judicial speech A at 1665. See Compelling Interest put also us otherwise would decision not contend that Arizona Wolfson does taken approach conflict with lacks a interest behind so- Sixth, Eleventh Circuits. Eighth, and Instead, argues licitation he prohibition. significantly that Arizona’s interest dif- Ill in Canon ferent than Florida’s interest Federal, state, governments and local 7C(1), making scrutiny strict Court’s scrutiny struggled have to meet strict analysis inapplicable See, defending speech restrictions. when Attempting Arizona’s to distin- Clause. — Gilbert, U.S. e.g., Reed v. Town of interests, guish the two states’ Wolfson 2218, 2231-32, -, 192 L.Ed.2d 135 S.Ct. points first to Florida’s Code Judicial (2015); Playboy v. States United its commentary: Conduct Canon 803, 813-14, Inc., 529 Grp., Entm’t judgments rulings “Deference to the 146 L.Ed.2d public confidence depends upon of courts (2000); Ray, All. 699 F.3d OSU Student - integrity independence in the (9th Cir.2012); 1053, 1062-64 United integrity independence judges. The Alvarez, 1198, 1215-18 States v. upon acting turn their depend Cir.2010). (9th high To such a overcome without fear or favor.” Code Judicial review, the is re government standard (2014), State of Florida 6 Conduct for the ‘fur quired prove that “the restriction to http://www.fioridasupremecourt.org/ narrowly is thers interest and a ” decisions/ethics/Code_Judicial_Conduct. to achieve that interest.’ Citizens tailored language to that of compares He pdf. United, 340, 558 U.S. at 130 S.Ct. Rule of Conduct Arizona’s Code Judicial at Right Life, 551 U.S. (quoting Wis. 5, contends which he 1.2 Comment 2652). Following 127 S.Ct. Williams- pro- is that Arizona’s interest demonstrate Yulee,7 Arizona that we hold that meets perception “the tecting public’s the challenged the restric for all of standard tempera- honesty, impartiality, judge’s speech. tions on ment, Judicial or fitness.” Ariz.Code of A. The Solicitation Clause Personal n.5, (2014), http:// 1.2 cmt. Conduct Rule www.azcourts.gov/portals/137/rules/ that Arizona’s

Wolfson contends 20of%20Judicial% Arizona% 20Code% Clause, prohib which Personal Solicitation office, in An interest him, 20Conduct.pdf. running its while scrutiny exception the level of campaign With personally accept contri- the solicit or above, II, through a com- Chief Justice Rob- butions other than in Part addressed Ariz.Code of Judicial Conduct opinion garnered mittee....” in erts' 4.1(A)(6) (2014), http://www.azcourts. Rule , majority. at 1662. gov/portals/137/rules/Arizona% 20Code% 20Conduct.pdf. 20of% 20Judicial% First, “honesty, impartiality, temperament, fit- Wolfson contends that the Personal ness,” is argues, Wolfson different than is Solicitation Clause overbroad because it for “fear or favors.” concern methods, such covers solicitation as mass mailings and speeches large groups, This is a distinction without material quid that would not in pro quo. result Even if we consider the lan- difference. However, Supreme rejected the Court the guage points, Su- which Wolfson the uphold pro- argument preme may prohibit only Court did not Florida’s that the state in curbing hibition because of an interest that the solicitation methods most like- Instead, “fear or favors.” the Court was ly public to erode confidence. Williams- language reasoning. broad in its “We Yulee, 135 S.Ct. at The Court held have ‘vital in recognized the state interest’ argument the “misperceives the safeguarding ‘public fair- confidence the breadth of the compelling interest” and integrity ness and of the nation’s elected that, though impli- that “interest ” Williams-Yulee, judges,’ at varying degrees cated to con- particular (quoting Caperton Massey v. A.T. texts, ... the interest remains whenever Co., Coal public perceives judge personally (2009)), “ju- 173 L.Ed.2d 1208 because the asking money.” Id. diciary’s authority depends large public’s willingness Second, measure on the re- argues Wolfson that the Person- spect and follow its decisions.” Id. Ari- al Solicitation Clause is not the re- least interest, zona’s outlined in 1.2 Rule and its strictive means in- to effectuate Arizona’s comments, similar, if not identical. adopted terest because Arizona could have mandatory contribution limitations or a re-

Moreover, Supreme recog- Court Again, cusal rule. Court did “concept nized confi- argument persuasive. not consider this judicial integrity easily dence does not Id. 1671-72. Forced recusals would precise reduce definition.” Id. at 1667. jurisdictions Even if Arizona disable with a small adopted slightly different number interest,8 language for its articulation its judges, erode in the confidence Arizona similarly upholding interested in judiciary, and create an liti- incentive for judiciary’s credibility. There are no gants to make sole contributions magic required words for a state to invoke purpose forcing re- later an in preserving public confidence cuse litigant’s himself herself from the integrity sitting state’s cases. Id. Contribution limits would be judges. similarly improper ap- ineffective. The judicial a pearance of soliciting candidate

Arizona’s interest behind its Personal and, money would still though remain even compelling. Solicitation Clause is previously the Court had held that contri- Narrowly 2. Tailored bution limitations advance the interest against quid pro arguments quo corruption, a Wolfson’s that Per- state Arizona’s sonal Solicitation narrowly pursuing by Clause is not not restricted to its a interest precluded tailored single are Williams-Yulee. means. Id. at 1672. dence, integrity, impartiality judi- Wolfson’s articulation of Arizona's interest and of the ignores stresses plain ciary, selective words and impropriety and shall avoid and language nearly appearance Rule impropriety.” 1.2 which is identical of Ju- Ariz.Code (2014), to interests "A http://www. Florida stated in Canon 1. dicial 1.2 Conduct Rule judge shall act at azcourts.gov/portals/137/rules/Arizona% all times in a manner promotes public indepen- confidence in the 20Conduct.pdf. 20Code% 20of% 20Judicial% govern raise ‘doubts about whether Personal Solici- that Arizona’s

We hold pursuing tailored is in fact the interest it narrowly ment tation Clause invokes, disfavoring particu interest. a compelling rather than the state’s achieve ” Williams-Yu uphold reasonably speaker viewpoint,’ wants lar or The state lee, Brown v. elected perception publicly (quoting at 1668 public’s unbiased, Ass’n, Merchs. and Entm’t being as fair-minded judges judicial can- (2011)), by prohibiting do so and 180 L.Ed.2d making personal solicitations. didates from can “reveal that a law does not actual and Id. a interest.” ly compelling advance and the B. The Endorsement Clauses However, need not all State address “[a] Prohibition Campaign problem swoop” in one aspects fell and argues that Arizona’s Wolfson also most pressing can “focus on con [the] Pro Campaign Clauses and Endorsement cerns.” Id. narrowly Ari tailored to hibition are Williams-Yulee controls our again, Once public confi zona’s assessing In Florida’s reasoning. whether These judiciary’s integrity.9 dence in the underinclusive, solicitation clause was him, running for while prohibit Clauses 7C(1) looked at whether Canon was Court office, soliciting

judicial personally from at the most like- squarely “aim[ed] conduct candidate funds another campaign public in the ly to undermine confidence publicly endorsing political organization, or integrity judiciary,” “applie[d] even- of another making speech behalf or handedly all and judges candi- office, actively tak candidate for dates, viewpoint,” regardless of their and any campaign. Wolf- ing part political Id. exceptions.” “not riddled with was un- prohibitions contends that the son 1668-69. do not believe that anal- We derinclusive, overbroad, generally not and any ysis should be different when assess- enough the interest at hand. tailored ing prohibition par- of endorsements re disagree. properly Arizona can We political campaigns. ticipation judicial candidates judges strict may have been about a Williams-Yulee taking activities that un part on direct candidate solicitations prohibition public’s dermine confidence contributions, but Su- law, rulings on base reasoning was broad preme Court’s ?party affiliation. ar- encompass underinclusivity enough to types aimed at other guments Underinclusivity as prohibitions such Ari- speech En- that Arizona’s Wolfson contends its Cam- zona’s Endorsement Clauses Prohibi- Campaign dorsement Clauses and Prohibition. paign tion are underinclusive because allow And the Endorsement Clauses to receive endorse- both candidates easily fit under ments, Campaign Prohibition allow endorse non-candidates, underinclusivity analysis. al- officials and First, squarely prevent- aimed at judi- Arizona participate low other candidates “[Ujnderinclusiveness judiciary’s that could erode the ing can conduct campaigns. cial through ciary a ban again furthers this interest not that Arizona and 9. Wolfson does contest upholding compelling has the interest in personal and curtailment solicitation Campaign and Prohibi- Endorsement Clauses ability engage with the judicial candidates’ in tion. Arizona has a. government. political branches of judi- upholding in the confidence the 1184 judicial ac-

credibility. Overinclusivity When candidate 2. tively political in engages campaigns, that En- Wolfson next contends the put ques- judge’s impartiality can be into Campaign dorsement Prohi- Clauses and tion, public can lose faith in the and the unconstitutionally bition are overbroad ability judiciary’s abide the law and Campaign because the Prohibition bans along political make lines. decisions measures, involvement with ballot and Arizona’s and Cam- Endorsement Clauses judges the Endorsement Clauses forbid paign endorsing anyone, Prohibition are aimed at these valid from even candidates the concerns. See Arizona Judicial like President of the United Code States (“Rather are 4.1, highly unlikely appear who before Comment Conduct Rule judge.11 regulation “may A over- making upon than decisions based the ex- impermissibly turned as be- overbroad or pressed preferences views appli- cause a substantial number its electorate, makes decisions based unconstitutional, judged cations are upon every and the facts of law case. relation to plainly legitimate the statute’s Therefore, interest, furtherance Grange Wash. State v. Wash. sweep.” judges must, and candidates Republican State Party, possible, greatest ap- extent be free and 449 n. L.Ed.2d pear political to be free from influence and (2008) (internal quotation marks Further, political pressure.”). En- omitted). Campaign dorsement Clauses and Prohibi- Again, Williams-Yulee forecloses Wolf- apply judges tion to both and can- There, arguments. son’s the petitioner didates and have few exceptions.10 contended even though that Florida could question We need not whether Arizona constitutionally prevent judges from soli- have, argues, could prohibited as Wolfson citing person lawyers or in with one-on-one types more of endorsements or 7C(1) litigants, and was Canon overbroad participation. “[Pjolicymakers may focus prohibition because it included a of solicita- their pressing most concerns” and the Williams- through mailings. tion mass fact that “conceivably the state could could Yulee, petition- 1670-71. The have even greater restricted amounts of argued er that latter would have less speech in service their stated interests” impact on the confidence of the is not a scrutiny. death blow under strict Id. at 1671. But judiciary. Williams-Yulee, 135 S.Ct. at Ari- 1668. convinced, Court was not that reasoning zona’s Endorsement Clauses and Cam- such distinctions became so fíne as to be paign unworkable, Prohibition are not underinclusive. part, large Florida’s Judges issue, disputed make including those issue-based initiatives, limited contributions to another cautioning while can- 4.1(A)(4) political organization cases, under Rule respect didates shall "with con- troversies, may engage per- activity that likely or issues that come legal system court, tains to the or attend dinners or pledges, promises before the make pub- similar functions do not constitute a commitments that are inconsistent with lic endorsement of candidates impartial under Rule performance adjudicative 4.1(C). duties of the "act office” shall in a man- integrity impartiality, ner consistent with the We independence need not reach judiciary.” whether Arizona could Ariz. constitutionally Sup.Ct. discussing Advisory forbid Op. Ethics Judicial 06-05 (2006); interprets ballot measures. Arizona Sup.Ct. see Ariz. also Judicial Ethics (2008). Clauses to any Advisory Op. allow candidates to discuss

1185 I, 788, at 122 jects. 536 U.S. judicial candidates See White still left restriction any person Instead, any simply Arizona to issue with S.Ct. 2528. “free discuss Further, at any time.” Id. 1670-71. at makes distinction that a candi- speech though that these held only the Court do so in relation to his or may date tailored, narrowly must be restrictions campaign. follows rea- her own This Id. “perfectly tailored.” they need not I, soning the Supreme in White where Freeman, 504 Burson v. (quoting 1671 at restrictions on Court was concerned about 1846, L.Ed.2d U.S. ability express legal to views while (1992)). in great- arise problems “[M]ost 770-74, see id. campaigning, at S.Ct. and,lesser the First gradations, and er 2528, ability not on advance a State to does not confine (cid:127)Amendment political aspirations and another views acute in their most form.” addressing evils The latter is not kind of candidate. O’Connor, Id.; see also O’Toole I sought in speech the Court White (6th Cir.2015). 783, at 790-91 Sexton, F.3d protect. See Wersal v. similarly us to a asks draw (8th Cir.2012) (“[T]he Wolfson 1010, 1026 endorse- line. Al- unnecessary unworkable regulate speech ment does not with clause presi- though a United States supporting issues, thus regard any underlying less of an have dential candidate posi- are free to state their candidates than confidence en- public on the effect issues, in line with tions on these White (cid:127) for an Arizona dorsing campaigning (“While /.”); an Siefert, 608 F.3d at 984 prosecutor, a cre- senator or local State perceived impartiality in the line is unworkable as it ating rigid as impartiality judiciary justi- does not in unhelpful. Judges engaging politi- identifying as fy forbidding from may present acts different levels cal political en- parties, members of It is in different situations. impropriety type is not of cam- dorsement the same guess our role to proper not second— targeted by paign speech [as that] in regard. Much Arizona’s decisions about impermissible against talking rule per- a line between as the state drew legal Court struck issues by by sonal solicitation candidates Bauer, /.”); 620 F.3d at down White in order preserve committees (holding reasoning em- 711-12 - judiciary’s integrity, in the confidence prohibition uphold ployed Siefert so endorsements against judicial candidate too can the state decide prohibition parti- to a equally applicable engage legisla- candidates should activities). san “These campaigns. tive or executive preserving compelling interest our re- judgments deserve considered judi- integrity of in the public confidence because reflect spect, especially Ari- view of ciary favorable warrants in an area choices sensitive States judicial candi- attempt to foreclose zona’s governance central to their own —how campaigns engaging political dates from judges.’” ‘sit their select those who as The Endorsement other their own.' than Ashcroft, 501 (quoting Gregory v. Id. are not Campaign Prohibition Clauses and fatally overbroad. (1991)). L.Ed.2d 410 with conclusion is consistent White Our Means Least Restrictive prevent prohibitions I. do Arizona’s Ari contends that Finally, Wolfson announcing their and Cam- Clauses zona’s Endorsement legal sub- disputed views on 1186 narrowly scrutiny tailored level of used

paign Prohibition are intermediate Circuit, they it at do not offer least restric the Seventh arrived the cor- because to further the interest. rect result. The Personal tive means state’s Solicitation Clause, Clauses, argues prevent He that the Clauses do not Endorsement and Cam- certain judges favoring paign Prohibition all withstand First court, appear they may analysis scrutiny. in and even if Amendment under strict did, way compelling would the best has a in up- recusal be Arizona interest impartiality appearance holding public judiciary. handle such confidence in the Williams-Yulee, impartiality. government only light in may And we hold “regulate constitutionally narrowly content that Arizona’s Rules are tailored protected speech promote compelling judgment in order to to its interest. The if it of the district court is compelling interest chooses the least therefore restrictive means to further the articulated AFFIRMED. Cal., Sable Inc. interest.” Commc’ns v. BERZON, FCC, 2829, 106 Judge, concurring: Circuit 109 (1989). L.Ed.2d 93 Bar, Given Florida — U.S. -, all, 191 L.Ed.2d But answer recusal is no at (2015), general I am in with agreement flatly this unworkable alternative was dis- Judge opinion Gould’s en banc A missed Williams-Yulee. rule re- (“main opinion”). court There two judges to quiring recuse themselves from however, points, to which main opin as every case where endorsed or cam- best, terse, therefore, ion is at and which parties paigned for one of the “dis- could my view, exploration. deserve further many jurisdictions” able cripple Williams-Yulee, judiciary. See First, I panel opinion concurred at 1671. Four of Arizona’s counties have highlight my concern about articulating only superior one court and two governmental in reg- interests at stake only other superior counties have two ulating judicial elections, sepa- and write Branch, judges. court Arizona Judicial here, too, rately to reiterate same con- Fiscal Report http:// Year Annual Concannon, cern. son v. Wolf www.azcourts.gov/Portals/38/2014% 20An- (9th Cir.2014) (Berzon, J., con- 20Report.pdf. Campaigning nual% for fre- curring). opinion supports The main all quent litigants would cause an insur- challenged three Arizona’s restrictions mountable burden that other on during ju- candidates’ behavior other counties able to bear. campaigns dicial election on the basis of Moreover, an extensive recusal record governmental the same interest — could cause the same erosion of See, impartiality. e.g., Maj. Op. at 1183- judiciary confidence that Arizona’s But species speech three different Endorsement Clauses and Pro- Campaign regulation candidates are here hibition are trying prevent. issue, not one. And while one regulations personal ban solicita-

We hold that the Endorsement Clauses —the closely tion—is related the restriction Campaign narrowly Prohibition are considered in two—the tailored to achieve Arizona’s campaigning bans endorsements and interest. nonjudicial candidates and causes—are IV bans, quite different. to the two As latter though Even the district court I erred am not at all that the governmental sure bypassed scrutiny when it strict preventing in favor of deci- biased ” candidate,’ (quoting id. at compelling inter- sionmaking survives the standard are re- est/narrowly Discipline tailored we Simes v. Ark. and Dis Judicial convinced, however, apply. I am quired Com’n, 577, 585, ability Ark. 247 368 underlying a interest there is societal (2007)). in impartiality S.W.3d 876 This maintaining in- an those two fairly is its reach also important; restrictions — terest accurately more judiciary dependent “root re Impartiality’s meaning” —that limited. judicial limit candi- captures the reasons to against fers to lack of “bias for or the campaigning ac- endorsements dates’ Republi the party proceeding.” either the tivity, compelling and that does meet White, 765, v. Party can Minn. 536 U.S. of tailoring requirements. interest/narrow (2002) 775, 122 2528, 153 L.Ed.2d 694 S.Ct. Additionally, opinion main does not the (emphasis original). in Restrictions that sitting judges run distinguish between who justified society’s in by can be interest judicial office protect impartiality are those aim at be, yet, may judges. not never who are ing rights litigants ap the process due not to be This distinction turns out disposi- in judge a court. pearing before case, explaining this but it is worth tive of is, however, separate, There a broader so. why that is governmental regulating basis opinion As the and the Su main beyond with goes behavior that a concern recognize, concept “[t]he Court preme in decisionmaking biased individual cases. judicial integrity in does public confidence society’s That concern with easily definition.” precise reduce to appearance the and the maintaining both —Bar, Florida Williams-Yulee judi- reality structurally independent of a -, 1656, 1667, 191 135 S.Ct. L.Ed.2d 570 process ciary, engaged decisionmaking in a (2015). view, my requires In this case us broad, by legal, informed disentangle two distinct facets of this I nonlegal As ex- policy considerations. interest. panel plained my in concurrence to First, in society an interest has opinion, weighty “both and nar- impartiality that is judicia- in Maintaining public trust (Berzon, Wolfson, at 1163 row.” by legal prin- as driven ry an institution J., concurring). This fundamental interest a political concerns is ciples rather than in Due Process is enshrined Clause’s rule of law imperative. The structural trying prohibition judge case depends it. upon out- which she “has an interest importance The fundamental Co., Caperton Massey come.” v. AT. Coal recog- imperative has been structural Inc., 2252, 173 556 U.S. founding nation. of the (2009). nized from L.Ed.2d emphasized As Hamilton Alexander impartiality It is this concern that un- 78, pos- The No. the courts Federalist derlay the restriction solicitation WILL, nor but sess “neither FORCE undergirds and also Ari- (Clin- merely Id. at 433 judgment....” on judges’ personal zona’s ban solicitation 1961). ed., Deprived ton Rossiter lawyers funds. donors are “[M]ost power, those sources of alternative litigants may appear who before the “lies judiciary instead authority of the they are supporting,” of sub- product ... legitimacy, its 1667, “personal S.Ct. at solicitation itself that shows perception stance and ‘inevitably places the acceptance of the Judi- people’s in the position in a fear solicited individuals the ... ciary to determine what financially if as fit support retaliation fail to 81, to declare what it de- No. equity.” law means and Federalist at 452 (Alexander (Clinton Hamilton) Se. mands.” Planned Parenthood Rossiter Casey, 1961). Pa. v. 505 U.S. ed., politicization And where (1992); L.Ed.2d 674 see it judiciary brings into alliance White, also 536 U.S. politicians staff with who the other (“The J., (Kennedy, concurring) government, two branches of prerogative a court power and the no longer “the consider courts of end, rest, upon respect in the justice ... as the bulwark of a limited judgments.”). It is the accorded to its against legislative Constitution en- legitimacy perceived courts’ as institu- croachments,” 78, The Federalist No. at grounded legal tions established 437, short, or executive excesses. In principles, partisanship, “that leads sitting judges support when the cam- obeyed vigi- decisions to be and averts nonjudicial of paigns candidates —via en- Bauer, lantism and civil strife.” dorsements, speeches, money, or other judicial legitimacy F.3d at 712. Loss of may public begin means —the to see law, thus the corrodes rule of not as them neutral arbiters of a limited “sap[ping] the foundations of and of system governance, partici- but as confidence, private and intro- game pants larger politics. the of ducing] in stead its universal distrust (Berzon, Wolfson, 750 F.3d at 1164-65 J. 78, and The No. distress.” Federalist (footnotes omitted). concurring) sense, In rule of “[t]he short, deep-seated In a law, the freedom, a which is foundation of independence structural presupposes functioning judiciary judiciary re- spected independence, profes- recognized indispensable for its its has been as attainments, sional and the absolute our constitutional order since the founding probity judges.” of NY its State Bd. era. See id. at An independent of Torres, Lopez Elections 552 U.S. “must things put above all aside his 169 L.Ed.2d 665 political of legislative estimate values” (2008) J., (Kennedy, concurring). interpreting Benjamin when the law. Car- political This nation’s history demon- dozo, Process, The Nature the Judicial of strates the per- disastrous effects of the (internal (1921) omitted) quotation mark politicization ceived of courts. the (quoting Brütt, Lorenz Die Kunst der Charges King George “ha[d] ob- (1907)). Rechtsanwendung, 57 structed the Administration of Justice” judges When swap endorsements with made dependent “ha[d] candidates, legislative or executive among his Will alone----” were the speeches nonjudicial during political make justifications founding generation’s campaigns, political legislative their the 1776 revolution. The Declaration of fore, are brought threatening values to the (U.S.1776). Independence para. of public’s perception indepen- the their Similar apply concerns the con- outside quote To from again my panel dence. monarchy: text of judiciary Where the concurrence: political drawn into the of intrigues its express The precisely defendants here branches, coordinate public might the sitting if judges may this concern—that well “fear péstilential that the of breath others, support of campaigns may faction poison jus- fountains will perceive them as masters tice. being continually The habit of opposite political game, powerbrokers marshaled on be sides will too “trad- apt to stifle voice both of law and of ing prestige on the of their office to ” Sie- dorsing nonjudicial po- campaigning ends.... political other advance 984; organizations. litical But see also Model candidates fert, 608 F.3d at concerns these activi- 4.1, raised distinct cmt.4 R. of Judicial Conduct Code overlap. only partially in-person ties An (2011) en- prohibitions on (justifying unique quid risk of a solicitation creates speeches on behalf dorsements quo ap- or at pro arrangement, least sitting “preventing as other one, pearance between candi- abusing prestige judges] Sexton, donor. See Wersal v. and a date office advance the interests (8th Cir.2012) (en others”). equally fear is opposite The banc). arrangement The risk of an such Today’s powerbroker is tomor- justified: attenuated, though, more it comes to when shift pawn, row’s as winds campaigning nonju- endorsements and cycle approaches. next and the election issues. dicial candidates and Candidates fate judge entwines his endorsing can, course, exchange in a endorsements earns he endorses and with whomever mutually arrangement. But beneficial politician’s op- enmity of his favored many “[a] there scenarios where personal affilia- “This kind of ponents. ex- judicial candidate’s of an endorsement judiciary of member the tion between a legislative or candidate ... bene- ecutive political a member the branches the more than endorser.” fits endorsee the by specter readily perceived the raises — (Beam, J., Id. at 1049 The dissenting). fu- public judge’s the general the —that judicial can be true when a same by this rulings be influenced ture will credibility nonjudi- lends their time or to a dependency.” Wersal v. Sex- campaign. issue cial Cir.2012) (8th ton, 674 F.3d Reframing governmental the (Loken, J., judgment) concurring the judicial underlying on candi- restrictions (emphasis original). political organi- or campaigns dates’ role J., (Berzon, Wolfson, 750 F.3d at brings zations other than their own also concurring). requisite into focus the “less-restric- better nor the I read neither Williams-Yulee analysis. tive means” Personal recusal to con- opinion say anything main to the to solicitation an ineffective alternative the trary. indepen- Both impartiality because, as and the bar instance, implicit, for in the ma- dence are out, point problematic it would majority be ability jority’s judiciary’s reference to “the many jurisdic- have recusals smaller to by the and not make decisions to abide law tions, “per- would have a individuals Maj. at 1184. along political Op. lines.” to in the judges incentive” to donate verse But because First Amendment doctrine if the to recuse hopes forcing on the and nature of the focuses breadth Williams-Yulee, at elected. stake, important it is to be interests contrast, 1671-72; Maj. Op. at 1182. In by raised case that the interests this clear to might a better recusals be alternative process not limited to the due concerns are bars, if the campaign the endorsement and judicial signaled impartiality. term in- avoiding only concern conflicts were particularly This dual focus is critical en- nonjudicial The number of terest. where, case, as in interests two speeches or a candi- dorsements aspects regulations at issue affect than likely to be far lower date makes opinion main takes differently. donating The to his number of individuals hos- reasoning regarding And the concern of campaign. Williams-Yulee’s her it form of personal applies peremptory solicitation of funds and as “a tile donations against judge,” en- a ban strike uphold to First, disappears sitting judges already S.Ct. at where the are one choosing candidate is the employees. held Court has to endorse. whom Pickering line of cases that speech may employee subject great- to me, then, It is not clear to er restrictions than the First Amendment judicial impartiality, interest of Pickering allow. v. would otherwise See the reasons for that the re- concluding Twp. High Bd. Educ. Sch. Dist. focused, sufficiently narrowly strictions Ill, Cwty., Will translate well from the realm solicitation (1968). practice 20 L.Ed.2d 811 campaigning or en- The Seventh instance, dorsing Circuit, other issues. But applied Pickering candidates or has surely these restrictions do advance the balancing to adopt evaluating test when judicial indepen- interest in structural vital sitting judges’ speech. restrictions See The campaign dence. and endorsement (7th Shepard, Bauer v. 620 F.3d 704 Cir. respond restrictions to a structural need— 2010); Alexander, Siefert judges engaging restrict in non- (7th Cir.2010). Pickering But does judicial campaigns, prevent them from appear apply speech of candi- being entangled legislative in the and exec- yet dates for office who are not political process. utive Judges must have public employees. against nonju- the confidence to firm stand Second, judicial indepen- the structural dieial elected officials. That confidence dence interest to me is central give way appear give way could —or —if upholding two of the cam- three just behave like those elected offi- paign here applicable restrictions comes cials, usual, by engaging in often con- only into full force when the individual and fiercely partisan, political pro- tentious actually elected ascends the Be- bench. cesses. that, fore the concern is somewhat contin- I2. also write to note another distinc- gent may judge. candidate become a —the tion that both opinion the main and Still, contingency that may be sufficient opinions lump Williams-Yulee elide. Both treating judicial reason for together sitting judges running for re-elec- a sitting who is judge according not to the nonjudge tion and aspiring candidates to judicial rules of ethics. in- The structural See, office. e.g., the dependence concerns largely aspira- are 1668; at Maj. Op. at The main tional, the perception and the opinion does so only respect with judicial may role be most at the forefront directly the restriction pertinent to the during judicial drawing elections. So election, judicial restriction, the solicitation nonjudicial political line on at participation with respect but to the two other restric- point judicial of declaration of candida- as well. tions cy may help reality to forward both the It is worth considering that uni- whether appearance politically inde- justified. reflection, form treatment On pendent judiciary. it seems to me that competing consider- Moreover, sitting subject if judges were pull ations in various directions with re- greater activity restrictions gard application sitting judges candidates, nonjudge than two individuals judicial nonjudicial candidates of the up running end for judicial endorsement and the same campaigning restrictions. end, agree In the I opinion’s footing. with main office on somewhat uneven The conclusion all three at regulations “repeatedly rejected is- Court has are sue valid with both respect groups. argument government has a ‘leveling state interest justify can undue bur- field’ that playing Ariz. Free En- political speech.”

dens PAC v. Ben- Freedom Club

terprise Club’s

nett, (2011). But those cases L.Ed.2d 664 government attempts concerned

have adjust nongov- for designed to

intervention Here, re- disparities. stricter

ernmental campaigns on during judicial

strictions campaigning

nonjudicial endorsement judges for nonincumbent sitting than

for would cre- positions for

candidates politi- it. Such disparity, not level

ate gives candidates participation

cal exposure to the opportunity

more

electorate, and to connect more chance on nonjudicial voters matters

with allowing some inequity

care about. office but others added to the opportunities,

those when just concerns

aspirational appearance

discussed, sufficiently compelling seem sitting

justify parallel restrictions both run- nonjudges, when

ning for the same office. sum, opinion, I main

In concur in the I

light of further conclusions reach

this concurrence. ZACHARY;

David K. Annmarie S.

Snorsky, Debtors-Appellants, TRUST, BANK &

CALIFORNIA

Respondent-Appellee.

No. 13-16402. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Oct.

Filed Jan.

Case Details

Case Name: Randolph Wolfson v. Colleen Concannon

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 27, 2016

Citation: 811 F.3d 1176

Docket Number: 11-17634

Court Abbreviation: 9th Cir.