Wolfson v. Concannon

• Decision Date: 09 May 2014
• Docket Number: No. 11–17634.,11–17634.
• Citation: 750 F.3d 1145
• Parties: Randolph WOLFSON, Plaintiff–Appellant, v. Colleen CONCANNON, in her official capacity as member of the Arizona Commission on Judicial Conduct; Louis Frank Dominguez, in his official capacity as member of the Arizona Commission on Judicial Conduct; Peter J. Eckerstrom, in his official capacity as member of the Arizona Commission on Judicial Conduct; George H. Foster, in his official capacity as member of the Arizona Commission on Judicial Conduct; Sherry L. Geisler, in her official capacity as member of the Arizona Commission on Judicial Conduct; Michael O. Miller, in his official capacity as member of the Arizona Commission on Judicial Conduct; Angela H. Sifuentes, in her official capacity as secretary of the Arizona Commission on Judicial Conduct; Catherine M. Stewart, in her official capacity as member of the Arizona Commission on Judicial Conduct; J. Tyrell Taber, in his official capacity as member of the Arizona Commission on Judicial Conduct; Lawrence F. Winthrop, in his official capacity as member of the Arizona Commission on Judicial Conduct; Maret Vessella, Chief Bar Counsel of the State Bar of Arizona, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

750 F.3d 1145

Randolph WOLFSON, Plaintiff–Appellant,

v.Colleen CONCANNON, in her official capacity as member of the Arizona Commission on Judicial Conduct; Louis Frank Dominguez, in his official capacity as member of the Arizona Commission on Judicial Conduct; Peter J. Eckerstrom, in his official capacity as member of the Arizona Commission on Judicial Conduct; George H. Foster, in his official capacity as member of the Arizona Commission on Judicial Conduct; Sherry L. Geisler, in her official capacity as member of the Arizona Commission on Judicial Conduct; Michael O. Miller, in his official capacity as member of the Arizona Commission on Judicial Conduct; Angela H. Sifuentes, in her official capacity as secretary of the Arizona Commission on Judicial Conduct; Catherine M. Stewart, in her official capacity as member of the Arizona Commission on Judicial Conduct; J. Tyrell Taber, in his official capacity as member of the Arizona Commission on Judicial Conduct; Lawrence F. Winthrop, in his official capacity as member of the Arizona Commission on Judicial Conduct; Maret Vessella, Chief Bar Counsel of the State Bar of Arizona, Defendants–Appellees.

No. 11–17634.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2013.

Filed May 9, 2014.

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

Charles A. Grube (argued), Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, for Defendants–Appellees Colleen Concannon, Louis Frank Dominguez, Peter J. Eckerstrom, George H. Foster, Sherry L. Geisler, Michael O. Miller, Angela H. Sifuentes, Catherine M. Stewart, Tyrell Taber, and Lawrence F. Winthrop in their official capacities as members of the Arizona Commission on Judicial Conduct; Kimberly A. Demarchi (argued), Lewis Roca Rothgerber LLP, Phoenix, AR, for Defendant–Appellee Maret Vessella, Chief Bar Counsel of the State Bar of Arizona.

Before: RICHARD A. PAEZ, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate's campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process. Here we must decide whether several provisions in the Arizona Code of Judicial Conduct restricting judicial candidate speech run afoul of First Amendment protections. Because we are concerned with content-based restrictions on electioneering-related speech, those protections are at their apex. Arizona, like every other state, has a compelling interest in the reality and appearance of an impartial judiciary, but speech restrictions must be narrowly tailored to serve that interest. We hold that several provisions of the Arizona Code of Judicial Conduct unconstitutionally restrict the speech of non judge candidates because the restrictions are not sufficiently narrowly tailored to survive strict scrutiny. Accordingly, we reverse the district court's grant of summary judgment in favor of Defendants.

I.

Arizona counties with fewer than 250,000 people popularly elect local judicial officers. See Ariz. Const. art. VI, §§ 12, 40.¹ The Arizona Code of Judicial Conduct² (the "Code") regulates the conduct of judges campaigning for retention and judicial candidates campaigning for office. The Code provides for discipline if a candidate is elected as a judge, but lawyers who are unsuccessful in their candidacy may also be subject to discipline under the Arizona Rules of Professional Conduct.³ See Ariz.Rev.Stat. Ann. § 17A, Sup.Ct. Rules, Rule 42, Rules of Prof. Conduct, ER 8.2 (2003).

Plaintiff Randolph Wolfson was an unsuccessful candidate for judicial office in Mohave County, Arizona in 2006 and 2008. Wolfson I, 616 F.3d at 1052–53. He intends to run in a future election. Id. at 1054–55. As a candidate, Wolfson wished to conduct a number of activities he believed to be prohibited by the Code, but refrained from doing so, fearing professional discipline.⁴ He brought this action challenging the facial and as-applied constitutionality of certain provisions of the Code, seeking declaratory and injunctive relief. Defending this appeal are the members of the Arizona Commission on Judicial Conduct (the "Commission") and Arizona Chief Bar Counsel ("State Bar Counsel"), collectively the "Arizona defendants."⁵

Wolfson challenges five clauses of Rule 4.1 of the Code (the "Rules"):

(A) A judge or judicial candidate shall not do any of the following:

....

(2) make speeches on behalf of a political organization or another candidate for public office;

(3) publicly endorse or oppose another candidate for any public office;

(4) solicit funds for or pay an assessment to a political organization or candidate, make contributions to any candidate or political organization in excess of the amounts permitted by law, or make total contributions in excess of fifty percent of the cumulative total permitted by law....

(5) actively take part in any political campaign other than his or her own campaign for election, reelection or retention in office;

(6) personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4....⁶

Ariz.Rev.Stat. Ann. § 17A, Sup.Ct. Rules, Rule 81, Code of Jud. Conduct (2009).

This is the second time that this case is before us. We previously held in Wolfson I that Wolfson's challenges to these clauses (hereinafter the "solicitation" clause (6) and "political activities" clauses, (2)-(5)) were justiciable and remanded them to the district court to consider them on the merits. Wolfson I, 616 F.3d at 1054–62, 1066–67. With respect to his challenge to a now-defunct "pledges and promises" clause, we held that Wolfson lacked standing to challenge it insofar as it applied to the speech of judges. Id. at 1064. "Wolfson cannot assert the constitutional rights of judges when he is not, and may never be, a member of that group." Id.

On remand, ruling on cross-motions for summary judgment, the district court applied a balancing test articulated by the Seventh Circuit in Siefert v. Alexander, 608 F.3d 974 (7th Cir.2010), and Bauer v. Shepard, 620 F.3d 704 (7th Cir.2010), and upheld the constitutionality of the five challenged Code provisions. Wolfson II, 822 F.Supp.2d at 929–30. The balancing test from Siefert / Bauer "derives from the line of Supreme Court cases upholding the limited power of governments to restrict their employees' political speech in order to promote the efficiency and integrity of government services." Id. at 929. The district court held that this standard "strikes an appropriate balance between the weaker First Amendment rights at stake and the stronger State interests in regulating the way it chooses its judges," apparently because the speech at issue was not "core speech" deserving of strict scrutiny but "behavior short of true speech." Id. at 929–30.

The district court proceeded to balance the interests of the state against the interests of a judicial candidate. With respect to the political activities restrictions (the campaigning and endorsement clauses), the district court held that "[e]ndorsements, making speeches, and soliciting funds on behalf of other candidates is not ... core political speech." Id. at 931. The district court distinguished between announcing one's own political views or qualifications—speech protected by Republican Party of Minn. v. White, 536 U.S. 765, 788, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (White I ) —and the type of speech prohibited by the Rules, which only "advance[s] other candidates' political aspirations, or ... garner[s] votes by way of political coattails." Wolfson II, 822 F.Supp.2d at 931–32. Moreover, although the district court recognized that its review was "limited to the constitutionality of the Rules as applied to judicial candidates who are not also sitting judges," id. at 928, it nonetheless

reject[ed] the suggestion that judicial candidates ought to enjoy greater freedom to engage in partisan politics than sitting judges. An asymmetrical electoral process for judges is unworkable. Fundamental fairness requires a level playing field among judicial contenders. Candidates for judicial office must abide by the same rules imposed on the judges they hope to become.

Id. at 932. The district court assumed the constitutional validity of the Rules restricting political activities as applied to sitting judges, holding that "the Pickering line of cases [upholding the government's power to restrict employees' political speech to promote efficiency and integrity of government services] remains relevant to restrictions on the speech of sitting judges." Id. The court concluded that Rules 4.1(A)(2)-(5) appropriately balanced the state's interest in "protecting the due process rights of litigants and ensuring the real and perceived impartiality of the judiciary" against a candidate's interest in "participating in the political campaigns of other candidates" and upheld the political activities clauses as constitutional. Id.

As for the solicitation clause (Rule 4.1(A)(6)) prohibiting a judicial candidate from "personally solicit[ing] or accept[ing] campaign contributions other than through a campaign committee," the district court held that it was constitutional as applied to non judge candidates because it struck "a constitutional balance" between the state's interest in the appearance and actuality of an impartial judiciary and a candidate's need for funds. Id. at 931. The district court found that all forms of personal solicitation, whether in-person or via signed mass mailings, created "the same risk of coercion and bias." Id. Wolfson timely appealed.

II.

A.

We review de novo an order granting summary judgment on the constitutionality of a statute. See Nunez by Nunez v. City of San Diego, 114...