Wolfson v. Brammer
| Decision Date | 13 August 2010 |
| Docket Number | No. 09-15298.,09-15298. |
| Citation | 616 F.3d 1045 |
| Parties | Randolph WOLFSON, Plaintiff-Appellant, v. J. William BRAMMER, Jr.; John C. Gemmill; Angela H. Sifuentes; Robert M. Brutinel, Judge; Sylvia Patino-Branfon; Harriett Chavez; Shelia S. Polk; Louis Frank Dominguez; Sherry L. Geisler; Catherine M. Stewart; Marion Weinzweig; J. Conrad Baran; Daisy R. Flores; Jeff Messing; John Pressley Todd; William W. Horsley; Laura Bellau; Pamela M. Katzenberg; Timothy Gooding; Karen Osborne; Robert B. Van Wyck, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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James Bopp, Jr., Esq., Bopp, Coleson & Bostrom, Terra Haute, IN, for plaintiff-appellant Randolph Wolfson.
Kimberly A. Demarchi, Esq., Lewis and Roca LLP, Phoenix, AZ, for defendant-appellee Robert Van Wyck, Chief Bar Counsel of the State Bar of Arizona.
Charles A. Grube, Esq., Assistant Attorney General, Office of the Arizona Attorney General, Phoenix, AZ, for defendants-appellees J. William Brammer, Jr., John C. Gemmill, Angela H. Sifuentes, Robert M. Brutinel, Sylvia Patino-Branfon, Harriett Chavez, Shelia S. Polk, Louis Frank Dominguez, J. Conrad Baran, Daisy R. Flores, Jeff Messing, John Pressley Todd, William W. Horsley, Laura Bellau, Pamela M. Katzenberg, Timothy Gooding, and Karen Osborne.
Appeal from the United States District Court for the District of Arizona, Frederick J. Martone, District Judge, Presiding. D.C. No. 3:08-cv-08064-FJM.
Before: J. CLIFFORD WALLACE, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.
While a candidate for judicial office in Arizona, appellant Randolph Wolfson initiated this action against the members of the Arizona Commission on Judicial Conduct, the members of the Arizona Supreme Court Disciplinary Commission, and Arizona Chief Bar Counsel Robert Van Wyck (collectively, defendants) challenging several canons of the Arizona Code of Judicial Conduct (Code) that restricted his political speech and campaign-related activities while a candidate for judicial office. While this action was pending, Wolfson lost the election. Because the Code applies only to judges and candidates for judicial office, and because Wolfson did not intend to seek judicial office in the next election, the district court dismissed the action as moot.
Wolfson now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.
Wolfson is a practicing attorney and member of the Arizona Bar. He has twice unsuccessfully sought election to judicial office in the State of Arizona. In 2006, Wolfson ran for the office of Kingman Precinct Justice of the Peace in Mohave County, Arizona. During his campaign, Wolfson filed an action alleging that several canons of the Code imposed unconstitutional restrictions on his political speech and campaign activities. Wolfson v. Brammer ( Wolfson I ), No. CV-06-2357 (Judge Stephen M. McNamee). Wolfson alleged that he wanted to engage in certain campaign-related activities and political speech but refrained from doing so, believing the activities to be prohibited by the challenged canons of the Code. In November 2006, Wolfson lost the election. It is Wolfson's belief that the restrictions on his campaign imposed by the Code contributed to his loss.
Shortly after his defeat, Wolfson decided that he would again seek an elected judicial office in the 2008 elections. In early 2007, Wolfson announced his candidacy for the office of Superior Court Judge, Division V, Mohave County, Arizona. At this time, Wolfson I was still pending.
In August 2007, however, the district court dismissed Wolfson I on the basis of prudential ripeness. The district court concluded that Wolfson should seek an advisory opinion from Arizona's Judicial Ethics Advisory Committee (Ethics Committee), a body empowered by the Arizona Supreme Court to render, upon request, advisory opinions to judges and judicial candidates. See Matter of Walker, 153 Ariz. 307, 736 P.2d 790, 795 (1987); Ariz. Sup.Ct. Rule 82(b)(1). An advisory opinion would clarify, to some degree, whether the campaign activities and political speech in which Wolfson wished to engage were prohibited by the Code. Following the district court's dismissal, Wolfson submitted a request to the Ethics Committee for a formal advisory opinion. In April 2008, the Ethics Committee responded to Wolfson's request by issuing Advisory Opinion 08-01.
With the advisory opinion in hand, Wolfson filed the present action in May 2008. Wolfson v. Brammer ( Wolfson II ), No. CV-08-8064 (Judge Frederick J. Martone). The allegations in the present action are similar to those in Wolfson I: Wolfson alleges that he wanted to engage in certain campaign-related activities and political speech but refrained, believing that the contemplated activities were prohibited by the Code.
First, Wolfson asserts that he wanted to solicit campaign contributions personally, at live appearances and speaking engagements, by making phone calls, and by signing his name to letters seeking donations. Wolfson argues that such solicitations are prohibited by canons 5A(1)(c) and 5B(2) () (collectively, the solicitation restrictions).
Second, Wolfson alleges that he wanted to endorse other candidates for office and to support their election campaigns. Wolfson asserts that canons 5A(1)(b) (revised rule 4.1(A)(2) & (3)) (the endorsement clause) and 5A(1)(d) (revised rule 4.1(A)(5)) (the campaigning prohibition) forbid a candidate for judicial office from endorsing other candidates or supporting their campaigns.
Third, Wolfson alleges that he wanted to answer questions from voters and to make presentations regarding his views on disputed legal and political issues, but was prohibited from doing so by canon 5B(1)(d)(i) (revised rule 4.1(A)(9)) (the pledges and promises clause) and canon 3E(1)(e) (revised rule 2.11(A)(5)) (the commits clause).
In November 2008, Wolfson lost the election. After Wolfson's defeat, the district court ordered him to submit a supplemental brief indicating whether he intended to seek judicial office in the next election. Wolfson replied that he did not. The district court concluded that the action was moot. The district court further held that the action did not meet the exception to mootness for actions “capable of repetition yet evading review.”
After the district court's dismissal, the Arizona Supreme Court adopted a new Code of Judicial Conduct. The revised Code, effective September 1, 2009, renumbers and recodifies the canons at issue, but does not alter the substance of the challenged canons, with one exception. In the new Code, the text of the so-called “commits clause” has been substantially revised. The complaint alleged that the commits clause (in addition to the pledges and promises clause) impermissibly restricted the speech of judicial candidates regarding disputed legal and political issues. Wolfson concedes that his claims regarding the commits clause have been rendered moot by the revision of that clause, and so those claims are no longer before us.
We review the district court's dismissal on the grounds of mootness de novo, as a dismissal for lack of subject matter jurisdiction. Rosemere Neighborhood Ass'n v. United States EPA, 581 F.3d 1169, 1172 (9th Cir.2009). We review factual determinations underlying the district court's decision for clear error. Am.-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir.1991). In this appeal, defendants invoke the additional jurisdictional defenses of standing and ripeness. Standing and ripeness, like the doctrine of mootness, predominantly present questions of law that we review de novo. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1124 (9th Cir.1996).
Article III of the United States Constitution limits federal court jurisdiction to “actual, ongoing cases or controversies.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). We lack jurisdiction “to decide moot questions or abstract propositions,” because “moot questions require no answer.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam) (internal quotation marks, citations and alterations omitted). A case or controversy must exist at all stages of review, not just at the time the action is filed. Alvarez v. Smith, --- U.S. ----, 130 S.Ct. 576, 580, 175 L.Ed.2d 447 (2009). A case may become moot after it is filed, “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Porter v. Jones, 319 F.3d 483, 489 (9th Cir.2003), quoting Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir.2001).
An exception to the mootness doctrine exists, however, where an action is “capable of repetition, yet evading review.” So. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). This exception permits actions “for prospective relief to go forward despite abatement of the underlying injury only in exceptional situations ... where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Lewis, 494 U.S. at 481, 110 S.Ct. 1249 (internal quotation marks and citation omitted).
Wolfson's action easily satisfies the first requirement, as a controversy evading review. “Election cases often fall within this...
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