Wolfson v. Concannon, 11–17634.

• Decision Date: 27 January 2016
• Docket Number: No. 11–17634.,11–17634.
• Citation: 811 F.3d 1176
• Parties: Randolph WOLFSON, Plaintiff–Appellant, v. Colleen CONCANNON; Louis Frank Dominguez; Peter J. Eckerstrom; George H.Foster; Gustavo Aragon, Jr.; Roger Barton ; S' Lee Hinshaw; David Stevens; J. Tyrell Taber; Lawrence F. Winthrop, in their official capacities as members of the Arizona Commission on Judicial Conduct; Anna Mary Glaab; Maret Vessella, Chief Bar Counsel of the State Bar of Arizona, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

811 F.3d 1176

Randolph WOLFSON, Plaintiff–Appellant,

v. Colleen CONCANNON; Louis Frank Dominguez; Peter J. Eckerstrom; George H.Foster; Gustavo Aragon, Jr.; Roger Barton ; S' Lee Hinshaw; David Stevens; J. Tyrell Taber; Lawrence F. Winthrop, in their official capacities as members of the Arizona Commission on Judicial Conduct; Anna Mary Glaab; 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 En Banc Sept. 9, 2015.

Decided Jan. 27, 2016.

Anita Y. Milanovich (argued) and James Bopp, Jr., The Bopp Law Firm, Terre Haute, IN, for Plaintiff–Appellant.

Paula S. Bickett (argued), Chief Counsel, Civil Appeals; Thomas C. Horne and Mark Brnovich, AZ, Attorneys General; Charles Grube, Senior Agency Counsel, Tempe, AZ, for Defendants–Appellees Commission Members.

Kimberly A. Demarchi and Peter R. Wand, Lewis and Roca LLP, Phoenix, AZ, for Defendant–Appellee Maret Vessella.

Igor V. Timofeyev, Paul Hastings LLP, Washington, D.C.; George W. Abele, Paul Hastings LLP, Los Angeles, CA; George T. Patton, Jr., Bose McKinney & Evans LLP, Washington, D.C.; Karl J. Sandstrom, Perkins Coie LLP, Washington, D.C.; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin, for Amicus Curiae Conference of Chief Justices.

Randolph Sherman and Robert Grass, Kaye Scholer LLP, New York, New York; Richard F. Ziegler and Justin O. Spiegel, Jenner and Block, New York, New York; Matthew Menendez and Alicia L. Bannon, New York, New York; Hayley Gorenberg, New York, New York; and J. Gerald Hebert and Megan P. McAllen, Washington, D.C., for Amicus Curiae Brennan Center for Justice at NYU School of Law, Arizona Judges' Association, American Judicature Society, Justice at Stake, Campaign Legal Center, and Lambda Legal Defense.

Robert W. Ferguson, Attorney General, and Alan D. Copsey, Deputy Solicitor General, Olympia, Washington, for Amicus Curiae States of Washington, Hawai'i, and Oregon.

Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, WILLIAM A. FLETCHER, RONALD M. GOULD, MARSHA S. BERZON, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, MORGAN CHRISTEN, and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge GOULD

; Concurrence by Judge BERZON.

OPINION

GOULD, Circuit Judge:

Plaintiff–Appellant Randolph Wolfson, an Arizona state judicial candidate in 2006 and 2008, challenges several provisions of the Arizona Code of Judicial Conduct regulating judicial campaigns. Specifically, Wolfson challenges: (1) the Personal Solicitation Clause, Rule 4.1(A)(6)¹ ; (2) the Endorsement Clauses, Rule 4.1(A)(2), (3), (4)² ; and (3) the Campaign Prohibition, Rule 4.1(A)(5)³ . Together, the clauses do not allow Wolfson, while running for judicial office, to personally solicit funds for his own campaign or for a campaign for another candidate or political organization, to publicly endorse another candidate for public office, to make speeches on behalf of another candidate or political organization, or to actively take part in any political campaign.

On May 21, 2008, Wolfson filed a complaint against the Commissioners of the Arizona Commission on Judicial Conduct and Chief Bar Counsel Robert B. Van Wyck (collectively "the Commission") in the United States District Court for the District of Arizona, alleging that the campaign regulations violated his First Amendment rights of freedom of speech and freedom of association.⁴

The district court disagreed and granted the Commission's motion for summary judgment.⁵ Wolfson v. Brammer, 822 F.Supp.2d 925, 931–32 (D.Ariz.2011). The district court held that strict scrutiny was inappropriate, and instead adopted the Seventh Circuit's approach of applying an intermediate level of scrutiny to assess judicial campaign regulations like Arizona's Rules. Id. at 929–30 (citing Siefert v. Alexander, 608 F.3d 974, 983–88 (7th Cir.2010) and Bauer v. Shepard, 620 F.3d 704, 713 (7th Cir.2010) ). Applying this level of scrutiny, the district court upheld Arizona's Rules as striking an appropriate "constitutional balance" between judicial candidates' First Amendment rights and the state's compelling interests in protecting litigants' due process rights and in ensuring the impartiality of the judiciary. See id. at 931–32.

Wolfson timely appealed. After an original panel hearing, Wolfson v. Concannon, 750 F.3d 1145 (9th Cir.2014), the case was ordered to be reheard en banc, Wolfson v. Concannon, 768 F.3d 999 (9th Cir.2014). Following this decision but before we reheard the case, the Supreme Court decided Williams–Yulee v. Florida Bar, ––– U.S. ––––, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015).

I

The First Amendment, applicable to the States through the Due Process Clause of the Fourteenth Amendment, says that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I ; McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336 n. 1, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Wolfson's appeal requests that we address: (1) the district court's application of intermediate scrutiny to assess Arizona's restrictions on judicial candidate speech; and (2) the impact of Williams–Yulee v. Florida Bar, ––– U.S. ––––, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015), on Arizona's Personal Solicitation Clause, Endorsement Clauses, and Campaign Prohibition.

II

We first address whether the district court was correct in adopting the Seventh Circuit's intermediate level of scrutiny to assess Arizona's judicial speech restrictions. We hold that, in light of Williams–Yulee, it was not.

The Supreme Court has repeatedly held that "[t]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339–40, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) ) (internal quotation marks omitted). This "requires us to err on the side of protecting political speech rather than suppressing it." Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 457, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007).

In Williams–Yulee, a plurality of the Supreme Court applied similar reasoning when addressing the level of scrutiny appropriate for assessing Florida's Code of Judicial Conduct Canon 7C( 1), a prohibition on personal solicitation during judicial campaigns. See 135 S.Ct. at 1664–65 ("As we have long recognized, speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection."). Picking up where the Court left off in Republican Party of Minn. v. White, 536 U.S. 765, 774–75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ( White I ) (assuming without deciding that strict scrutiny was appropriate for restrictions on judicial candidates' ability to announce their views on various legal issues), the Williams–Yulee plurality held that strict scrutiny was warranted. Williams–Yulee, 135 S.Ct. at 1665. "A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest." Id.

We agree with the plurality and hold that strict scrutiny is appropriate here. Even before Williams–Yulee, other courts had come to similar conclusions. See Carey v. Wolnitzek, 614 F.3d 189, 199–200 (6th Cir.2010) ; Republican Party of Minn. v. White, 416 F.3d 738, 748–49 (8th Cir.2005) (en banc) (White II ); Weaver v. Bonner, 309 F.3d 1312, 1315, 1322–23 (11th Cir.2002). Additionally, our holding is not limited to Arizona's Personal Solicitation Clause, which has no meaningful difference from Florida's Canon 7C(1).⁶ We also hold that strict scrutiny is similarly appropriate for Arizona's Endorsement Clauses and for its Campaign Prohibition. A decision otherwise would be contrary to the Supreme Court's broad reasoning in Williams–Yulee, which addressed not just a prohibition on personal requests for campaign contributions, but state restrictions on judicial candidate speech generally. See Williams–Yulee, 135 S.Ct. at 1665. A decision otherwise also would put us in conflict with the approach taken by the Sixth, Eighth, and Eleventh Circuits.

III

Federal, state, and local governments have struggled to meet strict scrutiny when defending speech restrictions.See, e.g., Reed v. Town of Gilbert, –––U.S. ––––, 135 S.Ct. 2218, 2231–32, 192 L.Ed.2d 236 (2015) ; United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813–14, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ; OSU Student All. v. Ray, 699 F.3d 1053, 1062–64 (9th Cir.2012) ; United States v. Alvarez, 617 F.3d 1198, 1215–18 (9th Cir.2010). To overcome such a high standard of review, the government is required to prove that "the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ " Citizens United, 558 U.S. at 340, 130 S.Ct. 876 (quoting Wis. Right to Life, 551 U.S. at 464, 127 S.Ct. 2652 ). Following Williams–Yulee,⁷ we hold that Arizona meets that standard for all of the challenged restrictions on judicial candidate speech.

A. The Personal Solicitation Clause

Wolfson contends that Arizona's Personal Solicitation Clause, which prohibits him, while running for judicial office, from personally soliciting funds for his own campaign, fails strict scrutiny. He argues that Arizona's interest is not narrowly tailored, and that Williams–Yulee does not control our decision because Florida and Arizona have different interests in upholding their respective personal solicitation prohibitions.

1. Compelling Interest

Wolfson does not contend that Arizona lacks a compelling interest behind this solicitation prohibition. Instead, he argues that Arizona's interest is significantly different than Florida's interest in Canon 7C(1), making the Court's strict scrutiny analysis in Williams–Yulee inapplicable to Arizona's Clause. Attempting to distinguish the two states'...