Friday, May 9, 2014

READ: Arizona's Judicial Code of Conduct Violates 1st Amendment Rights of Attorney RUNNING For Judgeship, Rules 9th Circuit

Portions of the Arizona Code of Judicial Conduct violate the First Amendment constitutional rights of candidates who are running for a spot on the bench by limiting their campaign activities, according to the 9th Circuit Court of Appeals.

The case was brought in 2008 in federal court by Randolph Wolfson, who had unsuccessfully campaigned for a judgeship in Mohave County (only Maricopa, Pima and Pinal counties do not have judicial elections for Superior Court).  He challenged five clauses of the Code of Judicial Conduct, because he believed it prevented him from soliciting campaign contributions at speaking appearances and sign donation solicitation letters. The rule states that "a judge or judicial candidate shall not do..." make speeches for political organizations or other candidates, endorse/oppose other candidates, solicit contributions for others, make contributions totaling more than half of the allowed cumulative limit(!), actively take part in other campaigns, or solicit/accept funds outside of the candidate's allowed committee. (non-inclusive list, emphasis added, full rule below*)

The three judge panel today agreed unanimously that the 1st three clauses are unconstitutional as applied to candidates.  They struck the last two clauses on a 2-1 majority.

Wolfson, who is represented by the well-known election law firm of James Bopp, asked the Court to find that the Code also violated sitting judges' constitutional rights; however, the Court declined the invitation to broaden the opinion - especially given the distinctions between a non-judge candidate (who might lose and never become a judge) and a candidate already sitting on the bench.  ("Our decision to limit our review to non-judge candidates is ultimately based on judicial restraint.")

The Court agreed to apply strict scrutiny to review the challenged clauses, and the majority found that "the lack of narrow tailoring is obvious here."  

Interestingly - and, twice-cleverly^ - the opinion twice cites an U.S. Supreme Court opinion from 2002 (Republican Party of Minnesota v. White, 536 U.S. 765) and specifically notes that retired Justice Sandra Day O'Connor concurred.  Arizonan O'Connor is a fervent advocate for eliminating judicial elections, and the court included this concluding quote from her concurring opinion:
"(T)he State has voluntarily taken on the risks to judicial bias described above. As a result, the State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."

(This guest article was contributed by Phoenix attorney Paul Weich; headline and links added by Arizona's Politics.)
(h/t to Election Law Blog)

* The full text of the relevant canon provides:
(A) A judge should not:
(1) act as a leader or hold any office in a political
(2) make speeches for a political organization or
candidate, or publicly endorse a candidate for public
office; or
(3) solicit funds for, pay an assessment to, or make a
contribution to a political organization or candidate, or
attend or purchase a ticket for a dinner or other event
sponsored by a political organization or candidate.
(B) A judge should resign the judicial office if a judge
becomes a candidate in a primary or general election
for any office.  
(C) A judge should not engage in any other political
activity. This provision does not prevent a judge from
engaging in activities described in Canon 4.
Administrative Office of U.S. Courts, Code of Judicial Conduct for United
States Judges, Canon 5 (2011).
^ Twice-cleverly because that case was also successfully argued by Bopp.

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