Randolph Wolfson v. Colleen Concannon , 750 F.3d 1145 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDOLPH WOLFSON, No. 11-17634
Plaintiff-Appellant,
D.C. No.
v. 3:08-cv-08064-
FJM
COLLEEN CONCANNON, in her
official capacity as member of the
Arizona Commission on Judicial OPINION
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
2 WOLFSON V. CONCANNON
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.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
July 11, 2013—San Francisco, California
Filed May 9, 2014
Before: Richard A. Paez, Marsha S. Berzon,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Paez;
Concurrence by Judge Berzon;
Dissent by Judge Tallman
WOLFSON V. CONCANNON 3
SUMMARY*
Civil Rights
The panel reversed the district court’s grant of summary
judgment in favor of Arizona state officials and remanded an
action brought by an unsuccessful candidate for judicial
office in Mohave County, Arizona, who alleged that several
provisions of the Arizona Code of Judicial Conduct,
restricting judicial candidate speech, violated the First
Amendment.
The panel emphasized that its analysis of the challenged
provisions was based on plaintiff’s status as a non-judge
candidate. Applying strict scrutiny, the panel held that
the Code’s solicitation clause, Rule 4.1(A)(6), was
unconstitutional as applied to non-judge judicial candidates
because it restricted speech that presented little to no risk of
corruption or bias towards future litigants and was not
narrowly tailored to serve those state interests. The panel
held that the political activities clauses of the Code, Rules
4.1(A)(2)–(5), were not sufficiently narrowly tailored to serve
the state’s interest in an impartial judiciary, and were thus
unconstitutional restrictions on the political speech of non-
judge candidates.
Concurring, Judge Berzon stated that the panel’s opinion
addressed the constitutionality of certain provisions of the
Arizona Code of Judicial Conduct only as they apply to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 WOLFSON V. CONCANNON
judicial candidates who, like plaintiff, had not yet ascended
to the bench.
Dissenting in part, Judge Tallman stated that Rules
4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing
others), and (4) (soliciting money for others), were
constitutional because they were narrowly tailored to serve
the state’s compelling interest in maintaining judicial
impartiality and its appearance.
COUNSEL
Anita Y. Woudenberg (argued), The Bopp Law Firm, Terre
Haute, Indiana, for Plaintiff-Appellant.
Charles A. Grube (argued), Assistant Attorney General,
Arizona Attorney General’s Office, Phoenix, Arizona, 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, Arizona, for Defendant-
Appellee Maret Vessella, Chief Bar Counsel of the State Bar
of Arizona.
WOLFSON V. CONCANNON 5
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.
6 WOLFSON V. CONCANNON
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
1
Arizona Supreme Court and appellate court judges and judicial officers
in counties with a population greater than 250,000 (and smaller counties
that vote to do so) use a system of merit selection with retention elections.
Ariz. Const. art. VI, §§ 37, 38, 40.
2
Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of Jud.
Conduct (2009). After Wolfson filed his complaint, the Code was revised,
effective September 1, 2009. The revision to the Code recodified and
renumbered the Rules, but did not alter the substance of the challenged
Rules at issue in this appeal. See Wolfson v. Brammer, 616 F.3d 1045,
1053 (9th Cir. 2010) (Wolfson I).
3
“An unsuccessful judicial candidate who is a lawyer and violates this
code may be subject to discipline under applicable court rules governing
lawyers.” Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of
Jud. Conduct, Canon 4, cmt. 2 (2009).
4
Wolfson alleges that he wanted personally to solicit campaign
contributions at live appearances and speaking engagements, and by
making phone calls and signing his name to letters seeking donations.
WOLFSON V. CONCANNON 7
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
Wolfson I, 616 F.3d at 1052. He also alleges that he wanted to endorse
other candidates for office and support their election campaigns. Id.
5
Wolfson voluntarily dismissed all claims against a third defendant, the
Arizona Supreme Court Disciplinary Commission. Wolfson v. Brammer,
822 F. Supp. 2d 925, 926–27 (D. Ariz. 2011) (Wolfson II).
8 WOLFSON V. CONCANNON
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
6
Arizona’s Code closely tracks the American Bar Association’s Model
Code of Judicial Conduct, Rule 4.1 (2011).
WOLFSON V. CONCANNON 9
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 (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
10 WOLFSON V. CONCANNON
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.
WOLFSON V. CONCANNON 11
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 F.3d 935, 940 (9th Cir. 1997).
B.
Wolfson seeks to invalidate the challenged Rules on their
face, including as to sitting judges campaigning for retention
or reelection. In Wolfson I, however, we held that “Wolfson
cannot assert the constitutional rights of judges when he is
not, and may never be, a member of that group.” 616 F.3d at
1064. Nonetheless, although we reject the Arizona
defendants’ argument, which the district court adopted, that
the balancing test applicable to government employee speech
cases also applies to sitting judges and thus fairly extends to
non-judge candidates campaigning for office, we must
establish the scope of our review of the challenged Rules.
We decline to adopt the district court’s approach because
such reasoning requires a series of unnecessary constitutional
decisions.7 Rather, our analysis of the challenged Rules is
7
We find no Supreme Court authority extending the limited First
Amendment protection for public employee speech to judicial candidate
speech, and we decline to answer the hypothetical question of whether
sitting judges are sufficiently similar to rank-and-file government
employees to warrant such application. See, e.g., White I, 536 U.S at 796
(Kennedy, J., concurring). We also find no Supreme Court authority
extending the limited First Amendment protection for employee speech to
a private citizen who is not currently a government employee but merely
seeks to become one. Id. (“Petitioner Gregory Wersal was not a sitting
12 WOLFSON V. CONCANNON
based on Wolfson’s status as a non-judge candidate. While
the Rules apply to judges whether or not a judge is actively
campaigning for retention or reelection, they only apply to
non-judge candidates during an election campaign for judicial
office.8 There is a meaningful distinction in how the Rules
actually apply to judges versus non-judge candidates that may
warrant distinct levels of scrutiny. Regulated non-judge
speech only takes place during a campaign. As noted above,
political speech is subject to the highest degree of First
Amendment protection. Because Wolfson’s desired speech
would only take place in the context of a political campaign
for judicial office, we do not decide whether the restrictions
as applied to judges—whether campaigning or not—fit into
the “narrow class of speech restrictions” that may be
constitutionally permissible if “based on an interest in
allowing governmental entities to perform their functions.”
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 341
(2010).
We are not persuaded that “fundamental fairness,” see
Wolfson II, 822 F. Supp. 2d at 929, warrants making an
advisory decision about the constitutional speech rights of
judges who are not presently before us and whose rights
judge but a challenger; he had not voluntarily entered into an employment
relationship with the State or surrendered any First Amendment rights. His
speech may not be controlled or abridged in this manner.”). Nor do we
take a position on a question explicitly unresolved by the Supreme Court
in White I: whether the First Amendment “requires campaigns for judicial
office to sound the same as those for legislative office.” Id. at 783
(majority opinion).
8
“When a person becomes a judicial candidate, this canon becomes
applicable to his or her conduct.” Ariz. Rev. Stat. Ann. § 17A, Sup. Ct.
Rules, Rule 81, Code of Jud. Conduct, Canon 4, cmt. 2 (2009).
WOLFSON V. CONCANNON 13
Wolfson cannot assert, Wolfson I, 616 F.3d at 1064. Under
strict scrutiny, see Part III.A, the proponents of a speech
regulation must establish a compelling state interest served by
the regulation. Neither the Commission nor the State Bar
Counsel has argued that Arizona has a compelling state
interest in applying the same election regulations to
incumbent sitting judges as to candidates who are not sitting
judges—only that such an equal application is principled,
logical, and fair.
Our decision to limit our review to non-judge candidates
is ultimately based on judicial restraint. We need not decide
today what restrictions on judges’ speech are constitutionally
justified by the interest in allowing the judiciary to function
optimally, nor are we squarely presented with that question.
We neither “‘anticipate a question of constitutional law in
advance of the necessity of deciding it’ nor ‘formulate a rule
of constitutional law broader than is required by the precise
facts to which it is to be applied.’” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008)
(quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring)). The only constitutional question
we address is whether the challenged Rules violate the First
Amendment rights of non-judge candidates.
III.
A.
Strict scrutiny applies to this First Amendment challenge.
The regulations in question are content- and speaker-based
restrictions on political speech, which receives the most
stringent First Amendment protection. Republican Party of
Minn. v. White, 416 F.3d 738, 748–49 (8th Cir. 2005) (White
14 WOLFSON V. CONCANNON
II); see also Eu v. San Francisco Cnty. Democratic Cent.
Comm., 489 U.S. 214, 223 (1989) (“[T]he First Amendment
has its fullest and most urgent application to speech uttered
during a campaign for political office.” (internal quotation
marks omitted)). We recently applied strict scrutiny to
another state statute regulating judicial elections because it
was, “on its face, a content-based restriction on political
speech and association [which] thereby threaten[ed] to
abridge a fundamental right.” Sanders Cnty. Republican
Cent. Comm. v. Bullock, 698 F.3d 741, 746 (9th Cir. 2012)
(holding unconstitutional a ban on political party
endorsement of judicial candidates).
Content-based restrictions on speech receive strict
scrutiny. See United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 813 (2000). Here, the Rules at issue
censor speech based on content in the most
basic of ways: They prevent candidates from
speaking about some subjects [who they
endorse or on whose behalf they can speak if
that person is running for office or if the entity
is a political party] . . . ; and they prevent
candidates from asking for support in some
ways (campaign funds) but not in others (a
vote, yard signs).
Carey v. Wolnitzek, 614 F.3d 189, 198–99 (6th Cir. 2010).
The canons do not address any of the “categorical carve-outs”
of proscribable speech. See id. at 199. Nor are they the types
of regulations to which the Supreme Court has applied a less
rigorous standard of review, such as time, place and manner
restrictions, commercial speech, or expressive conduct. Id.
WOLFSON V. CONCANNON 15
Every sister circuit except the Seventh that has considered
similar regulations since White I has applied strict scrutiny as
the standard of review. See Wersal v. Sexton, 674 F.3d 1010,
1019 (8th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 209
(2012); Carey, 614 F.3d at 198–99; White II, 416 F.3d at 749,
764–65; Weaver v. Bonner, 309 F.3d 1312, 1319 (11th Cir.
2002). We are not persuaded by the Seventh Circuit’s
approach, which the Arizona defendants urge us to adopt by
asking us to affirm the district court.
The Seventh Circuit treated the solicitation ban in Siefert
as a “campaign finance regulation” and applied the “closely
drawn scrutiny” framework of Buckley v. Valeo, 608 F.3d at
988 (citing 424 U.S. 1 (1976) (per curiam)). The court
treated the solicitation ban like a restriction on a campaign
contribution—though by default, because the solicitation ban
was not an expenditure restriction. Id. Contrary to the
Arizona defendants’ argument, the solicitation clause at issue
here is not a restriction on a campaign contribution within the
meaning of Buckley, 424 U.S. at 26–27. Arizona’s
solicitation ban does nothing at all to limit contributions to a
judicial candidate’s campaign—either in amount or from
certain persons or groups. Contribution restrictions, like
those at issue in Buckley, restrict the speech of potential
contributors. 424 U.S. at 21–22. The Rule at issue here
restricts only the solicitation for the contributions—the
speech of the candidate.9 Indeed, Buckley says nothing at all
9
See also Carey, 614 F.3d at 200 (“[T]his argument [that the solicitation
clause is akin to a restriction on political donation subject to less rigorous
scrutiny] gives analogy a bad name. The solicitation clause does not set
a contribution limit, as in McConnell and similar cases. It flatly prohibits
speech, not donations, based on the topic (solicitation of a contribution)
and speaker (a judge or judicial candidate)—precisely the kind of content-
16 WOLFSON V. CONCANNON
about solicitation, other than to note that candidates will ask
for contributions. Buckley’s framework is inapposite here.10
Considering a rule prohibiting a judge or judicial
candidate from making endorsements or speaking on behalf
of a partisan candidate or platform, the Seventh Circuit
applied “a balancing approach” derived from a line of cases
determining the speech rights of government employees.
Siefert, 608 F.3d at 983–87. As noted in Part II.B, here we
consider only the speech rights of Wolfson as a private citizen
and judicial candidate—not yet, and perhaps never, a
government employee. “[Wolfson] [i]s not a sitting judge but
a challenger; he ha[s] not voluntarily entered into an
employment relationship with the State or surrendered any
First Amendment rights. His speech may not be controlled or
abridged in this manner.” See White I, 536 U.S at 796
(Kennedy, J., concurring). For the reasons discussed above,
we decline to extend the rationale from the employee-speech
based regulations that traditionally warrant strict scrutiny.” (internal
citation omitted) (emphasis in original)).
10
Nor are we persuaded by the Commission defendants’ argument that
the rules prohibiting solicitation “do not involve core political speech,”
and that “[w]hen a candidate says ‘give me money,’ he adds nothing to the
full and fair expression of ideas that the First Amendment protects.” This
is a content-based distinction of pure speech that is not excepted from full
First Amendment protection. See, e.g., Int'l Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 677 (1992) (“It is uncontested
that the solicitation at issue in this case is a form of speech protected under
the First Amendment.”); Vill. of Schaumburg v. Citizens for a Better Env't,
444 U.S. 620, 629 (1980) (“[S]oliciting funds involves interests protected
by the First Amendment's guarantee of freedom of speech.”); Bates v.
State Bar of Ariz., 433 U.S. 350, 363 (1977) (observing that the First
Amendment protects speech “in the form of a solicitation to pay or
contribute money”). This argument is wholly without merit.
WOLFSON V. CONCANNON 17
cases to apply a lower level of scrutiny to the restrictions on
Wolfson’s First Amendment rights during a judicial
campaign.
The Seventh Circuit also reasoned that a balancing
approach was appropriate because endorsements are “a
different form of speech” outside of “core” political speech
thus having “limited communicative value,” and when judges
make endorsements they are “speaking as judges, and trading
on the prestige of their office to advance other political ends.”
Siefert, 608 F.3d at 983, 984, 986.11 We do not hold the same
view of endorsements by non-judge candidates. In Sanders
County, we held that endorsements of judicial candidates are
no different from other types of political speech: “Thus,
political speech—including the endorsement of candidates for
office—is at the core of speech protected by the First
Amendment.” 698 F.3d at 745. Similarly, endorsements by
candidates for office is also political speech protected by the
First Amendment. Moreover, endorsements made by a non-
judge candidate cannot trade on the prestige of an office that
candidate does not yet hold.
We share the Seventh Circuit’s concerns about protecting
litigants’ due process rights, which we recognize as a
compelling state interest. That court reasoned that because
“restrictions on judicial speech may, in some circumstances,
be required by the Due Process Clause,” states could regulate
even political speech by judges if the regulations served the
state’s interest in protecting litigants’ constitutional right to
due process. Siefert, 608 F.3d at 984. We agree that due
11
In this vein, the Commission defendants argue that endorsements have
“limited communicative value” other than the desire to be a political
powerbroker.
18 WOLFSON V. CONCANNON
process concerns are paramount, but this concern does not
justify a categorically lower level of constitutional scrutiny
for political speech by judicial candidates. Applying strict
scrutiny, we can adequately assess whether regulations on a
judicial candidate’s political speech are narrowly tailored to
serve the state’s compelling interest in protecting litigants’
due process rights. Narrow tailoring is most appropriate.
Although we could scarcely imagine a more compelling state
interest, we also recognize that “due process” concerns arise
not in the ether, but “only . . . in the context of judicial
proceedings.” See Michelle T. Friedland, Disqualification or
Suppression: Due Process and the Response to Judicial
Campaign Speech, 104 Colum. L. Rev. 563, 613 (2004).12
We are mindful of the fact that we should endeavor to protect
litigants from even the “potential for due process violations”
or the “probability of unfairness.” See White I, 536 U.S. at
815–16 (Ginsburg, J., dissenting) (emphasis added) (internal
quotation marks omitted). The potential for and probability
of a problem that in actuality arises only in real cases does
not, however, translate into a generalized concern about the
appearance or reality of an impartial judiciary warranting a
lower level of scrutiny. Indeed, the Eighth Circuit identified
the flaw in this argument.
It is the general practice of electing judges,
not the specific practice of judicial
campaigning, that gives rise to impartiality
concerns because the practice of electing
judges creates motivations for sitting judges
12
“Even if a judicial candidate campaigned solely on the basis of his
hatred and vindictiveness toward Joe Smith and the candidate were
elected, no due process problem would be presented if Joe Smith were
never involved in litigation or other proceedings before that judge.” Id.
WOLFSON V. CONCANNON 19
and prospective judges in election years and
non-election years to say and do things that
will enhance their chances of being elected.
Weaver, 309 F.3d at 1320; accord White I, 536 U.S. at 792
(O’Connor, J., concurring) (“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.”).13 Moreover, there is an equally compelling state
interest in the free flow of information during a political
campaign. “Deciding the relevance of candidate speech is the
right of the voters, not the State.” White I, 536 U.S. at 794
(Kennedy, J., concurring). Whether and to what extent a
judicial candidate chooses to engage in activities such as
endorsing and making speeches on behalf of other candidates,
fundraising for or taking part in other political campaigns, or
asking for contributions is information that the electorate can
use to decide whether he or she is qualified to hold judicial
office. “The vast majority of states have judicial elections
because of a belief that judges as government officials should
be accountable to their constituents. By making this choice,
the states, by definition, are turning judges into politicians.”
Erwin Chemerinsky, Restrictions on the Speech of Judicial
Candidates Are Unconstitutional, 35 Ind. L. Rev. 735, 736
13
See also Geary v. Renne, 911 F.2d 280, 294 (9th Cir. 1990) (en banc)
(Reinhardt, J., concurring), vacated on other grounds, 501 U.S. 312
(1991) (“The State of California cannot have it both ways. If it wants to
elect its judges, it cannot deprive its citizens of a full and robust election
debate. . . . Whether a judicial candidate wishes to make his views known
on those issues during the electoral process is another matter. So is the
question whether it is proper for him to do so. But those are all problems
inherent in California’s decision to conduct judicial elections. If
California wishes to elect its judges, it must allow free speech to prevail
in the election process.”).
20 WOLFSON V. CONCANNON
(2002). Along with knowing a candidate’s views on legal or
political issues, voters have a right to know how political their
potential judge might be.14 To the extent states wish to avoid
a politicized judiciary, they can choose to do so by not
electing judges.
B.
Under strict scrutiny, the Arizona defendants have the
burden to prove that the challenged Rules further a
compelling interest and are narrowly tailored to achieve that
interest. Citizens United, 558 U.S. at 340. First we consider
Arizona’s state interests. Then, we analyze whether the
solicitation clause (Rule 4.1(A)(6)) and the political activities
clauses (Rules 4.1(A)(2)–(5)) are narrowly tailored to serve
those interests.
1.
Every court to consider the issue has affirmed that states
have a compelling interest in the appearance and actuality of
an impartial judiciary. See, e.g., White I, 536 U.S. at 775–76.
The meaning of “impartiality” is lack of bias for or against
either party to a case. Id. at 775. This definition accords with
the idea that due process violations arise only in case-specific
14
See, e.g., Michael R. Dimino, Pay No Attention To That Man Behind
The Robe: Elections, The First Amendment, and Judges As Politicians,
21 Yale L. & Pol’y Rev. 301, 356 (2003) (“[S]tates that have rejected the
federal model of judicial independence have necessarily accepted (if not
celebrated) that some level of electoral accountability will play a part in
their judges’ decisions. Accordingly, because there is nothing ‘corrupt’
about the functioning of democracy, limiting speech so as to conceal the
part that electoral politics does play in judicial decisions cannot be
constitutionally justified.”).
WOLFSON V. CONCANNON 21
contexts. The Supreme Court has also recognized that states
have a compelling interest in preventing corruption or the
appearance of corruption through campaign finance
regulations. Buckley, 424 U.S. at 26–27; see also Citizens
United, 558 U.S. at 357. Thus, we recognize that Arizona has
a compelling interest in an uncorrupt judiciary that appears to
be and is impartial to the parties who appear before its judges.
The Arizona defendants also argue for two other
compelling interests that we do not find persuasive. First, the
Commission defendants argue that “the State has a
compelling interest in preventing candidates (who will after
all be the next judges if and when elected) from trampling on
the interests of impartiality and public confidence.” This
argument is, essentially, that states have a compelling interest
in regulating candidates’ speech; we do not find an interest in
regulating speech per se to be compelling. We do agree,
however, that states have a compelling interest in maintaining
public confidence in the judiciary. In a similar vein, State
Bar Counsel argues that Arizona has a compelling interest in
avoiding “judicial campaign abuses that threaten to imperil
public confidence in the fairness and integrity of the nation’s
elected judges.” But, as explained above, any imperilment of
public confidence has its roots in the very nature of judicial
elections, and not in the speech of candidates who must
participate in those elections to become judges. See White I,
536 U.S. at 792 (O’Connor, J., concurring).15 If a judicial
candidate wishes to engage in politicking to achieve a seat on
15
The reality is that the Rules do not “change the circumstances or
pressures that cause the candidates to want to make [prohibited]
statements,” and that “[j]udicial campaign speech codes are therefore
much more about maintaining appearances by hiding reality than about
changing reality.” Friedland, 104 Colum. L. Rev. at 612.
22 WOLFSON V. CONCANNON
the bench, keeping the public ignorant of that fact may
conceal valuable information about how well that candidate
may uphold the office of an ideally impartial, apolitical
adjudicator.
Second, the Commission defendants argue that Arizona
has a compelling interest in “preventing judges and judicial
candidates from using the prestige of their office or potential
office for purposes not related to their judicial duties.” We
are not persuaded by this argument as applied to non-judge
candidates, who cannot abuse the prestige of an office they do
not yet and may never hold.
2.
The solicitation clause prohibits a judicial candidate from
“personally solicit[ing] or accept[ing] campaign contributions
other than through a campaign committee authorized by Rule
4.4.” Rule 4.1(A)(6).16 The Code defines “personally solicit”
as “a direct request made by a judge or a judicial candidate
for financial support or in-kind services, whether made by
letter, telephone, or any other means of communication.”
Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of
Jud. Conduct, “Terminology” (2009). We hold that Rule
16
Wolfson argues that Rule 4.1(A)(4) is also a restriction on solicitation,
because he wishes to solicit contributions to his own campaign committee,
which he considers to be a “political organization.” But the Code
explicitly carves out a judicial candidate’s campaign committee from the
definition of “political organization.” See Ariz. Rev. Stat. Ann. § 17A,
Sup. Ct. Rules, Rule 81, Code of Jud. Conduct, “Terminology” (2009).
Therefore, we analyze Rule 4.1(A)(4) alongside (A)(2)–(3) and (5),
because it prohibits a judicial candidate from soliciting funds on behalf of
or donating to a specific political organization or candidate—classic
political campaigning activities.
WOLFSON V. CONCANNON 23
4.1(A)(6) is unconstitutional as applied to non-judge judicial
candidates because it restricts speech that presents little to no
risk of corruption or bias towards future litigants and is not
narrowly tailored to serve those state interests.
Arizona’s sweeping definition of “personally solicit”
encompasses methods not likely to impinge on even the
appearance of impartiality. The Sixth Circuit recently
invalidated a similar clause in Kentucky that also extended
beyond one-on-one, in-person solicitations to group
solicitations, telephone calls, and letters. Carey, 614 F.3d at
204. We agree with our sister court’s cogent analysis of this
issue. “[I]ndirect methods of solicitation [such as speeches to
large groups and signed mass mailings] present little or no
risk of undue pressure or the appearance of a quid pro quo.”
Id. at 205. The clauses are also underinclusive: a personal
solicitation by a campaign committee member who may be
the candidate’s best friend or close professional associate
(such as a law practice partner) is likely to have a greater risk
for “coercion and undue appearance” than a signed mass
mailing or request during a speech to a large group. Id.
Moreover, the Code does not prohibit a candidate’s campaign
committee from disclosing to the candidate the names of
contributors and solicited non-contributors.
That omission suggests that the only interest
at play is the impolitic interpersonal dynamics
of the candidate’s request for money, not the
more corrosive reality of who gives and how
much. If the purported risk addressed by the
clause is that the judge or candidate will treat
donors and non-donors differently, it is
knowing who contributed and who balked that
24 WOLFSON V. CONCANNON
makes the difference, not who asked for the
contribution.
Id.17 The lack of narrow tailoring is obvious here: if
impartiality or absence of corruption is the concern, what is
the point of prohibiting judges from personally asking for
solicitations or signing letters, if they are free to know who
contributes and who balks at their committee’s request?
Wersal teaches that the in-person “‘ask’ is precisely the
speech [a state] must regulate to maintain its interest in
impartiality and the appearance of impartiality” because of
the greater risk of a quid pro quo. 674 F.3d at 1029–31.
Indeed, we agree with State Bar Counsel’s argument that “the
very act of asking for money, personally, creates the
impression that judge (and justice) may be for sale.” But the
clause here sweeps more broadly. It is not necessary “to
decide today whether a State could enact a narrowly tailored
solicitation clause—say, one focused on one-on-one
solicitations or solicitations from individuals with cases
pending before the court—only that this clause does not do so
narrowly.” Carey, 614 F.3d at 206 (emphasis in original).18
17
The lack of a non-disclosure-to-the-candidate requirement in
Arizona’s Code presents the opposite situation of that in White II, where
appellants challenged the fact that they could not solicit from large groups
or via signed appeal letters. The Eighth Circuit found that the prohibition
on disclosing to a candidate who contributed and who rebuffed meant the
clause was “barely tailored at all to serve [the end of impartiality as to
parties in a particular case]” or an interest in “open-mindedness.”
416 F.3d at 765–66.
18
Indeed, the Eighth Circuit upheld the Minnesota solicitation clause
even under strict scrutiny precisely because the challenged clause only
prohibited direct, in-person solicitation, while the rest of Minnesota’s
Code of Judicial Conduct permitted solicitation of groups and of a judge’s
intimates. Wersal, 674 F.3d at 1028–29. That court distinguished the
WOLFSON V. CONCANNON 25
The solicitation clause is invalid as applied to non-judge
candidates.
3.
We analyze Rules 4.1(A)(2)–(5) as the “political
activities” clauses. Judicial candidates are prohibited from
speechifying for another candidate or organization, endorsing
or opposing another candidate, fundraising for another
candidate or organization, or actively taking part in any
political campaign other than his or her own. These clauses
are also not sufficiently narrowly tailored to serve the state’s
interest in an impartial judiciary, and are thus unconstitutional
restrictions on political speech of non-judge candidates for
judicial office.
Rules 4.1(A)(2)–(4)—prohibiting speechifying,
endorsements, and fundraising—present the closest question.
There is an argument that these rules are sufficiently narrowly
tailored to be constitutional because they curtail speech that
evidences bias towards a particular (potential) party within
the scope of White I: the candidate or political organization
endorsed or spoken of favorably by the judicial candidate. A
plurality of the Eighth Circuit, sitting en banc, upheld a nearly
identical Minnesota prohibition on a judge or judicial
candidate endorsing “another candidate for public office”
because such an endorsement “creates a risk of partiality
outcome from that in White II, where an earlier version of the state’s Code
of Judicial Conduct prohibited group solicitation and banned judges and
candidates from signing fund appeal letters. Id. at 1029. Direct personal
solicitation “gives rise to a greater risk of quid pro quo,” id., but the scope
of Arizona’s solicitation clause is broader than Minnesota’s and we must
consider all of the affected speech.
26 WOLFSON V. CONCANNON
towards the endorsed party and his or her supporters.”
Wersal, 674 F.3d at 1024, 1025. The plurality concluded that
the clause was narrowly tailored to serve the state’s
compelling interest in the appearance and reality of an
impartial judiciary. Id. at 1028.19
Nonetheless, we hold that these regulations are
underinclusive because they only address speech that occurs
beginning the day after a non-judge candidate has filed his
intention to run for judicial office.20 The day before a private
citizen becomes a judicial candidate, he or she could have
been a major fundraiser or campaign manager for another
19
Judge Loken, joined by Judge Wollman, concurred in the result but
agreed with the plurality’s judgment on the separate ground that the
endorsement clause served the distinct compelling state interest in
“protecting the political independence of its judiciary.” Id. at 1033 (“An
endorsement links the judicial candidate’s political fortunes to a particular
person, who may then come to hold office in a coordinate branch of
government. This is antithetical to any well considered notion of judicial
independence—that we are a ‘government of laws, not of men.’”) (Loken,
J., concurring.).
20
The Wersal plurality concluded that the Minnesota endorsement
clause was not underinclusive but only by reference to what it restricted:
“endorsements for other candidate[s] for public office.” Id. at 1027
(internal quotation marks omitted) (emphasis added). That plurality noted
that a separate clause in Minnesota’s Code of Judicial Conduct prevented
a judge or judicial candidate from making any statement that would
“reasonably be expected to affect the outcome or impair the fairness of a
matter pending or impending in any court,” and reasoned that the two
clauses read together meant that a judicial candidate was prevented from
making any biased statement about a party or potential party, whether or
not the target of the speech had become a candidate for public office at the
time of the statement. Id. We are concerned about the temporal
dimension of a non-judge candidate’s speech, rather than the candidate
status of its target.
WOLFSON V. CONCANNON 27
elected official, or may have donated large sums of money to
another’s political campaign, or may have himself been an
elected politician. The Supreme Court confronted a similar
underinclusive issue in White I. There, in explaining why the
“announce clause” was underinclusive, the Court said
In Minnesota, a candidate for judicial office
may not say “I think it is constitutional for the
legislature to prohibit same-sex marriages.”
He may say the very same thing, however, up
until the very day before he declares himself
a candidate, and may say it repeatedly (until
litigation is pending) after he is elected. As a
means of pursuing the objective of
open-mindedness that respondents now
articulate, the announce clause is so woefully
underinclusive as to render belief in that
purpose a challenge to the credulous.
White I, 536 U.S. at 779–80. Here too, Rules 4.1(A)(2)–(4)
are “woefully underinclusive” because they only address
speech made after a candidate has filed his intention to enter
the race. Id. at 780. Contrary to the dissent, we fail to see
why this same concern does not apply here.
Moreover, the Arizona defendants have failed to show
why the less restrictive remedy of recusal of a successful
candidate from any case in which he or she was involved in
a party’s political campaign or gave an endorsement is an
unworkable alternative. “[B]ecause restricting speech should
be the government’s tool of last resort, the availability of
obvious less-restrictive alternatives renders a speech
restriction overinclusive.” Valle Del Sol Inc. v. Whiting,
709 F.3d 808, 826 (9th Cir. 2013). Here, it seems that if a
28 WOLFSON V. CONCANNON
candidate indeed becomes a judge, a less restrictive means of
addressing the state’s concerns would be to require recusal in
cases where the new judge’s bias against or in favor of a party
is clear.21 Unlike the dissent and the plurality of the Eighth
Circuit in Wersal, we decline to address hypothetical
situations involving potential frequent litigants and single-
judge counties. See Dissent at 46; Wersal, 674 F.3d at
1027–28 (posing the hypothetical that “candidates and judges
would be free to endorse individuals who would become
frequent litigants in future cases, such as county sheriffs and
prosecutors”). The Arizona defendants have not offered any
evidence nor argued that these concerns exist, cf. Siefert,
608 F.3d at 987, though they bear the burden of
demonstrating that the Rules survive strict scrutiny. We
decline to speculate on whether such a problem would exist
in the Arizona judicial elections affected by these Rules.
We hold Rule 4.1(A)(5), which prohibits a judicial
candidate from “actively tak[ing] part in any political
campaign other than his or her own campaign for election,
reelection, or retention in office” to be unconstitutional
because it is overbroad. By its terms, it is not limited to
restrictions on participation in political campaigns on behalf
of persons who may become parties to a suit, but may also
include political campaigns on ballot propositions and other
issues, including political campaigns for ballot propositions
that present no risk of impartiality towards future parties.
21
See, e.g., Friedland, 104 Colum. L. Rev. at 614 (“[T]he proper
response to judicial campaign speech that could threaten Fourteenth
Amendment due process rights may be to allow the speech and then, if a
case arises in which the judge’s former campaign speech poses a problem,
to assign that case to another judge.”).
WOLFSON V. CONCANNON 29
Thus, Rule 4.1(A)(5) unconstitutionally prohibits protected
speech about legal issues. White I, 536 U.S. at 776–78.
IV.
For these reasons, we reverse the district court’s grant of
summary judgment to the Arizona defendants. We hold that
strict scrutiny applies and that the challenged portions of the
Arizona Code of Judicial conduct unconstitutionally restrict
the speech of non-judge judicial candidates. We remand the
case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
BERZON, Circuit Judge, concurring:
Sitting for judicial election while judging cases, Justice
Otto Kaus famously quipped, is like “brushing your teeth in
the bathroom and trying not to notice the crocodile in the
bathtub.” Joseph R. Grodin, In Pursuit of Justice: Reflections
of a State Supreme Court Justice 177 (1989) (quoting Kaus).
Kaus would know. He sat on the California Supreme Court
from 1981 to 1985, Gerald T. McLaughlin, Memorial
Dedication to Otto Kaus, 30 Loy. L.A. L. Rev. 923, 923
(1997), having narrowly won a retention election in 1982 and
retiring from the court soon before the 1986 vote that would
unseat three of his former colleagues, Stephen R. Barnett,
30 WOLFSON V. CONCANNON
Otto and the Court, 30 Loy. L.A. L. Rev. 943, 947 & n.19
(1997).1
Kaus’ point about the psychology of judging applies
outside the context of judicial elections, for the temptation to
engage in overt political behavior affects judges generally.
And so I write separately to identify, and hopefully to tame,
the “crocodile” stalking today’s majority opinion: the
prospect that the principles we apply now will be used in
future litigation to challenge the constitutionality of
restrictions on the political behavior of sitting judges. The
opinion studiously — and designedly — does not address that
issue. But it is worth explaining why, in my view, the
considerations pertinent to evaluating the complex of
constitutional issues raised by such restrictions are quite
different than those the majority opinion applies today.
I.
Today’s opinion addresses the constitutionality of certain
provisions of the Arizona Code of Judicial Conduct (“Code”)
only as they apply to judicial candidates who, like Wolfson,
have not yet ascended to the bench. It does not decide those
provisions’ constitutionality as they apply to elected judges
1
Justices of the California Supreme Court and Judges of the California
Court of Appeal are nominated by the Governor, confirmed by the
Commission on Judicial Appointments, and then subject to voter approval
in a retention election at the time of the next gubernatorial election and,
thereafter, at the end of each 12-year term. See Cal. Const. art. 6, § 16(d);
Cal. Elec. Code § 9083. Judges of the California Superior Court usually
sit for general election every six years, Cal. Const. art. 6, § 16(b), unless
an incumbent is not unopposed, Cal. Elec. Code § 8203, or a county
adopts by majority popular vote the retention-election system applicable
to appellate judges, Cal. Elec. Code § 8220.
WOLFSON V. CONCANNON 31
who, like Kaus, have already taken their oaths of office. Still
less does it decide the constitutionality of restrictions on the
political activity of judges who, like us on the federal bench,
“hold their Offices during good Behaviour,” U.S. Const. art.
III, § 1, and never sit for election. In the name of prudence
and constitutional avoidance, the majority’s opinion rightly
reserves judgment on the constitutionality of restricting the
speech of sitting judges, an issue neither properly before us
nor necessary to the resolution of this case.
I emphasize the limited scope of today’s decision for fear
that future litigants might otherwise seek to obscure it,
despite the repeated admonishments in the opinion. Of the
five Code provisions we strike today, only one — the
solicitation ban — directly relates to a judicial candidate’s
own campaign for office.2 The remainder prohibit a would-be
judge’s efforts to advance the political fortunes of other
candidates or causes, through speeches, endorsements,
fundraising, financial support, or other campaign assistance.3
2
The full text of the provision is as follows:
(A) A judge or judicial candidate shall not . . . .
(6) personally solicit or accept campaign contributions
other than through a campaign committee authorized by
Rule 4.4 . . . .
Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of Jud.
Conduct (2009), Rule 4.1(A)(6).
3
The full text of the provision is as follows:
(A) A judge or judicial candidate shall not do any of the
following:
32 WOLFSON V. CONCANNON
As these proscriptions bear little direct relation to judicial
candidates’ personal political fortunes, a casual reader might
be forgiven for assuming that they are just as constitutionally
offensive as applied outside the election context, to sitting
judges, whether or not they reached the bench via election.
In my view, that is not so, for at least two reasons: The
analytic framework applicable to political restrictions on
sitting judges may well differ from the one we apply today.
And the compelling state interest that could well justify such
restrictions differs from the one emphasized in the majority
opinion. I address each difference in turn.
....
(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 . . . .
Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of Jud.
Conduct (2009), Rule 4.1(A)(2)–(5).
WOLFSON V. CONCANNON 33
II.
In applying strict scrutiny to a judicial candidate who is
not now a judge, today’s majority opinion rightly rejects the
Seventh Circuit’s approach, which applies to political
restrictions on elected sitting judges a balancing test derived
from the Supreme Court’s cases on public employee speech.
Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010); Siefert v.
Alexander, 608 F.3d 974 (7th Cir. 2010). Although such a
tempered standard has no application to a candidate who has
not yet taken his oath of judicial office, whether it would be
appropriately applied to political restrictions governing sitting
judges is quite a different manner.
The Constitution permits the government to prohibit its
employees from speaking about matters of public concern
where the government’s interest “in promoting the efficiency
of the public services it performs through its employees”
outweighs the First Amendment interest in speech. Pickering
v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill.,
391 U.S. 563, 568 (1968). The Pickering balancing test seeks
“both to promote the individual and societal interests that are
served when employees speak as citizens on matters of public
concern and to respect the needs of government employers
attempting to perform their important public functions.”
Garcetti v. Ceballos, 547 U.S. 410, 420 (2006). And that test
recognizes that “there are certain governmental functions that
cannot operate without some restrictions on particular kinds
of speech.” Citizens United v. Fed. Election Comm’n,
558 U.S. 310, 341 (2010).
Republican Party of Minnesota v. White, 536 U.S. 765
(2002), did not decide whether the public employee speech
cases would justify restrictions on judges’ active support for
34 WOLFSON V. CONCANNON
political causes or the candidacies of others. Justice
Kennedy, who was a member of the five-justice majority,
wrote a separate concurrence, explaining this limitation:
“Whether the rationale of Pickering[, 391 U.S. 563], and
Connick v. Myers, 461 U.S. 138 (1983), could be extended to
allow a general speech restriction on sitting judges —
regardless of whether they are campaigning — in order to
promote the efficient administration of justice, is not an issue
raised here.” White, 536 U.S. at 796 (Kennedy, J.,
concurring).
In Siefert, 608 F.3d at 985, the Seventh Circuit extended
the public employee speech cases to a provision of the
Wisconsin Code of Judicial Conduct prohibiting an elected
sitting judge from “[p]ublicly endors[ing] or speak[ing] on
behalf of [a political party’s] candidates or platforms,” id. at
978–79. It reasoned that the government’s authority as an
employer, “its duty to promote the efficiency of the public
services it performs,” and the imperative that “the work of the
judiciary conform[] with the due process requirements of the
Constitution” justified a less rigorous balancing test for
restrictions on elected sitting judges’ participation in the
political campaigns or candidacies of others. Id. at 985. In
a subsequent decision, the Seventh Circuit extended this
balancing test to provisions of the Indiana Code of Judicial
Conduct prohibiting elected judges from leading or holding
office in political organizations or making speeches on behalf
of such organizations. Bauer, 620 F.3d at 710–11.
The core rationale of the public employee speech cases,
on which Siefert and Bauer relied, does not apply to the case
presently before us. Wolfson has never been an employee of
Arizona, let alone a judge. Indeed, he may never become
one. While the public employee speech cases do not rest
WOLFSON V. CONCANNON 35
solely on the now-antiquated principle that the government
can condition employment on the waiver of First Amendment
rights, see Myers, 461 U.S. at 143–44, the nature of
government employment is a necessary component of their
reasoning. Pickering recognized as much, commenting that
“it cannot be gainsaid that the State has interests as an
employer in regulating the speech of its employees that differ
significantly from those it possesses in connection with
regulation of the speech of the citizenry in general.” 391 U.S.
at 568. The public employee speech cases thus recognize the
“crucial difference, with respect to constitutional analysis,
between the government exercising ‘the power to regulate or
license, as lawmaker,’ and the government acting ‘as
proprietor, to manage [its] internal operation.’” Engquist v.
Or. Dep’t of Agric., 553 U.S. 591, 598 (alteration in original)
(quoting Cafeteria & Rest. Workers v. McElroy, 367 U.S.
886, 896 (1961)). Critically, the balancing test the Pickering
line of cases articulates does not apply to governmental
restrictions on the speech of those, like judicial candidates,
not employed by the government. We could not abandon that
determinative distinction without dangerously expanding the
scope of constitutionally permissible regulation of speech.
But our refusal to apply to a judicial candidate not yet a
state employee a balancing test derived from the public
employee speech cases says nothing whatever about the
applicability of such a test to individuals who have already
taken their oaths of judicial office and already receive wages
from the state. That question remains unanswered.
Resolving the First Amendment challenge of a sitting judge
to similar restrictions on his speech will require answering it.
And, without prejudging whether we should adopt the Siefert
analysis for restrictions on political activity by sitting judges
on behalf of political causes or the candidacies of others, I
36 WOLFSON V. CONCANNON
suggest that the analogy to the Pickering line of cases has
much to commend it.
III.
Even if we determined that restrictions on the political
activity of sitting judges were subject to strict scrutiny, the
state interest supporting such a restriction would be far
stronger than the one we hold inadequate to justify the
restrictions on judicial candidate Wolfson’s speech today.
The Supreme Court has recognized as a “vital state
interest” the interest in maintaining those “safeguard[s]
against judicial campaign abuses that threaten to imperil
public confidence in the fairness and integrity of the nation’s
elected judges.” Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 889 (2009) (emphasis added) (internal quotation marks
and citation omitted). Preserving public confidence includes
maintaining the perception of judicial propriety. In other
words, “‘justice must satisfy the appearance of justice.’” In
re Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt v.
United States, 348 U.S. 11, 14 (1954)). “[T]he appearance of
evenhanded justice . . . is at the core of due process.”
Mayberry v. Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan,
J., concurring).
The majority opinion, taking its cue from Supreme Court
cases on judicial elections, focuses its strict scrutiny analysis
on the interest in preserving the actuality and appearance of
judicial impartiality. The case law’s emphasis on impartiality
derives from the obligations imposed by the due process
clause, particularly “the proposition that an impartial judge is
essential to due process.” White, 536 U.S. at 776. This
compelling interest in preserving the appearance of
WOLFSON V. CONCANNON 37
impartiality is both weighty and narrow: weighty, because it
rises to the level of a constitutional obligation, requiring a
judge to recuse himself from a particular case in the name of
due process, Caperton, 556 U.S. at 886–87; and narrow,
because it refers only to “lack of bias for or against either
party to the proceeding,” White, 536 U.S. at 775–76
(emphasis in original). Given this narrow focus on the parties
appearing before a judge in an actual proceeding, the less-
restrictive remedy of mandatory recusal is available to a state
seeking to protect, as it must, the due process rights of
litigants appearing in its courts.
But I would define the state’s interest in preserving public
confidence in its judiciary more broadly, as reaching beyond
the process due specific litigants in particular cases.
Maintaining public trust in the judiciary as an institution
driven by legal principles rather than political concerns is a
structural imperative. The rule of law depends upon it.
The fundamental importance of this structural imperative
has been recognized from the founding of the nation. As
Alexander Hamilton emphasized in The Federalist No. 78,
the courts possess “neither FORCE nor WILL, but merely
judgment . . . .” Id. at 433 (Clinton Rossiter ed., 1961).
Deprived of those alternative sources of power, the authority
of the judiciary instead “lies . . . in its legitimacy, a product
of substance and perception that shows itself in the people’s
acceptance of the Judiciary as fit to determine what the . . .
law means and to declare what it demands.” Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865 (1992);
see also White, 536 U.S. at 793 (Kennedy, J., concurring)
(“The power and the prerogative of a court . . . rest, in the
end, upon the respect accorded to its judgments.”). It is the
courts’ perceived legitimacy as institutions grounded in
38 WOLFSON V. CONCANNON
established legal principles, not partisanship, “that leads
decisions to be obeyed and averts vigilantism and civil
strife.” Bauer, 620 F.3d at 712. Loss of judicial legitimacy
thus corrodes the rule of law, “sap[ping] the foundations of
public and private confidence, and . . . introduc[ing] in its
stead universal distrust and distress.” The Federalist No. 78,
at 438. In this sense, “[t]he rule of law, which is a foundation
of freedom, presupposes a functioning judiciary respected for
its independence, its professional attainments, and the
absolute probity of its judges.” NY State Bd. of Elections v.
Lopez Torres, 552 U.S. 196, 212 (2008) (Kennedy, J.,
concurring).
This nation’s political history demonstrates the disastrous
effects of the perceived politicization of the courts. Charges
that King George “ha[d] obstructed the Administration of
Justice” and “ha[d] made judges dependent on his Will alone
. . . .” were among the founding generation’s justifications for
the 1776 revolution. The Declaration of Independence para.
11 (U.S. 1776). Similar concerns apply outside the context
of a monarchy: Where the judiciary is drawn into the political
intrigues of its coordinate branches, the public might well
“fear that the pestilential breath of faction may poison the
fountains of justice. The habit of being continually marshaled
on opposite sides will be too apt to stifle the voice both of law
and of equity.” The Federalist No. 81, at 452 (Alexander
Hamilton) (Clinton Rossiter ed., 1961).4 And where the
4
This quotation appears in an explanation of why the Supreme Court is
“composed of a distinct body of magistrates, instead of being one of the
branches of the legislature, as in the government of Great Britain . . . .”
Id. at 451. But the dangers of perceived partisanship apply at least as
much to judges independently chosen but participating publicly in the
selection of legislative or executive policies and decisionmakers.
WOLFSON V. CONCANNON 39
politicization of the judiciary brings it into alliance with the
politicians who staff the other two branches of government,
the public may no longer consider “the courts of justice . . . as
the bulwark of a limited Constitution against legislative
encroachments,” The Federalist No. 78, at 437, or executive
excesses. In short, when sitting judges support the campaigns
of nonjudicial candidates — via endorsements, speeches,
money, or other means — the public may begin to see them
not as neutral arbiters of a limited system of governance, but
as participants in the larger game of politics.5
The defendants here express precisely this concern — that
if sitting judges may support the campaigns of others, the
public will perceive them as masters of the political game,
powerbrokers “trading on the prestige of their office to
advance other political ends . . . .” Siefert, 608 F.3d at 984;
see also Model Code of Judicial Conduct R. 4.1, cmt.4 (2011)
(justifying prohibitions on endorsements and speeches on
behalf of other candidates as “prevent[ing sitting judges]
from abusing the prestige of judicial office to advance the
interests of others”). The opposite fear is equally justified:
Today’s powerbroker is tomorrow’s pawn, as the political
winds shift and the next election cycle approaches. The
endorsing judge entwines his fate with whomever he endorses
and earns the enmity of his favored politician’s opponents.
5
I leave aside whether sitting judges may endorse or support other
candidates for judicial office. Such support does not implicate the
powerful state interest in the appearance of judicial independence from the
political branches I discuss in the text. Moreover, a sitting judge’s
endorsement of a judicial candidate is a singularly effective mode of voter
education. Few observers are as qualified as sitting judges to evaluate the
competencies of those who would join their ranks. The concerns and
analyses in this concurring opinion are therefore limited to judicial
participation in issue, legislative, and executive elections.
40 WOLFSON V. CONCANNON
“This kind of personal affiliation between a member of the
judiciary and a member of the political branches raises the
specter — readily perceived by the general public — that the
judge’s future rulings will be influenced by this political
dependency.” Wersal v. Sexton, 674 F.3d 1010, 1034 (8th
Cir. 2012) (Loken, J., concurring in the judgment) (emphasis
in original).
In his concurrence in Wersal, Judge Loken concluded that
there is a “compelling state interest . . . in protecting the
political independence of its judiciary.” Id. at 1033. I have
no reason at this juncture to come to rest on that question.
Instead, I emphasize that, at the very least, there is a powerful
state interest in preventing sitting judges from playing the
part of political powerbroker and creating the publicly visible
interdependence that corrodes confidence in judicial
autonomy. Assessing whether that interest qualifies as
“compelling,” in the lexicon of First Amendment doctrine,
awaits a properly presented case — particularly as the issue
will never arise if we first determine that the Pickering
balancing test, rather than strict scrutiny, applies to speech
restrictions on sitting judges.
Almost certainly, a state does not forfeit this powerful
interest in judicial autonomy by selecting its judges via
popular election. It was in the context of a state prohibition
against judicial candidates expressing their personal views on
disputed legal and political issues during their own campaigns
that the Supreme Court has explained that “‘the greater power
to dispense with elections altogether does not include the
lesser power to conduct elections under conditions of state-
imposed voter ignorance. If the State chooses to tap the
energy and the legitimizing power of the democratic process,
it must accord the participants in that process . . . the First
WOLFSON V. CONCANNON 41
Amendment rights that attach to their roles.’” White,
536 U.S. at 788 (alteration in original) (quoting Renne v.
Geary, 501 U.S. 312, 349 (1991) (Marshall, J., dissenting)).
But that observation does not seem to extend to prohibitions
on campaigning on behalf of issue elections or for nonjudicial
candidates. The Supreme Court’s case law on the political
behavior of government employees has “carefully
distinguishe[d] between [proscribable] partisan political
activities and mere expressions of views,” which are
constitutionally protected. Biller v. U.S. Merit Sys. Prot. Bd.,
863 F.2d 1079, 1089 (2d Cir. 1988) (citing U.S. Civil Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S.
548, 554–56 (1973), and United Pub. Workers of Am. v.
Mitchell, 330 U.S. 75, 98–99 (1947)); Siefert, 608 F.3d at
984; see also Citizens United, 558 U.S. at 341 (citing Letter
Carriers in support of the proposition that the Supreme Court
has often “upheld a narrow class of speech restrictions that
operate to the disadvantage of certain persons, . . . based on
an interest in allowing governmental entities to perform their
functions”).6 Indeed, prohibitions on supporting the
campaigns of others complement, rather than contradict, the
decision to select judges via popular election: By adopting
such restrictions alongside judicial elections, states harness
the “legitimizing power of the democratic process” while
avoiding worrisome interdependence between judges and
politicians from the remaining two branches.
6
It is true that an elected judge’s support of another candidate or cause
signals something about his views, which might be marginally useful to
voters assessing their options at the polls. See Siefert, 608 F.3d at 994–95
(Rovner, J., dissenting) (“We are, after all, often judged by the company
we keep.”). But so long as an elected judge may articulate his personal
views of legal and political issues in support of his own campaign,
attentive voters have a far more direct means with which to form an
opinion about competing judicial candidates.
42 WOLFSON V. CONCANNON
Nor should we forget that our own federal scheme
supplements its structural protections for judicial autonomy
with direct prohibitions on politicking. Structurally, our
Constitution endows judges with life tenure and prohibits the
diminution of their salaries. U.S. Const. art. III, § 1. Such
protections seek to encourage “that independent spirit in the
judges which must be essential to the faithful performance of
so arduous a duty,” The Federalist No. 78, at 437, and help
“preserve[] the independence of the Federal Judiciary,”
White, 536 U.S. at 795 (Kennedy, J., concurring). In addition
to those structural safeguards the federal judiciary has
adopted a code of ethics that regulates directly the behavior
of federal judges, including restrictions on supporting the
political causes and candidacies of others.7 Our ethical code
7
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
organization;
(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.
WOLFSON V. CONCANNON 43
is independent of the structural safeguards that insulate us
from the political branches, and it performs a slightly
different function. I see no reason why a state cannot adopt
the one without the other, except with regard to a judicial
candidate’s personal campaign for judicial office in states
where judicial elections are held.
Critically, the state interest in preserving an autonomous
judiciary is powerful only insofar as it applies to sitting
judges; it has no application to judicial candidates who, like
Wolfson, have not yet reached the bench. The spectacle of
sitting judges aiding partisan allies in their political struggles
corrodes the public repute of the judiciary in a way that the
participation of a mere candidate never can. Indeed, the
interest in an independent judiciary does not come into
existence until a judge assumes office; the politicking of lay
people cannot damage the reputation of a body whose ranks
they have not yet joined. Individuals who run for judicial
office may themselves be officers of political parties or
holders of nonjudicial political office when they decide to run
for a judgeship. That politicians can become judges is no
secret. But that is different from allowing judges to remain
or become politicians while still on the bench. Moreover, as
the majority opinion explains, a layman who has not yet
assumed office has no prestige derived from the office he has
not yet attained to lend his political brethren. Essentially,
(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).
44 WOLFSON V. CONCANNON
ascending to the bench is like taking the veil, and that veil
does not descend until the oath of office is sworn.
Meanwhile, to the extent White sought to preserve voters’
access to “relevant information” and to prevent “state-
imposed voter ignorance” about the candidates sitting for
election, 536 U.S. at 782, 788 (internal quotation marks
omitted), such concerns are weaker for already seated judges.
Such judges already possess a record of decisions that
interested voters can analyze to inform themselves about the
desirability of competing judicial candidates; under White,
they are free to campaign for their own reelection by drawing
attention to their records on the bench. By contrast, lay
people, like Wolfson, who have not yet sat on the bench lack
any such judicial record, making their campaign speech —
including endorsements — relatively more valuable for what
it reveals about how they might perform in office.
* * *
In sum, the principles applicable to the constitutionality
of political restrictions on sitting judges diverge dramatically
from those we apply to today’s challenge to restrictions on a
judicial candidate not now a judge. The standard of review
may well differ. And the powerful interests supporting such
restrictions differ, too. I need not address, as the issue is not
before us, whether the particular restrictions we review today
would be constitutional as applied to sitting judges. But I am
quite sure that the analysis required to resolve that question
will receive scant support from our decision in this case.
WOLFSON V. CONCANNON 45
TALLMAN, Circuit Judge, dissenting in part:
I agree with the majority that strict scrutiny—not
Seifert—is the appropriate standard. I agree that we should
limit our decision to non-incumbent judicial candidates. And
I agree that Rules 4.1(a)(5) (campaigning for others) and
4.1(a)(6) (personal solicitation) are unconstitutional as
applied to those candidates. I concur in the majority opinion
only on those points. I part company with my colleagues as
to Rules 4.1(a)(2) (giving speeches on behalf of others),
(3) (endorsing others), and (4) (soliciting money for others).
These three rules are constitutional because they are narrowly
tailored to serve the state’s compelling interest in maintaining
judicial impartiality and its appearance—the hallmark of
government’s third branch.
My colleagues acknowledge that these three rules
“present the closest question,” and that the Eighth Circuit
upheld similar ones. Wersal, 674 F.3d at 1024–25.
Nonetheless, the majority concludes that they are not
narrowly tailored for two reasons: timing and recusal. The
timing argument is that the rules are underinclusive because
“they only address speech that occurs beginning the day after
a non-judge candidate has filed his intention to run for
judicial office.” The recusal argument is that the rules are
more restrictive than recusal, i.e., requiring judges who have
campaigned for others to recuse themselves when those
others show up as litigants. I dissent because I do not find
these reasons persuasive.
The majority’s timing argument is clever but impractical.
Its breadth alone suggests this. The argument would cut
down any restriction (a) that is subject to strict scrutiny and
(b) that starts to apply to people only after some triggering
46 WOLFSON V. CONCANNON
event. If the restriction’s enactment counts as a triggering
event, and I don’t see why it wouldn’t, then strict scrutiny
would always be fatal. That cannot be the law.
Moreover, the argument doesn’t actually answer the
question, which is whether there are less restrictive ways to
preserve judicial impartiality and its appearance. Having no
rules is, of course, less restrictive. But it isn’t an alternative
means of furthering the interest at stake here. Any actual
alternative will suffer from the timing problem the majority
identifies. So the timing argument tells us nothing about
which alternative is the least restrictive; it only identifies a
problem that all conceivable alternatives share.
The majority’s recusal argument, like the timing
argument, is too impractical in my view. In Arizona, only
very small counties elect judges. And some small counties
may well have only one superior court judge. If that one
judge campaigns for someone who is then elected sheriff or
district attorney, an outside judge would be necessary in
every criminal case and in all civil cases involving the county
where the district attorney is its lawyer. Constant recusal is
no solution.
That’s what the Eighth Circuit held in Wersal, after it
considered this obvious problem. 674 F.3d at 1027–28. The
majority, on the other hand, recognizes the problem, but then
sidesteps it, claiming that the state failed to raise it and that
dealing with it would require us to speculate. I disagree.
There’s no need to speculate about something so self-evident.
And it’s hard to fault the state for failing to dwell on the
obvious.
WOLFSON V. CONCANNON 47
In sum, I don’t buy the timing or recusal arguments. And
without them, there’s nothing that prevents us from declaring
that these three rules are the least restrictive means at
Arizona’s disposal for furthering their compelling interest in
maintaining judicial impartiality and its appearance. Simply
affixing the label of strict scrutiny and then declaring that
unspecified less restrictive means are required gives no
guidance as to what rules pass constitutional muster. And it
encourages an elective free-for-all that undermines respect for
the third branch of government. Because my colleagues
disagree, I respectfully dissent.