Randolph Wolfson v. Colleen Concannon ( 2016 )

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; LOUIS
FRANK DOMINGUEZ; PETER J.
ECKERSTROM; GEORGE H. FOSTER; OPINION
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.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Argued and Submitted En Banc
September 9, 2015—San Francisco, California
Filed January 27, 2016
2 WOLFSON V. CONCANNON
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
SUMMARY*
Civil Rights
The en banc court affirmed the district court’s summary
judgment in favor of defendants in an action brought by
Randolph Wolfson, an Arizona state judicial candidate in
2006 and 2008, who challenged several provisions of the
Arizona Code of Judicial Conduct regulating judicial
campaigns.
Wolfson challenged: (1) the Personal Solicitation Clause,
Rule 4.1(A)(6); (2) the Endorsement Clauses, Rule 4.1(A)(2),
(3), (4); and (3) the Campaign Prohibition, Rule 4.1(A)(5).
Together, the clauses did 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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WOLFSON V. CONCANNON 3
political organization, or to actively take part in any political
campaign.
Applying the Supreme Court’s intervening decision in
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), the en
banc court first held that the district court erred when it
bypassed strict scrutiny in favor of the intermediate level of
scrutiny used by the Seventh Circuit. The panel nevertheless
held that the district court arrived at the correct result because
the Personal Solicitation Clause, the Endorsement Clauses,
and the Campaign Prohibition Rule all withstood First
Amendment analysis under strict scrutiny. The en banc court
held that Arizona has a compelling interest in upholding
public confidence in the judiciary and that in light of
Williams-Yulee, the Rules were narrowly tailored to its
compelling interest.
Concurring, Judge Berzon stated that in light of Williams-
Yulee, she was in general agreement with Judge Gould’s
opinion for the en banc court. Judge Berzon concurred in
order to highlight her concern about articulating the
governmental interest at stake in regulating judicial elections.
Judge Berzon stated that there is a separate, broader
governmental basis for regulating judicial behavior that goes
beyond a concern with biased decisionmaking in individual
cases. In her view, the societal interest in maintaining an
independent judiciary more accurately captures the reasons to
limit judicial candidates’ endorsements and campaigning
activity. Judge Berzon also noted that the majority opinion
did not distinguish between sitting judges who run for judicial
office and judicial candidates who are not yet, and may never
be, judges.
4 WOLFSON V. CONCANNON
COUNSEL
Anita Y. Milanovich (argued) and James Bopp, Jr., The Bopp
Law Firm, Terre Haute, Indiana, for Plaintiff-Appellant.
Paula S. Bickett (argued), Chief Counsel, Civil Appeals;
Thomas C. Horne and Mark Brnovich, Arizona Attorneys
General; Charles Grube, Senior Agency Counsel, Tempe,
Arizona, for Defendants-Appellees Commission Members.
Kimberly A. Demarchi and Peter R. Wand, Lewis and Roca
LLP, Phoenix, Arizona, for Defendant-Appellee Maret
Vessella.
Igor V. Timofeyev, Paul Hastings LLP, Washington, D.C.;
George W. Abele, Paul Hastings LLP, Los Angeles,
California; 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, Wisconson, 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.
WOLFSON V. CONCANNON 5
Robert W. Ferguson, Attorney General, and Alan D. Copsey,
Deputy Solicitor General, Olympia, Washington, for Amicus
Curiae States of Washington, Hawai’i, and Oregon.
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
1
“A judge or a judicial candidate shall not . . . personally solicit or
accept campaign contributions other than through a campaign committee
authorized by Rule 4.4 . . . .” Ariz. Code of Judicial Conduct Rule
4.1(A)(6) (2014), http://www.azcourts.gov/portals/137/rules/Arizona%
20Code%20of%20Judicial%20Conduct.pdf.
2
“A judge or a judicial candidate shall not . . . (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 . . . .” Id.
at 4.1(A)(2), (3), (4).
3
“A judge or a judicial candidate shall not . . . actively take part in any
political campaign other than his or her own campaign for election,
reelection or retention in office.” Id. at 4.1(A)(5).
6 WOLFSON V. CONCANNON
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
4
Wolfson’s complaint also named as defendants Commissioners of
Arizona Supreme Court Disciplinary Commission, but Wolfson has since
voluntarily dismissed all claims against these defendants. Wolfson v.
Brammer, 822 F. Supp. 2d 925, 926–27 (D. Ariz. 2011).
5
The district court originally dismissed Wolfson’s claims as moot
because the election had passed and Wolfson was no longer a judicial
candidate. Wolfson v. Brammer, No. CV-08-8064-PHX-FJM, 2009 WL
102951, at *3 (D. Ariz. Jan. 15, 2009). We disagreed, and reversed and
remanded the case. Wolfson v. Brammer, 616 F.3d 1045, 1066–67 (9th
Cir. 2010). We now review the decision made on remand.
WOLFSON V. CONCANNON 7
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, 135 S. Ct. 1656
(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 (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, 135 S. Ct. 1656 (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
8 WOLFSON V. CONCANNON
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 (2010) (quoting Eu v. S.F. Cty. Democratic Cent.
Comm., 489 U.S. 214, 223 (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 (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 (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,
WOLFSON V. CONCANNON 9
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.
6
Florida’s Canon 7C(1) reads: “A candidate, including an incumbent
judge, for a judicial office that is filled by public election between
competing candidates shall not personally solicit campaign funds, or
solicit attorneys for publicly stated support, but may establish committees
of responsible persons to secure and manage the expenditure of funds for
the candidate’s campaign and to obtain public statements of support for
his or her candidacy. Such committees are not prohibited from soliciting
campaign contributions and public support from any person or corporation
authorized by law.” Code of Judicial Conduct for the State of Florida 38
(2014), http://www.floridasupremecourt.org/decisions/ethics/Code_Judi
cial_Conduct.pdf. Arizona’s Personal Solicitation Clause similarly reads:
“A judge or a judicial candidate shall not . . . personally solicit or accept
campaign contributions other than through a campaign committee . . . .”
Ariz. Code of Judicial Conduct Rule 4.1(A)(6) (2014),
http://www.azcourts.gov/portals/137/rules/Arizona%20Code%20of%20
Judicial%20Conduct.pdf.
10 WOLFSON V. CONCANNON
III
Federal, state, and local governments have struggled to
meet strict scrutiny when defending speech restrictions. See,
e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231–32
(2015); United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803, 813–14, 816 (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 (quoting Wis. Right to Life, 551 U.S.
at 464). 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.
7
With the exception of the level of scrutiny addressed in Part II, above,
Chief Justice Roberts’ opinion in Williams-Yulee garnered a majority.
Williams-Yulee, 135 S. Ct. at 1662.
WOLFSON V. CONCANNON 11
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’ interests, Wolfson first points to Florida’s Code of
Judicial Conduct Canon 1 and its commentary: “Deference to
the judgments and rulings of courts depends upon public
confidence in the integrity and independence of judges.
The integrity and independence of judges depend in turn
upon their acting without fear or favor.” Code of Judicial
Conduct for the State of Florida 6 (2014),
http://www.floridasupremecourt.org/decisions/ethics/Code
_Judicial_Conduct.pdf. He compares this language to that of
Arizona’s Code of Judicial Conduct Rule 1.2 and Comment
5, which he contends demonstrate that Arizona’s interest is
protecting the public’s perception of “the judge’s honesty,
impartiality, temperament, or fitness.” Ariz. Code of Judicial
Conduct Rule 1.2 (2014), cmt. n.5, http://www.azcourts.gov/
portals/137/rules/Arizona%20Code%20of%20Judicial%20
Conduct.pdf. An interest in judicial “honesty, impartiality,
temperament, or fitness,” Wolfson argues, is different than a
concern for “fear or favors.”
This is a distinction without a material difference. Even
if we consider the language to which Wolfson points, the
Supreme Court did not uphold Florida’s prohibition because
of an interest in curbing “fear or favors.” Instead, the Court
was broad in its language and reasoning. “We have
recognized the ‘vital state interest’ in safeguarding ‘public
confidence in the fairness and integrity of the nation’s elected
12 WOLFSON V. CONCANNON
judges,’” Williams-Yulee, 135 S. Ct. at 1666 (quoting
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889
(2009)), because the “judiciary’s authority . . . depends in
large measure on the public’s willingness to respect and
follow its decisions.” Id. Arizona’s interest, outlined in Rule
1.2 and its comments, is similar, if not identical.
Moreover, the Supreme Court recognized that the
“concept of public confidence in judicial integrity does not
easily reduce to precise definition.” Id. at 1667. Even if
Arizona adopted slightly different language for its articulation
of its interest,8 Arizona is similarly interested in upholding
the judiciary’s credibility. There are no magic words required
for a state to invoke an interest in preserving public
confidence in the integrity of the state’s sitting judges.
Arizona’s interest behind its Personal Solicitation Clause
is compelling.
2. Narrowly Tailored
Wolfson’s arguments that Arizona’s Personal Solicitation
Clause is not narrowly tailored are precluded by Williams-
Yulee. First, Wolfson contends that the Personal Solicitation
Clause is overbroad because it covers solicitation methods,
such as mass mailings and speeches to large groups, that
8
Wolfson’s articulation of Arizona’s interest stresses selective words
and ignores the plain language of Rule 1.2 which is nearly identical to the
interests Florida stated in Canon 1. “A judge shall act at all times in a
manner that promotes public confidence in the independence, integrity,
and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” Ariz. Code of Judicial Conduct Rule 1.2
(2014), http://www.azcourts.gov/portals/137/rules/Arizona%20Code%2
0of%20Judicial%20Conduct.pdf.
WOLFSON V. CONCANNON 13
would not result in a quid pro quo. However, the Supreme
Court rejected the argument that the state may prohibit only
solicitation methods that are the most likely to erode public
confidence. Williams-Yulee, 135 S. Ct. at 1671. The Court
held that the argument “misperceives the breadth of the
compelling interest” and that, though that “interest may be
implicated to varying degrees in particular contexts, . . . the
interest remains whenever the public perceives the judge
personally asking for money.” Id.
Second, Wolfson argues that the Personal Solicitation
Clause is not the least restrictive means to effectuate
Arizona’s interest because Arizona could have adopted
contribution limitations or a mandatory recusal rule. Again,
the Supreme Court did not consider this argument persuasive.
Id. at 1671–72. Forced recusals would disable jurisdictions
with a small number of judges, erode public confidence in the
judiciary, and create an incentive for litigants to make
contributions for the sole purpose of forcing the judge to later
recuse himself or herself from the litigant’s cases. Id.
Contribution limits would be similarly ineffective. The
improper appearance of a judicial candidate soliciting money
would still remain and, even though the Court had previously
held that contribution limitations advance the interest against
quid pro quo corruption, a state is not restricted to pursuing
its interest by a single means. Id. at 1672.
We hold that Arizona’s Personal Solicitation Clause is
narrowly tailored to achieve the state’s compelling interest.
The state reasonably wants to uphold the public’s perception
of publicly elected judges as being fair-minded and unbiased,
and may do so by prohibiting judicial candidates from
making personal solicitations.
14 WOLFSON V. CONCANNON
B. The Endorsement Clauses and the Campaign
Prohibition
Wolfson also argues that Arizona’s Endorsement Clauses
and Campaign Prohibition are not narrowly tailored to
Arizona’s compelling interest in public confidence in the
judiciary’s integrity.9 These Clauses prohibit him, while
running for judicial office, from personally soliciting funds
for a campaign for another candidate or political organization,
publicly endorsing or making a speech on behalf of another
candidate for public office, or actively taking part in any
political campaign. Wolfson contends that the prohibitions
are underinclusive, overbroad, and generally not tailored
enough to the interest at hand. We disagree. Arizona can
properly restrict judges and judicial candidates from taking
part in political activities that undermine the public’s
confidence that judges base rulings on law, and not on ?party
affiliation.
1. Underinclusivity
Wolfson contends that Arizona’s Endorsement Clauses
and Campaign Prohibition are underinclusive because they
allow judicial candidates to receive endorsements, allow
judicial candidates to endorse public officials and non-
candidates, and allow other candidates to participate in
judicial campaigns. “[U]nderinclusiveness can raise ‘doubts
9
Wolfson again does not contest that Arizona has a compelling interest
in upholding the Endorsement Clauses and Campaign Prohibition.
Arizona has a compelling interest in upholding the public confidence in
the judiciary and furthers this interest through a ban on personal
solicitation and curtailment of judicial candidates’ ability to engage with
the political branches of government.
WOLFSON V. CONCANNON 15
about whether the government is in fact pursuing the interest
it invokes, rather than disfavoring a particular speaker or
viewpoint,’” Williams-Yulee, 135 S. Ct. at 1668 (quoting
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2740
(2011)), and can “reveal that a law does not actually advance
a compelling interest.” Id. However, “[a] State need not
address all aspects of a problem in one fell swoop” and can
“focus on . . . [the] most pressing concerns.” Id.
Once again, Williams-Yulee controls our reasoning. In
assessing whether Florida’s solicitation clause was
underinclusive, the Court looked at whether Canon 7C(1) was
“aim[ed] squarely at the conduct most likely to undermine
public confidence in the integrity of the judiciary,” “applie[d]
evenhandedly to all judges and judicial candidates, regardless
of their viewpoint,” and was “not riddled with exceptions.”
Id. at 1668–69. We do not believe that the analysis should be
any different when assessing a prohibition of endorsements
or participation in political campaigns. Williams-Yulee may
have been about a prohibition on direct candidate solicitations
of campaign contributions, but the Supreme Court’s
reasoning was broad enough to encompass underinclusivity
arguments aimed at other types of judicial candidate speech
prohibitions such as Arizona’s Endorsement Clauses and its
Campaign Prohibition.
And both the Endorsement Clauses and Campaign
Prohibition fit easily under the Williams-Yulee
underinclusivity analysis. First, Arizona squarely aimed at
preventing conduct that could erode the judiciary’s
credibility. When a judicial candidate actively engages in
political campaigns, a judge’s impartiality can be put into
question, and the public can lose faith in the judiciary’s
ability to abide by the law and not make decisions along
16 WOLFSON V. CONCANNON
political lines. Arizona’s Endorsement Clauses and
Campaign Prohibition are aimed at these valid concerns. See
Arizona Judicial Code of Conduct Rule 4.1, Comment 1
(“Rather than making decisions based upon the expressed
views or preferences of the electorate, a judge makes
decisions based upon the law and the facts of every case.
Therefore, in furtherance of this interest, judges and judicial
candidates must, to the greatest extent possible, be free and
appear to be free from political influence and political
pressure.”). Further, the Endorsement Clauses and Campaign
Prohibition apply to both judges and judicial candidates and
have few exceptions.10
We need not question whether Arizona could have, as
Wolfson argues, prohibited more types of endorsements or
campaign participation. “[P]olicymakers may focus on their
most pressing concerns” and the fact that the state could
“conceivably could have restricted even greater amounts of
speech in service of their stated interests” is not a death blow
under strict scrutiny. Williams-Yulee, 135 S. Ct. at 1668.
Arizona’s Endorsement Clauses and Campaign Prohibition
are not underinclusive.
2. Overinclusivity
Wolfson next contends that the Endorsement Clauses and
Campaign Prohibition are unconstitutionally overbroad
because the Campaign Prohibition bans involvement with
10
Judges and judicial candidates may make limited contributions to
another candidate or political organization under Rule 4.1(A)(4) and may
engage in political activity that pertains to the legal system or attend
dinners or similar functions that do not constitute a public endorsement of
candidates under Rule 4.1(C).
WOLFSON V. CONCANNON 17
ballot measures, and the Endorsement Clauses forbid judges
from endorsing anyone, even candidates like the President of
the United States who are highly unlikely to appear before the
judge.11 A regulation “may be overturned as impermissibly
overbroad because a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal
quotation marks omitted).
Again, Williams-Yulee forecloses Wolfson’s arguments.
There, the petitioner contended that even though Florida
could constitutionally prevent judges from soliciting one-on-
one or in person with lawyers and litigants, Canon 7C(1) was
overbroad because it included a prohibition of solicitation
through mass mailings. Williams-Yulee, 135 S. Ct. at
1670–71. The petitioner argued that the latter would have
less impact on the public confidence of the judiciary. Id. at
1671. But the Supreme Court was not convinced, reasoning
that such distinctions became so fine as to be unworkable,
and in large part, Florida’s restriction still left judicial
candidates “free to discuss any issue with any person at any
time.” Id. at 1670–71. Further, the Court held that though
11
We need not reach whether Arizona could constitutionally forbid
judges from discussing ballot measures. Arizona interprets the Clauses to
allow candidates to discuss any disputed issue, including those in issue-
based initiatives, while cautioning that judicial candidates shall not “with
respect to cases, controversies, or issues that are likely to come before the
court, make pledges, promises or commitments that are inconsistent with
the impartial performance of the adjudicative duties of the office” and
shall “act in a manner consistent with the impartiality, integrity and
independence of the judiciary.” Ariz. Sup. Ct. Judicial Ethics Advisory
Op. 06-05 (2006); see also Ariz. Sup. Ct. Judicial Ethics Advisory Op. 08-
01 (2008).
18 WOLFSON V. CONCANNON
these speech restrictions must be narrowly tailored, they need
not be “perfectly tailored.” Id. at 1671 (quoting Burson v.
Freeman, 504 U.S. 191, 209 (1992)). “[M]ost problems arise
in greater and lesser gradations, and the First Amendment
does not confine a State to addressing evils in their most
acute form.” Id.; see also O’Toole v. O’Connor, No. 15-
3614, 2015 WL 5515061, at *5 (6th Cir. Sept. 21, 2015).
Wolfson asks us to draw a similarly unworkable and
unnecessary line. Although supporting a United States
presidential candidate may have less of an effect on the public
confidence than endorsing or campaigning for an Arizona
State senator or a local prosecutor, creating a rigid line is as
unworkable as it is unhelpful. Judges engaging in political
acts may present different levels of impropriety in different
situations. It is not our proper role to second-guess Arizona’s
decisions in this regard. Much as the state drew a line
between personal solicitation by candidates and by
committees in order to preserve public confidence in the
judiciary’s integrity, Williams-Yulee, 135 S. Ct. at 1671, so
too can the state decide that judicial candidates should not
engage in legislative or executive campaigns. “These
considered judgments deserve our respect, especially because
they reflect sensitive choices by States in an area central to
their own governance—how to select those who ‘sit as their
judges.’” Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 460
(1991)).
Our conclusion is consistent with White I. Arizona’s
prohibitions do not prevent judicial candidates from
announcing their views on disputed legal and political
subjects. See White I, 536 U.S. at 788. Instead, Arizona
simply makes the distinction that a judicial candidate may do
so only in relation to his or her own campaign. This follows
WOLFSON V. CONCANNON 19
the reasoning in White I, where the Supreme Court was
concerned about restrictions on the ability to express legal
views while campaigning, see id. at 770–74, not on the ability
to advance the political views and aspirations of another
candidate. The latter is not the kind of speech the Court in
White I sought to protect. See Wersal v. Sexton, 674 F.3d
1010, 1026 (8th Cir. 2012) (“[T]he endorsement clause does
not regulate speech with regard to any underlying issues, and
thus the candidates are free to state their positions on these
issues, in line with White I.”); Siefert, 608 F.3d at 984
(“While an interest in the impartiality and perceived
impartiality of the judiciary does not justify forbidding judges
from identifying as members of political parties, a public
endorsement is not the same type of campaign speech [as
that] targeted by the impermissible rule against talking about
legal issues the Supreme Court struck down in White I.”);
Bauer, 620 F.3d at 711–12 (holding that the reasoning
employed in Siefert to uphold a prohibition against judicial
candidate endorsements is equally applicable to a prohibition
on partisan activities).
The compelling interest in preserving public confidence
in the integrity of judiciary warrants a favorable view of
Arizona’s attempt to foreclose judicial candidates from
engaging in political campaigns other than their own. The
Endorsement Clauses and Campaign Prohibition are not
fatally overbroad.
3. Least Restrictive Means
Finally, Wolfson contends that Arizona’s Endorsement
Clauses and Campaign Prohibition are not narrowly tailored
because they do not offer the least restrictive means to further
the state’s interest. He argues that the Clauses do not prevent
20 WOLFSON V. CONCANNON
judges from favoring certain candidates that may appear in
court, and even if they did, recusal would be the best way to
handle such impartiality or appearance of impartiality. The
government may only “regulate the content of
constitutionally protected speech in order to promote a
compelling interest if it chooses the least restrictive means to
further the articulated interest.” Sable Commc’ns of Cal., Inc.
v. FCC, 492 U.S. 115, 126 (1989).
But recusal is no answer at all, and this unworkable
alternative was flatly dismissed in Williams-Yulee. A rule
requiring judges to recuse themselves from every case where
they endorsed or campaigned for one of the parties could
“disable many jurisdictions” and cripple the judiciary. See
Williams-Yulee, 135 S. Ct. at 1671. Four of Arizona’s
counties have only one superior court judge and two other
counties have only two superior court judges. Arizona
Judicial Branch, Fiscal Year 2014 Annual Report 4,
http://www.azcourts.gov/Portals/38/2014%20Annual%20R
eport.pdf. Campaigning for frequent litigants would cause an
insurmountable burden that other judges and other counties
may not be able to bear. Moreover, an extensive recusal
record could cause the same erosion of public confidence in
the judiciary that Arizona’s Endorsement Clauses and
Campaign Prohibition are trying to prevent.
We hold that the Endorsement Clauses and Campaign
Prohibition are narrowly tailored to achieve Arizona’s
compelling interest.
IV
Even though the district court erred when it bypassed
strict scrutiny in favor of the intermediate level of scrutiny
WOLFSON V. CONCANNON 21
used by the Seventh Circuit, it arrived at the correct result.
The Personal Solicitation Clause, Endorsement Clauses, and
Campaign Prohibition all withstand First Amendment
analysis under strict scrutiny. Arizona has a compelling
interest in upholding public confidence in the judiciary. And
in light of Williams-Yulee, we hold that Arizona’s Rules are
narrowly tailored to its compelling interest. The judgment of
the district court is therefore
AFFIRMED.
BERZON, Circuit Judge, concurring:
Given Williams-Yulee v. Florida Bar, 135 S. Ct. 1656
(2015), I am in general agreement with Judge Gould’s
opinion for the en banc court (“main opinion”). There are
two points, however, as to which the main opinion is terse, at
best, and which therefore, in my view, deserve further
exploration.
First, I concurred in the panel opinion to highlight my
concern about articulating the governmental interests at stake
in regulating judicial elections, and write separately here, too,
to reiterate the same concern. Wolfson v. Conannon,
750 F.3d 1145, 1160 (9th Cir. 2014) (Berzon, J., concurring).
The main opinion supports all three of Arizona’s challenged
restrictions on judicial candidates’ behavior during judicial
election campaigns on the basis of the same governmental
interest — judicial impartiality. See, e.g., Maj. Op. at 15–16.
But three different species of speech regulation of judicial
candidates are here at issue, not one. And while one of the
regulations — the ban on personal solicitation — is closely
22 WOLFSON V. CONCANNON
related to the restriction considered in Williams-Yulee, two —
the bans on endorsements and campaigning for nonjudicial
candidates and causes — are quite different. As to the latter
two bans, I am not at all sure that the governmental interest
in preventing biased judicial decisionmaking survives the
compelling interest/narrowly tailored standard we are
required to apply. I am convinced, however, that there is a
societal interest underlying those two restrictions —
maintaining an independent judiciary — that more accurately
captures the reasons to limit judicial candidates’
endorsements and campaigning activity, and that does meet
the compelling interest/narrow tailoring requirements.
Additionally, the main opinion does not distinguish
between sitting judges who run for judicial office and judicial
candidates who are not yet, and may never be, judges. This
distinction turns out not to be dispositive of this case, but it is
worth explaining why that is so.
1. As the main opinion and the Supreme Court recognize,
“[t]he concept of public confidence in judicial integrity does
not easily reduce to precise definition.” Williams-Yulee v.
Florida Bar, 135 S. Ct. 1656, 1667 (2015). In my view, this
case requires us to disentangle two distinct facets of this
compelling interest.
First, society has an interest in judicial impartiality that is
“both weighty and narrow.” Wolfson, 750 F.3d at 1163
(Berzon, J., concurring). This fundamental interest is
enshrined in the Due Process Clause’s prohibition on a judge
trying a case in which she “has an interest in the outcome.”
Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 880
(2009).
WOLFSON V. CONCANNON 23
It is this impartiality concern that underlay the solicitation
restriction in Williams-Yulee and also undergirds Arizona’s
ban on judges’ personal solicitation of funds. “[M]ost donors
are lawyers and litigants who may appear before the judge
they are supporting,” Williams-Yulee, 135 S. Ct. at 1667, and
“personal solicitation by a judicial candidate ‘inevitably
places the solicited individuals in a position to fear retaliation
if they fail to financially support that candidate,’” id. at 1668
(quoting Simes v. Ark. Judicial Discipline and Disability
Com’n, 368 Ark. 577, 585 (2007)). This impartiality interest
is important; its reach is also fairly limited. Impartiality’s
“root meaning” refers to the lack of “bias for or against either
party to the proceeding.” Republican Party of Minn. v.
White, 536 U.S. 765, 775 (2002) (emphasis in original).
Restrictions that can be justified by society’s interest in
impartiality are those that aim at protecting the due process
rights of litigants appearing before a judge in court.
There is, however, a separate, broader governmental basis
for regulating judicial behavior that goes beyond a concern
with biased decisionmaking in individual cases. That interest
is society’s concern with maintaining both the appearance and
the reality of a structurally independent judiciary, engaged in
a decisionmaking process informed by legal, not political or
broad, nonlegal policy considerations. As I explained in my
concurrence to the panel opinion,
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
24 WOLFSON V. CONCANNON
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 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,
WOLFSON V. CONCANNON 25
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). And where the 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
26 WOLFSON V. CONCANNON
not as neutral arbiters of a limited system of
governance, but as participants in the larger
game of politics.
Wolfson, 750 F.3d at 1164–65 (Berzon, J. concurring)
(footnotes omitted).
In short, a deep-seated interest in the structural
independence of the judiciary has been recognized as
indispensable to our constitutional order since the founding
era. See id. at 1164. An independent judge “must above all
things put aside his estimate of political and legislative
values” when interpreting the law. Benjamin Cardozo, The
Nature of the Judicial Process, 90 (1921) (internal quotation
mark omitted) (quoting Lorenz Brütt, Die Kunst der
Rechtsanwendung, 57 (1907)).
When judges swap endorsements with legislative or
executive candidates, or make speeches during nonjudicial
political campaigns, their political and legislative values are
brought to the fore, threatening the public’s perception of
their independence. To quote again from my panel
concurrence:
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
WOLFSON V. CONCANNON 27
“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. “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).
Wolfson, 750 F.3d at 1165 (Berzon, J., concurring).
I read neither Williams-Yulee nor the main opinion to say
anything to the contrary. Both impartiality and independence
are implicit, for instance, in the majority’s reference to “the
judiciary’s ability to abide by the law and not make decisions
along political lines.” Maj. Op. at 15–16. But because First
Amendment doctrine focuses on the breadth and nature of the
interests at stake, it is important to be clear that the interests
raised by this case are not limited to the due process concerns
signaled by the term judicial impartiality.
This dual focus is particularly critical where, as in this
case, the two interests affect aspects of the regulations at
issue differently. The main opinion takes Williams-Yulee’s
28 WOLFSON V. CONCANNON
reasoning regarding the personal solicitation of funds and
applies it to uphold a ban on judicial candidates endorsing or
campaigning for nonjudicial political candidates and
organizations. But the concerns raised by these distinct
activities only partially overlap. An in-person solicitation
creates a unique risk of a quid pro quo arrangement, or at
least the appearance of one, between a judicial candidate and
a donor. See Wersal v. Sexton, 674 F.3d 1010, 1029 (8th Cir.
2012) (en banc). The risk of such an arrangement is more
attenuated, though, when it comes to endorsements and
campaigning for nonjudicial candidates and issues.
Candidates can, of course, exchange endorsements in a
mutually beneficial arrangement. But there may be many
scenarios where “[a] judicial candidate’s endorsement of an
executive or legislative candidate . . . benefits the endorsee
more than the endorser.” Id. at 1049 (Beam, J., dissenting).
The same can be true when a judicial candidate lends their
time or credibility to a nonjudicial issue campaign.
Reframing the governmental interest underlying
restrictions on judicial candidates’ role in campaigns or
political organizations other than their own also brings better
into focus the requisite “less-restrictive means” analysis.
Personal recusal is an ineffective alternative to the solicitation
bar because, as Williams-Yulee and the majority point out, it
would be problematic to have many recusals in smaller
jurisdictions, and individuals would have a “perverse
incentive” to donate to judges in the hopes of forcing the
judge to recuse if elected. Williams-Yulee, 135 S. Ct. at
1671–72; Maj. Op. at 13. In contrast, recusals might be a
better alternative to the endorsement and campaign bars, if
the only concern were avoiding conflicts of interest. The
number of nonjudicial endorsements or campaign speeches a
candidate makes is likely to be far lower than the number of
WOLFSON V. CONCANNON 29
individuals donating to his or her campaign. And the concern
of hostile donations as “a form of peremptory strike against
a judge,” Williams-Yulee, 135 S. Ct. at 1672, disappears
where the judicial candidate is the one choosing whom to
endorse.
It is not clear to me, then, that the compelling interest of
judicial impartiality, or the reasons for concluding that the
restrictions are sufficiently narrowly focused, translate well
from the solicitation realm to the practice of campaigning for
or endorsing other candidates or issues. But these restrictions
surely do advance the vital interest in structural judicial
independence. The campaign and endorsement restrictions
respond to a structural need — they restrict judges from
engaging in nonjudicial campaigns, to prevent them from
being entangled in the legislative and executive political
process. Judges must have the confidence to stand firm
against nonjudicial elected officials. That confidence could
give way — or appear to give way — if judges behave just
like those elected officials, by engaging in the usual, often
contentious and fiercely partisan, political processes.
2. I also write to note another distinction that both the
main opinion and Williams-Yulee elide. Both opinions lump
together sitting judges running for re-election and nonjudge
candidates aspiring to the office. See, e.g., Williams-Yulee,
135 S. Ct. at 1668; Maj. Op. at 14. The main opinion does so
not only with respect to the restriction directly pertinent to the
judicial election, the solicitation restriction, but with respect
to the two other restrictions as well.
It is worth considering whether that uniform treatment is
justified. On reflection, it seems to me that competing
considerations pull in various directions with regard to the
30 WOLFSON V. CONCANNON
application to sitting judges and judicial candidates of the
nonjudicial endorsement and campaigning restrictions. In the
end, I agree with the main opinion’s conclusion that all three
regulations at issue are valid with respect to both groups.
First, sitting judges are already public employees. The
Supreme Court has held in the Pickering line of cases that
public employee speech may be subject to greater restrictions
than the First Amendment would otherwise allow. See
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will
Cnty., Ill., 391 U.S. 563, 568 (1968). The Seventh Circuit,
for instance, has applied Pickering to adopt a balancing test
when evaluating restrictions on sitting judges’ speech. See
Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010); Siefert v.
Alexander, 608 F.3d 974 (7th Cir. 2010). But Pickering does
not appear to apply to the speech of candidates for judicial
office who are not yet public employees.
Second, the structural judicial independence interest that
to me is central to upholding two of the three judicial
campaign restrictions here applicable comes into full force
only when the individual elected actually ascends the bench.
Before that, the concern is somewhat contingent — the
candidate may become a judge. Still, that contingency may
be sufficient reason for treating a judicial candidate who is
not a sitting judge according to the rules of judicial ethics.
The structural independence concerns are largely aspirational,
and the public perception of the judicial role may be most at
the forefront during judicial elections. So drawing the line on
nonjudicial political participation at the point of declaration
of judicial candidacy may help to forward both the reality and
the appearance of a politically independent judiciary.
WOLFSON V. CONCANNON 31
Moreover, if sitting judges were subject to greater
restrictions on political activity than nonjudge candidates,
two individuals may end up running for the same judicial
office on somewhat uneven footing. The Supreme Court has
“repeatedly rejected the argument that the government has a
compelling state interest in ‘leveling the playing field’ that
can justify undue burdens on political speech.” Ariz. Free
Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct.
2806, 2825 (2011). But those cases have concerned attempts
at government intervention designed to adjust for non-
governmental disparities. Here, stricter restrictions during
judicial campaigns on nonjudicial endorsement and
campaigning for sitting judges than for nonincumbent
candidates for judicial positions would create the disparity,
not level it. Such political participation gives judicial
candidates more opportunity for exposure to the electorate,
and more chance to connect with voters on nonjudicial
matters they care about. The inequity of allowing some
candidates for judicial office but not others those
opportunities, when added to the aspirational and appearance
concerns just discussed, seem sufficiently compelling to
justify parallel restrictions for sitting judges and nonjudges,
when both are running for the same judicial office.
In sum, I concur in the main opinion, in light of the
further conclusions I reach in this concurrence.