Brief: Arizona Should Hold All Judicial Candidates to Same Campaign Rules

Arizona should hold non-judge candidates to the same campaign rules as sitting judges during judicial elections, argues the Brennan Center for Justice at NYU School of Law in an amicus brief filed today with the U.S. Court of Appeals for the Ninth Circuit.

The brief, submitted with the Arizona Judges’ Association, American Judicature Society, Justice at Stake, and The Campaign Legal Center, urges the Ninth Circuit to rehear a decision made by a three-judge appellate panel that struck down rules of judicial conduct for non-judge candidates.

“A judge and a non-judge should not be held to different campaign rules and restrictions during the same judicial election,” said Matthew Menendez, counsel at the Brennan Center for Justice. “The impartiality of Arizona’s courts is called into question when any judicial candidate solicits campaign contributions from donors who may later appear before the court, or when a candidate endorses, raises money for, and campaigns for partisan candidates for non-judicial offices.”

Randolph Wolfson, an Arizona attorney who campaigned for a judgeship in Arizona in 2008 and lost, challenged five of Arizona’s Codes of Judicial Conduct — which limit judges’ and judicial candidates’ political speech and ability to fundraise during an election, among other restrictions — claiming that his First Amendment rights were violated. 

Last month, a three judge appellate panel agreed, ruling that the need for judges to appear impartial does not apply to those candidates that may never be elected. If allowed to stand, non-judge candidates will be permitted to directly solicit campaign contributions and become more involved in political races for non-judicial offices.  However, sitting judges campaigning for election will continue to be bound by these five canons, creating different sets of rules for candidates in the same election.

The Arizona Commission on Judicial Conduct filed a petition for a rehearing of the case (Wolfson v. Concannon) this time before an en banc panel of the U.S. Court of Appeals for the Ninth Circuit. The Brennan Center, along with the other organizations who filed the amicus brief, are represented pro bono by Kaye Scholer LLP.

Read the amicus brief here.

For more information, please contact Seth Hoy at seth.hoy@nyu.edu or (646) 292 8369