UPDATE: On 1/27/2016, a unanimous en banc Ninth Circuit upheld all of the canons at issue. Relying on the Supreme Court’s decision in Williams-Yulee, the court found that the limitations on personal solicitation and partisan activities passed constitutional muster. Applying strict scrutiny, the court explained that the challenged provisions of the Arizona Code of Judicial Conduct “further a compelling interest and [are] narrowly tailored to achieve that interest.” In concurrence, Judge Berzon emphasized that in addition to the compelling interest in preventing biased decisionmaking, the canons were narrowly tailored to serve an additional compelling interest, “maintaining an independent judiciary.”
UPDATE: On 6/12/2015 the Brennan Center and allies filed a brief amicus curiae in support of Defendants-Appellees. The case is currently under en banc review by the Ninth Circuit.
In Arizona, counties with fewer than 250,000 people elect their judges. Both judge and non-judge candidates must comply with the ethical standards set forward by the Arizona Code of Judicial Conduct. In Wolfson v. Concannon, an unsuccessful candidate for judicial office in Arizona has challenged provisions of the Code, alleging they restrict his speech, violating his First Amendment rights. The judicial canons in question include those that prohibit judicial candidates from: (1) making speeches on behalf of political organizations or candidates for public office; (2) publicly endorsing or opposing political candidates publically; (3) soliciting funds on behalf of, or contributing funds to any candidate or political organization in excess of the amounts permitted by law, or making total contributions in excess of fifty percent of the cumulative total permitted by law; (4) actively taking part in any political campaign other than his or her own campaign for election, reelection, or retention in office; and (5) personally soliciting campaign contributions other than through a campaign committee.
A district court ruling upheld the canons, granting summary judgment in favor of the Arizona state officials. However, in a split decision, a three judge panel of the Ninth Circuit of the U.S. Court of Appeals reversed the district court’s decision. The Ninth Circuit panel’s ruling emphasized that it based its analysis on the distinction between judge and non-judge candidates, finding the canons unconstitutional only as applied to the latter group. Where the district court had rejected the notion that judicial candidates ought to enjoy greater freedom to engage in partisan politics than sitting judges, the Ninth Circuit panel found the restrictions on non-judge free speech to be insufficiently narrowly tailored to hold up under strict scrutiny.
The Brennan Center, along with the Arizona Judges’ Association, American Judicature Society, Justice at Stake, and The Campaign Legal Center filed an amicus brief in support of the state’s petition for the case to be reheard en banc. Amici were represented pro bono by Kaye Scholer LLP.
On 9/26/2014, the Ninth Circuit ordered that the case be reviewed en banc but stayed the case pending a decision in a judicial canons case being heard by the U.S. Supreme Court. In April 2015, the Supreme Court’s decision in Williams-Yulee v. The Florida Bar affirmed the constitutionality of the judicial canon prohibiting personal solicitation but did not address the other four canons at issue in Wolfson.
On 6/12/2015, the Brennan Center, along with the Arizona Judges’ Association, Justice at Stake, the Campaign Legal Center, and Lambda Legal Defense and Education Fund, filed a brief amicus curiae in support of Defendants-Appellees with the Ninth Circuit. Amici were represented pro bono by Jenner and Block. The brief argues that the political activities rules at issue protect Arizona’s compelling state interest in judicial integrity in both elective and non-elective contexts and, additionally, that the rules are integral to the Arizona Code of Conduct, itself an essential component of the state’s nonpartisan judicial elections, a system picked specifically to further the same compelling interest in judicial integrity.
The conflict in Wolfson v. Concannon arises from the fundamental tension between the ideals of judicial independence and unfettered speech in the electoral political process. Determining how we balance these interests is fundamental to maintaining the public’s confidence in our judiciary going forward.
Ninth Circuit En Banc Decision
Ninth Circuit En Banc Proceedings
Petition for Rehearing En Banc