Wolfson v. Concannon, et al.

Justia.com Opinion Summary: Plaintiff, an unsuccessful candidate for judicial office in Mohave County, Arizona, filed suit challenging the facial and as-applied constitutionality of certain provisions of the Arizona Code of Judicial Conduct. The court held that Rule 4.1(A)(6) (the solicitation clause) 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. The court held that Rules 4.1(A)(2)-(5) - prohibiting speechifying, endorsements, and fundraising - are not sufficiently narrowly tailored to serve the state's interest in an impartial judiciary, and are therefore unconstitutional restrictions on political speech of non-judge candidates for judicial office. Accordingly, the court reversed the district court's grant of summary judgment in favor of defendants.

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Court Description:

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     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.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RANDOLPH WOLFSON, Plaintiff-Appellant, v. COLLEEN CONCANNON, in her official capacity as member of the Arizona Commission on Judicial 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 No. 11-17634 D.C. No. 3:08-cv-08064FJM OPINION 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, 2013âSan 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 courtâs 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 plaintiffâs status as a non-judge candidate. Applying strict scrutiny, the panel held that the Codeâs 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)â(5), were not sufficiently narrowly tailored to serve the stateâs interest in an impartial judiciary, and were thus unconstitutional restrictions on the political speech of nonjudge candidates. Concurring, Judge Berzon stated that the panelâs 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 stateâs 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 Generalâs 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 DefendantAppellee 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 candidateâs 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 courtâs 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 âCodeâ) 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 1052â53. He intends to run in a future election. Id. at 1054â55. 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 âAn unsuccessful judicial candidate who is a lawyer and violates this code may be subject to discipline under applicable court rules governing lawyers.â 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 âCommissionâ) and Arizona Chief Bar Counsel (âState Bar Counselâ), collectively the âArizona defendants.â5 Wolfson challenges five clauses of Rule 4.1 of the Code (the âRulesâ): (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, 926â27 (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 Wolfsonâs challenges to these clauses (hereinafter the âsolicitationâ clause (6) and âpolitical activitiesâ clauses, (2)â(5)) were justiciable and remanded them to the district court to consider them on the merits. Wolfson I, 616 F.3d at 1054â62, 1066â67. With respect to his challenge to a now-defunct âpledges and promisesâ clause, we held that Wolfson lacked standing to challenge it insofar as it applied to the speech of judges. Id. at 1064. âWolfson cannot assert the constitutional rights of judges when he is not, and may never be, a member of that group.â 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 Arizonaâs Code closely tracks the American Bar Associationâs 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 929â30. The balancing test from Siefert/Bauer âderives from the line of Supreme Court cases upholding the limited power of governments to restrict their employeesâ political speech in order to promote the efficiency and integrity of government services.â Id. at 929. The district court held that this standard âstrikes an appropriate balance between the weaker First Amendment rights at stake and the stronger State interests in regulating the way it chooses its judges,â apparently because the speech at issue was not âcore speechâ deserving of strict scrutiny but âbehavior short of true speech.â Id. at 929â30. 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 â[e]ndorsements, making speeches, and soliciting funds on behalf of other candidates is not . . . core political speech.â Id. at 931. The district court distinguished between announcing oneâs own political views or qualificationsâ speech protected by Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002) (White I )âand the type of speech prohibited by the Rules, which only âadvance[s] other candidatesâ political aspirations, or . . . garner[s] votes by way of political coattails.â Wolfson II, 822 F. Supp. 2d at 931â32. Moreover, although the district court recognized that its review was âlimited to the constitutionality of the Rules as applied to judicial candidates who are not also sitting judges,â 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 âthe Pickering line of cases [upholding the governmentâs power to restrict employeesâ political speech to promote efficiency and integrity of government services] remains relevant to restrictions on the speech of sitting judges.â Id. The court concluded that Rules 4.1(A)(2)â(5) appropriately balanced the stateâs interest in âprotecting the due process rights of litigants and ensuring the real and perceived impartiality of the judiciaryâ against a candidateâs interest in âparticipating in the political campaigns of other candidatesâ and upheld the political activities clauses as constitutional. Id. As for the solicitation clause (Rule 4.1(A)(6)) prohibiting a judicial candidate from âpersonally solicit[ing] or accept[ing] campaign contributions other than through a campaign committee,â the district court held that it was constitutional as applied to non-judge candidates because it struck âa constitutional balanceâ between the stateâs interest in the appearance and actuality of an impartial judiciary and a candidateâs need for funds. Id. at 931. The district court found that all forms of personal solicitation, whether inperson or via signed mass mailings, created âthe same risk of coercion and bias.â 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 âWolfson cannot assert the constitutional rights of judges when he is not, and may never be, a member of that group.â 616 F.3d at 1064. Nonetheless, although we reject the Arizona defendantsâ 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 courtâs 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. (âPetitioner Gregory Wersal was not a sitting 12 WOLFSON V. CONCANNON based on Wolfsonâs 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 Wolfsonâs 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 judgesâwhether campaigning or notâfit into the ânarrow class of speech restrictionsâ that may be constitutionally permissible if âbased on an interest in allowing governmental entities to perform their functions.â Citizens United v. Fed. Election Commân, 558 U.S. 310, 341 (2010). We are not persuaded that âfundamental fairness,â 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.â). Nor do we take a position on a question explicitly unresolved by the Supreme Court in White I: whether the First Amendment ârequires campaigns for judicial office to sound the same as those for legislative office.â Id. at 783 (majority opinion). 8 âWhen a person becomes a judicial candidate, this canon becomes applicable to his or her conduct.â 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 judgesâonly 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 judgesâ speech are constitutionally justified by the interest in allowing the judiciary to function optimally, nor are we squarely presented with that question. We neither ââanticipate a question of constitutional law in advance of the necessity of deciding itâ nor âformulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.ââ 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, 748â49 (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) (â[T]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.â (internal quotation marks omitted)). We recently applied strict scrutiny to another state statute regulating judicial elections because it was, âon its face, a content-based restriction on political speech and association [which] thereby threaten[ed] to abridge a fundamental right.â 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 Entmât 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, 198â99 (6th Cir. 2010). The canons do not address any of the âcategorical carve-outsâ 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 198â99; White II, 416 F.3d at 749, 764â65; Weaver v. Bonner, 309 F.3d 1312, 1319 (11th Cir. 2002). We are not persuaded by the Seventh Circuitâs 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 âcampaign finance regulationâ and applied the âclosely drawn scrutinyâ 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 contributionâthough by default, because the solicitation ban was not an expenditure restriction. Id. Contrary to the Arizona defendantsâ argument, the solicitation clause at issue here is not a restriction on a campaign contribution within the meaning of Buckley, 424 U.S. at 26â27. Arizonaâs solicitation ban does nothing at all to limit contributions to a judicial candidateâs campaignâeither 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 21â22. The Rule at issue here restricts only the solicitation for the contributionsâthe speech of the candidate.9 Indeed, Buckley says nothing at all 9 See also Carey, 614 F.3d at 200 (â[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)âprecisely the kind of content- 16 WOLFSON V. CONCANNON about solicitation, other than to note that candidates will ask for contributions. Buckleyâs 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 âa balancing approachâ derived from a line of cases determining the speech rights of government employees. Siefert, 608 F.3d at 983â87. As noted in Part II.B, here we consider only the speech rights of Wolfson as a private citizen and judicial candidateânot yet, and perhaps never, a government employee. â[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.â 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.â (internal citation omitted) (emphasis in original)). 10 Nor are we persuaded by the Commission defendantsâ argument that the rules prohibiting solicitation âdo not involve core political speech,â and that â[w]hen a candidate says âgive me money,â he adds nothing to the full and fair expression of ideas that the First Amendment protects.â 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) (âIt is uncontested that the solicitation at issue in this case is a form of speech protected under the First Amendment.â); Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 629 (1980) (â[S]oliciting funds involves interests protected by the First Amendment's guarantee of freedom of speech.â); Bates v. State Bar of Ariz., 433 U.S. 350, 363 (1977) (observing that the First Amendment protects speech âin the form of a solicitation to pay or contribute moneyâ). This argument is wholly without merit. WOLFSON V. CONCANNON 17 cases to apply a lower level of scrutiny to the restrictions on Wolfsonâs First Amendment rights during a judicial campaign. The Seventh Circuit also reasoned that a balancing approach was appropriate because endorsements are âa different form of speechâ outside of âcoreâ political speech thus having âlimited communicative value,â and when judges make endorsements they are âspeaking as judges, and trading on the prestige of their office to advance other political ends.â 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: âThus, political speechâincluding the endorsement of candidates for officeâis at the core of speech protected by the First Amendment.â 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 nonjudge candidate cannot trade on the prestige of an office that candidate does not yet hold. We share the Seventh Circuitâs concerns about protecting litigantsâ due process rights, which we recognize as a compelling state interest. That court reasoned that because ârestrictions on judicial speech may, in some circumstances, be required by the Due Process Clause,â states could regulate even political speech by judges if the regulations served the stateâs interest in protecting litigantsâ 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 âlimited communicative valueâ 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 candidateâs political speech are narrowly tailored to serve the stateâs compelling interest in protecting litigantsâ due process rights. Narrow tailoring is most appropriate. Although we could scarcely imagine a more compelling state interest, we also recognize that âdue processâ concerns arise not in the ether, but âonly . . . in the context of judicial proceedings.â 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 âpotential for due process violationsâ or the âprobability of unfairness.â See White I, 536 U.S. at 815â16 (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 âEven 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.â 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 (OâConnor, J., concurring) (âIf 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.â).13 Moreover, there is an equally compelling state interest in the free flow of information during a political campaign. âDeciding the relevance of candidate speech is the right of the voters, not the State.â 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. âThe 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.â 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) (âThe 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 Californiaâs decision to conduct judicial elections. If California wishes to elect its judges, it must allow free speech to prevail in the election process.â). 20 WOLFSON V. CONCANNON (2002). Along with knowing a candidateâs 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 Arizonaâs state interests. Then, we analyze whether the solicitation clause (Rule 4.1(A)(6)) and the political activities clauses (Rules 4.1(A)(2)â(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 775â76. The meaning of âimpartialityâ 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. & Polây Rev. 301, 356 (2003) (â[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 judgesâ decisions. Accordingly, because there is nothing âcorruptâ 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.â). 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 26â27; 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 âthe 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.â This argument is, essentially, that states have a compelling interest in regulating candidatesâ 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 âjudicial campaign abuses that threaten to imperil public confidence in the fairness and integrity of the nationâs elected judges.â 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 (OâConnor, 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 âchange the circumstances or pressures that cause the candidates to want to make [prohibited] statements,â and that â[j]udicial campaign speech codes are therefore much more about maintaining appearances by hiding reality than about changing reality.â 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 âpreventing judges and judicial candidates from using the prestige of their office or potential office for purposes not related to their judicial duties.â 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 âpersonally solicit[ing] or accept[ing] campaign contributions other than through a campaign committee authorized by Rule 4.4.â Rule 4.1(A)(6).16 The Code defines âpersonally solicitâ as âa 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.â Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of Jud. Conduct, âTerminologyâ (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 âpolitical organization.â But the Code explicitly carves out a judicial candidateâs campaign committee from the definition of âpolitical organization.â See Ariz. Rev. Stat. Ann. § 17A, Sup. Ct. Rules, Rule 81, Code of Jud. Conduct, âTerminologyâ (2009). Therefore, we analyze Rule 4.1(A)(4) alongside (A)(2)â(3) and (5), because it prohibits a judicial candidate from soliciting funds on behalf of or donating to a specific political organization or candidateâclassic 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. Arizonaâs sweeping definition of âpersonally solicitâ 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 courtâs cogent analysis of this issue. â[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.â Id. at 205. The clauses are also underinclusive: a personal solicitation by a campaign committee member who may be the candidateâs best friend or close professional associate (such as a law practice partner) is likely to have a greater risk for âcoercion and undue appearanceâ than a signed mass mailing or request during a speech to a large group. Id. Moreover, the Code does not prohibit a candidateâs 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 candidateâs 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 committeeâs request? Wersal teaches that the in-person ââaskâ is precisely the speech [a state] must regulate to maintain its interest in impartiality and the appearance of impartialityâ because of the greater risk of a quid pro quo. 674 F.3d at 1029â31. Indeed, we agree with State Bar Counselâs argument that âthe very act of asking for money, personally, creates the impression that judge (and justice) may be for sale.â But the clause here sweeps more broadly. It is not necessary âto decide today whether a State could enact a narrowly tailored solicitation clauseâsay, one focused on one-on-one solicitations or solicitations from individuals with cases pending before the courtâonly that this clause does not do so narrowly.â Carey, 614 F.3d at 206 (emphasis in original).18 17 The lack of a non-disclosure-to-the-candidate requirement in Arizonaâs 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 âbarely tailored at all to serve [the end of impartiality as to parties in a particular case]â or an interest in âopen-mindedness.â 416 F.3d at 765â66. 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 Minnesotaâs Code of Judicial Conduct permitted solicitation of groups and of a judgeâs intimates. Wersal, 674 F.3d at 1028â29. 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)â(5) as the âpolitical activitiesâ 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 stateâs 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)â(4)âprohibiting speechifying, endorsements, and fundraisingâpresent 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 âanother candidate for public officeâ because such an endorsement âcreates a risk of partiality outcome from that in White II, where an earlier version of the stateâs Code of Judicial Conduct prohibited group solicitation and banned judges and candidates from signing fund appeal letters. Id. at 1029. Direct personal solicitation âgives rise to a greater risk of quid pro quo,â id., but the scope of Arizonaâs solicitation clause is broader than Minnesotaâs and we must consider all of the affected speech. 26 WOLFSON V. CONCANNON towards the endorsed party and his or her supporters.â Wersal, 674 F.3d at 1024, 1025. The plurality concluded that the clause was narrowly tailored to serve the stateâs 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 pluralityâs judgment on the separate ground that the endorsement clause served the distinct compelling state interest in âprotecting the political independence of its judiciary.â Id. at 1033 (âAn endorsement links the judicial candidateâs 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 independenceâthat we are a âgovernment of laws, not of men.ââ) (Loken, J., concurring.). 20 The Wersal plurality concluded that the Minnesota endorsement clause was not underinclusive but only by reference to what it restricted: âendorsements for other candidate[s] for public office.â Id. at 1027 (internal quotation marks omitted) (emphasis added). That plurality noted that a separate clause in Minnesotaâs Code of Judicial Conduct prevented a judge or judicial candidate from making any statement that would âreasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court,â 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 candidateâs speech, rather than the candidate status of its target. WOLFSON V. CONCANNON 27 elected official, or may have donated large sums of money to anotherâs 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 âannounce clauseâ was underinclusive, the Court said In Minnesota, a candidate for judicial office may not say âI think it is constitutional for the legislature to prohibit same-sex marriages.â 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 779â80. Here too, Rules 4.1(A)(2)â(4) are âwoefully underinclusiveâ 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 partyâs political campaign or gave an endorsement is an unworkable alternative. â[B]ecause restricting speech should be the governmentâs tool of last resort, the availability of obvious less-restrictive alternatives renders a speech restriction overinclusive.â 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 stateâs concerns would be to require recusal in cases where the new judgeâs 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 singlejudge counties. See Dissent at 46; Wersal, 674 F.3d at 1027â28 (posing the hypothetical that âcandidates and judges would be free to endorse individuals who would become frequent litigants in future cases, such as county sheriffs and prosecutorsâ). 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 âactively tak[ing] part in any political campaign other than his or her own campaign for election, reelection, or retention in officeâ 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 (â[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 judgeâs former campaign speech poses a problem, to assign that case to another judge.â). WOLFSON V. CONCANNON 29 Thus, Rule 4.1(A)(5) unconstitutionally prohibits protected speech about legal issues. White I, 536 U.S. at 776â78. IV. For these reasons, we reverse the district courtâs 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 âbrushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.â 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 Kausâ 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 âcrocodileâ stalking todayâs 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 â and designedly â 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. Todayâs opinion addresses the constitutionality of certain provisions of the Arizona Code of Judicial Conduct (âCodeâ) only as they apply to judicial candidates who, like Wolfson, have not yet ascended to the bench. It does not decide those provisionsâ 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, âhold their Offices during good Behaviour,â U.S. Const. art. III, § 1, and never sit for election. In the name of prudence and constitutional avoidance, the majorityâs 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 todayâs 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 â the solicitation ban â directly relates to a judicial candidateâs own campaign for office.2 The remainder prohibit a would-be judgeâs 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 candidatesâ 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)â(5). WOLFSON V. CONCANNON 33 II. In applying strict scrutiny to a judicial candidate who is not now a judge, todayâs majority opinion rightly rejects the Seventh Circuitâs approach, which applies to political restrictions on elected sitting judges a balancing test derived from the Supreme Courtâs 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 governmentâs interest âin promoting the efficiency of the public services it performs through its employeesâ 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 âboth 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.â Garcetti v. Ceballos, 547 U.S. 410, 420 (2006). And that test recognizes that âthere are certain governmental functions that cannot operate without some restrictions on particular kinds of speech.â Citizens United v. Fed. Election Commân, 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 judgesâ 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: âWhether 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 â regardless of whether they are campaigning â in order to promote the efficient administration of justice, is not an issue raised here.â 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 â[p]ublicly endors[ing] or speak[ing] on behalf of [a political partyâs] candidates or platforms,â id. at 978â79. It reasoned that the governmentâs authority as an employer, âits duty to promote the efficiency of the public services it performs,â and the imperative that âthe work of the judiciary conform[] with the due process requirements of the Constitutionâ justified a less rigorous balancing test for restrictions on elected sitting judgesâ 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 710â11. 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 143â44, the nature of government employment is a necessary component of their reasoning. Pickering recognized as much, commenting that âit 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.â 391 U.S. at 568. The public employee speech cases thus recognize the âcrucial difference, with respect to constitutional analysis, between the government exercising âthe power to regulate or license, as lawmaker,â and the government acting âas proprietor, to manage [its] internal operation.ââ Engquist v. Or. Depât 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 Wolfsonâs speech today. The Supreme Court has recognized as a âvital state interestâ the interest in maintaining those âsafeguard[s] against judicial campaign abuses that threaten to imperil public confidence in the fairness and integrity of the nationâs elected judges.â 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, ââjustice must satisfy the appearance of justice.ââ In re Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). â[T]he appearance of evenhanded justice . . . is at the core of due process.â 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 lawâs emphasis on impartiality derives from the obligations imposed by the due process clause, particularly âthe proposition that an impartial judge is essential to due process.â 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 himse