Wolfson v. Concannon, et al., No. 11-17634 (9th Cir. 2014)
Annotate this CasePlaintiff, 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.
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 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.
The court issued a subsequent related opinion or order on September 26, 2014.
The court issued a subsequent related opinion or order on January 27, 2016.
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