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En Banc Granted in Ariz. Judge's Campaign Funding Case

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By William Peacock, Esq. on September 30, 2014 12:33 PM

Arizona elects its judges in counties with fewer than 250,000 people (everywhere but Maricopa, Pima, and Pinal counties). It also has a Code of Judicial Conduct that restricts how both incumbent and prospective judges campaign for office.

What's prohibited? Try everything, as long as its campaign-related. More specifically, that'd be: giving speeches on behalf of others, endorsing others, soliciting money for others, campaigning for others, and a ban on solicitation of funds for your own campaign. Have no friends, or opinions, and pay out of pocket, essentially.

Randolph Wolfson, a 2008 candidate who lost, challenged these rules and lost in federal district court. However, the Ninth Circuit, in a 2-1 opinion, held that all five prohibitions were unconstitutional as applied to non-judge candidates. On Friday, the full Ninth Circuit granted an en banc rehearing of the case.

En Banc for Free Speech Challenge to Ariz.'s Code of Judicial Conduct

"A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate's campaign speech," Judge Richard A. Paez wrote for the majority, which found that all five provisions violated the rights of non-judges seeking office.

Judge Paez, while recognizing that Arizona has an interest in an impartial judiciary, did have a simple solution, however: "To the extent states wish to avoid a politicized judiciary, they can choose to do so by not electing judges."

Paez's opinion tore through all five provisions, holding that they were not narrowly tailored as applied to non-judge candidates. For the personal solicitation ban, he called it over inclusive, quoting the Sixth Circuit's take: "[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." (alterations in original).

For the "political activities" ban, Paez held that it was under-inclusive, as it only addresses speech that occurs once the candidate has filed for office. Of course, a candidate can do whatever he or she pleases, such as running someone else's campaign, up until the paperwork is filed, yet he or she would be no less indebted or impartial.

Judge Marsha Berzon's concurrence emphasized that the opinion only applies to non-judges seeking to ascend to the bench, while Judge Richard Tallman partially dissented, writing that some of the restrictions on campaigning and soliciting for others were narrowly tailored towards maintaining impartiality.

SCOTUS Is Considering a Similar Case

Interestingly, the U.S. Supreme Court currently has a petition out of Florida in a very similar case, one challenging that state's ban on solicitation. Lanell Williams-Yulee, a candidate for the bench, was reprimanded for signing on to a fund-raising letter, reports The New York Times. Both Williams-Yulee and the Florida Bar have urged the High Court to hear the case, and with a split among the lower courts, it's quite possible that the Court will grant cert. this week.

If so, it could affect the pending en banc rehearing in the Ninth Circuit.

The Times notes that in 2009, the Court required the West Virginia Supreme Court Chief Justice to recuse himself, saying that the $3 million in campaign spending by an interested party could give rise to a "debt of gratitude." Ironically, seven months later, the Court decided Citizens United.

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