Williams-Yulee controls

Last April, the U.S. Supreme Court, in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions.  (There is a longer, previous post summarizing the case on the blog here.)  Last week, in the first major application of that decision, the U.S. Court of Appeals for the 9th Circuit, sitting en banc, upheld the personal solicitation clause in the Arizona code of judicial conduct and other clauses prohibiting judicial candidates from, for example, making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon (9th Circuit en banc January 27, 2016).

The plaintiff in Wolfson, a former judicial candidate in Arizona, attempted to distinguish Williams-Yulee because, he argued, Florida and Arizona advance different interests in their respective personal solicitation prohibitions.  According to the plaintiff, Florida’s interest was in “public confidence in the integrity and independence of judges.  The integrity and independence of judges depend in turn upon their acting without fear or favor,” quoting Florida’s Canon 1 and commentary.  Arizona’s interest, he argued, was in the public’s perception of “the judge’s honesty, impartiality, temperament, or fitness,” quoting that state’s Rule 1.2 and Comment 5.   “An interest in judicial ‘honesty, impartiality, temperament, or fitness,’” the plaintiff argued, is “different than a concern for ‘fear or favor.’”

However, the 9th Circuit concluded that “is a distinction without a material difference.”

Even if Arizona adopted slightly different language for its articulation of its interest, Arizona is similarly interested in upholding the judiciary’s credibility.  There are no magic words required for a state to invoke an interest in preserving public confidence in the integrity of the state’s sitting judges.

The 9th Circuit also concluded that all of the plaintiff’s arguments about the clauses being overbroad, underinclusive, or not the least restrictive means of advancing the state’s interest were foreclosed by the decision in Williams-Yulee.  For example, the 9th Circuit rejected the plaintiff’s argument that recusal would be the best way to handle impartiality or the appearance of impartiality.

[R]ecusal is no answer at all, and this unworkable alternative was flatly dismissed in Williams-Yulee.  A rule requiring judges to recuse themselves from every case where they endorsed or campaigned for one of the parties could “disable many jurisdictions” and cripple the judiciary. . . .  Four of Arizona’s counties have only one superior court judge and two other counties have only two superior court judges. . . .  Campaigning for frequent litigants would cause an insurmountable burden that other judges and other counties may not be able to bear.  Moreover, an extensive recusal record could cause the same erosion of public confidence in the judiciary that Arizona’s Endorsement Clauses and Campaign Prohibition are trying to prevent.

One judge wrote a concurring opinion to emphasize that the restrictions were supported by the societal interest in maintaining an independent judiciary by preventing judges from becoming political powerbrokers or political pawns.

The campaign and endorsement restrictions respond to a structural need — they restrict judges from engaging in nonjudicial campaigns, to prevent them from being entangled in the legislative and executive political process.  Judges must have the confidence to stand firm against nonjudicial elected officials.  That confidence could give way — or appear to give way — if judges behave just like those elected officials, by engaging in the usual, often contentious and fiercely partisan, political processes


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