Lambda Legal Urges Ninth Circuit to Uphold Arizona Judicial Conduct Code

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June 15, 2015

Lambda Legal today announced it has joined a friend-of-the-court brief in Wolfson v. Concannon, a case before the U.S. Ninth Circuit Court of Appeals concerning the balance between the right to free speech and a state’s compelling interest in preserving public confidence in the courts.

Read the brief.

Upon filing this brief, Lambda Legal Fair Courts Project Manager Eric Lesh issued the following statement:

A critical part of our democracy stands on public confidence in the judiciary. Reasonable regulation of political activities by judges and judicial candidates is paramount to maintaining that confidence. As the Supreme Court opined in Williams-Yulee, judges are not politicians. Imagine if a judge endorsed, or even campaigned on behalf of a candidate for local office, and that candidate was an outspoken opponent of basic rights for LGBT people. That relationship presents a major conflict to members of the LGBT community who might be seeking justice through the courts. A 2014 Lambda Legal survey found that LGBT people generally don't trust the court system as a means of achieving justice. That data showed that only 27% of transgender and gender non-conforming and 33% of LGBT people of color generally trusted the courts. If judges and judicial candidates are allowed engage in partisan political activity, how can judicial integrity and due process really be ensured for these communities?

The case is the first time a federal appellate court will be interpreting the U.S. Supreme Court ruling in Williams-Yulee v. Florida Bar, Lambda Legal’s recent victory where the Court determined that “a State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.” 

In 2006 and 2008, Randolph Wolfson ran unsuccessfully for judicial office in Mohave County, Arizona. Seeking participation in a future election, he challenged the constitutionality of five provisions of the Arizona Judicial Code of Conduct in 2009. The provisions bar judicial candidates from: (1) making speeches on behalf of a political organization or another candidate for public office; (2) publicly endorsing or opposing another candidate for any public office; (3) soliciting funds for or pay an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts 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 or accepting campaign contributions other than through an authorized campaign committee.

In its ruling, the U.S. District Court rejected the notion that judicial candidates should enjoy greater freedom to engage in partisan politics than sitting judges. However, on appeal a three-judge panel of the Ninth Circuit found restrictions on non-judge free speech not to be tailored narrowly enough to hold up under strict judicial scrutiny. On September 26, 2014, at the request of members of Arizona Commission on Judicial Conduct, defendants in the case, the Ninth Circuit announced that it will rehear the case en banc.

Lambda Legal partnered with the Brennan Center for Justice, the Arizona Judges' Association, Justice at Stake and the Campaign Legal Center in filing this friend-of-the-court brief.