Victory for Fair Courts! Ninth Circuit Upholds Arizona Judicial Conduct Code

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January 27, 2016
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Eric Lesh, Lambda Legal Fair Courts Project Manager

In a major victory for fair courts, the U.S. Ninth Circuit Court of Appeals today ruled in Wolfson v. Concannon that the rules in the Arizona Judicial Conduct Code restricting political activities of judges and judicial candidates do not violate the U.S. Constitution.

In upholding the judicial campaign rules, the court found the “compelling interest in preserving public confidence in the integrity of judiciary warrants a favorable view of Arizona’s attempt to foreclose judicial candidates from engaging in political campaigns other than their own.”

In June 2015, Lambda Legal joined a friend-of-the-court brief in Wolfson v. Concannon. The case marked the first time a federal appellate court would be interpreting the U.S. Supreme Court ruling in Williams-Yulee v. Florida Bar, 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.”

Following the announcement, Lambda Legal Fair Courts Project Manager Eric Lesh said:

Our democracy is eroded without a fair, independent judiciary. Today’s decision again drives home the message ‘judges are not politicians.’ Regulations like those in Arizona are designed to protect that principle.

When judicial candidates actively participate in political campaigns members of marginalized communities question whether cases are decided fairly and free of political interference. LGBT people can encounter bias and discrimination in the courts, so it is imperative that clear rules be in place to ensure judicial integrity and due process for everyone.

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 free speech by judicial candidates who are not judges not to be tailored narrowly enough to hold up under strict judicial scrutiny. In September 2014, at the request of members of Arizona Commission on Judicial Conduct, the Ninth Circuit announced that it would rehear the case en banc. In today’s ruling, the en banc court affirmed the district court’s ruling in favor of defendants, upholding the rules.

Read the press release.