The 9th Circuit Court recently upheld Arizona’s judicial conduct rules limiting partisan political activity by sitting judges and judicial candidates — the first major decision on regulating judicial campaign conduct since the U.S. Supreme Court upheld a narrower law last year.
Need a primer? Here’s some background:
Randolph Wolfson, an Arizona attorney, campaigned for a judgeship in Arizona in 2008 and lost. Wolfson claimed his First Amendment rights were violated by Arizona’s Code of Judicial Conduct, which limits the political activity and fundraising of both judges and judicial candidates, among other restrictions.
He challenged the code and a three-judge panel for the 9th Circuit Court of Appeals agreed, voiding these provisions as applied to non-judges running in judicial elections. The court ruled that the need for judges to appear impartial does not apply to those who may never be elected. The Arizona Commission on Judicial Conduct asked the full 9th Circuit to rehear the case, which it did in September 2015.
The amicus brief was submitted in support of the Arizona Commission on Judicial Conduct on behalf of the Brennan Center for Justice, the Arizona Judges’ Association, Justice at Stake, The Campaign Legal Center, Inc., and Lambda Legal, with pro bono assistance from Jenner and Block.
The Brennan Center submitted an amicus brief in the case, Wolfson v. Concannon, arguing that reasonable rules limiting partisan activity by judges and would-be judges protect the judiciary from political influence and bolster public confidence in the courts.
This was the first judicial conduct case interpreting the U.S. Supreme Court’s ruling in Williams-Yulee v. The Florida Bar in which the Court upheld Florida’s prohibition against the personal solicitation of campaign contributions by judicial candidates. In nearly every state, along with the federal judiciary, judges are also bound by codes of conduct limiting political activity. But in the 39 states that elect judges, many judicial codes limit the partisan activities of judicial candidates.
The Wolfson decision means judicial conduct rules remain intact in the 9th Circuit, by far the largest of the country’s federal courts of appeal. It remains to be seen whether defendants will seek Supreme Court review.
“Judges are not politicians, and the law should not treat them that way,” said Matthew Menendez, counsel at the Brennan Center for Justice. “These rules were adopted specifically to protect the appearance and reality of judicial integrity in states where judges are elected. After the Supreme Court recognized the threat posed by campaign solicitations last year, the 9th Circuit has recognized that the public’s confidence in an independent judiciary can be undermined by judicial candidates engaging in partisan activities.”