The Ninth Circuit en banc has unanimously (with one concurring opinion) upheld three judicial conduct rules in Arizona. In Wolfson v. Concannon, a state judicial candidate challenged a rule that prevented him from personally soliciting contributions. He also challenged additional provisions which “prohibit him, while running for judicial office, from personally soliciting funds for a campaign for another candidate or political organization, publicly endorsing or making a speech on behalf of another candidate for public office, or actively taking part in any political campaign.”
The court relied upon the Supreme Court’s decision last term in the Williams-Yulee case, an unusual case in which Chief Justice Roberts, joined by the four more liberal Justices, upheld Florida’s ban on personal solicitation of campaign contributions by judicial candidates. Aside from the lineup, what made Williams-Yulee unusual was that the Court applied strict scrutiny (usually “strict in theory and fatal in fact”) yet upheld the law.
Today’s en banc Ninth Circuit opinion held the lower court judge erred in applying intermediate scrutiny, given Williams-Yulee, which was decided after the trial court (and Ninth Circuit panel) decision. But under strict scrutiny, the Ninth Circuit today held all three laws (and not just the personal solicitation provision) survived strict scrutiny: “Arizona can properly restrict judges and judicial candidates from taking part in political activities that undermine the public’s confidence that judges base rulings on law, and not on party affiliation.”
Judge Berzon, concurring, wrote:
There is, however, a separate, broader governmental basis for regulating judicial behavior that goes beyond a concern with biased decisionmaking in individual cases. That interest is society’s concern with maintaining both the appearance and the reality of a structurally independent judiciary, engaged in a decisionmaking process informed by legal, not political or broad, nonlegal policy considerations.
This decision, and especially its unanimity, shows that at least some courts will be reading Wiliams-Yulee broadly to uphold a variety of restrictions on judicial candidate political activities. I think that’s a good thing.