Wolfson v. Concannon

Free speech restrictions by states on non-judge candidates running for judicial office must be based on a compelling state interest and must be narrowly tailored to achieve that interest.

Plaintiff Randolph Wolfson unsuccessfully ran for judicial office in Arizona in 2006 and 2008. During his candidacy, Wolfson identified certain provisions of the Arizona Code of Judicial Conduct (“the Code”) that he considered to be unconstitutional. The Code regulates the campaigning process for judicial office and requires disciplinary action for violators of the Code. Wolfson brought suit challenging these provisions. The district court granted summary judgment to the State of Arizona. The Ninth Circuit began its analysis by pointing out that Wolfson was a non-judge candidate and that it is inherently unfair to regulate current judicial candidates and non-judge candidates under the same scrutiny. Thus, the panel chose to only examine the regulations in question as they apply to non-judge candidates. The panel went on to explain that first amendment issues in must survive strict scrutiny. Therefore, Arizona will have to prove that it had a compelling interest for the regulations, and that the regulations in question were narrowly tailored to meet that interest. The panel agreed that all states have a compelling interest in maintaining fair and unbiased judicial elections. However, when analyzing the scope of the regulations the panel found that they were too broad. Because Arizona could not explain why alternative narrower regulations were insufficient, the panel explained that the regulations were too broad to meet the state’s interest. The panel held that the regulations did not meet strict scrutiny and are unconstitutional in the restriction of free speech amongst non-judge candidates for judicial office.

REVERSED AND REMANDED.