Arizonans who want to get elected as judges cannot be subject to the same campaign rules and restrictions that apply to those already on the bench, a federal appeals court ruled Friday.
In a split decision, the three-judge panel acknowledged that it might not be fair to prohibit sitting judges from personally soliciting campaign donations while allowing their challengers to do just that. But appellate Judge Richard Paez, writing for the majority, said the need to have judges appear impartial to litigants does not apply to those who may never get elected.
The appellate court also voided other rules that govern the conduct of those who want to be judges, including one that prohibits them from being actively involved in other campaigns, including for other candidates and ballot measures.
But the court sidestepped the larger question of whether such restrictions are appropriate and can be enforced against those who already are judges. Paez said that question will have to wait for another challenge on another day.
Friday's ruling most immediately affects superior court races in the 12 rural counties where superior court judges still are directly elected. In Maricopa, Pima and Pinal counties the judges are chosen through a merit selection process.
The ruling could have statewide implications, affecting races for justices of the peace which remain subject to popular election statewide.
Heather Murphy, spokeswoman for the Commission on Judicial Conduct, which enforces the rules, said panel members are studying the ruling and considering their legal options.
The challenge was brought by Randolph Wolfson who ran for Mohave County Superior Court judge, unsuccessfully, in 2006 and 2008.
Wolfson, however, said he wants to run again, and this time he wants to be able to do things like personally solicit campaign contributions at live appearances and speaking engagements. He also wants to make phone calls and sign his name to letters seeking donations.
But those are currently barred by the state's Code of Judicial Conduct, which prohibits both judges and judicial candidates from personally soliciting or accepting campaign contributions other than through a formal campaign committee.
A federal trial judge upheld the rules, saying that all forms of personal solicitation, whether by a sitting or prospective judge, created “the same risk of coercion and bias.”
Courts have consistently said there are situations where governments can impose limits on a First Amendment right.
Paez said these have to be for a “compelling state interest” and have to be “narrowly tailored to serve that interest.” He said that the rules against solicitation by judicial candidates fail that test.
“States have a compelling interest in maintaining public confidence in the judiciary,” Paez wrote.
But he said that, in allowing judges to be elected, have basically required that they be allowed to speak out, and that includes the ability to solicit funds.
“If a judicial candidate wishes to engage in politicking to achieve a seat on the bench, keeping the public ignorant of that fact may conceal valuable information about how well that candidate may uphold the office of an ideally impartial, apolitical adjudicator,” Paez wrote.