University of Denver

Ninth Circuit Rejects Campaign Restrictions for Judicial Candidates in Arizona

Former Manager, Quality Judges Initiative

Late last week, the U.S. Court of Appeals for the Ninth Circuit struck down a handful of provisions in Arizona's code of judicial conduct as they apply to the campaign behavior of judicial candidates.

Canon 4 of the code bars both sitting judges seeking reelection or retention and their challengers from personally soliciting campaign contributions except through a campaign committee, being active in other political campaigns, and giving speeches on behalf of, endorsing, and soliciting contributions for other candidates. The Ninth Circuit recognized that states have "a compelling interest in maintaining public confidence in the judiciary" but asserted that electing judges requires that candidates be allowed to speak out. According to the court, "[t]o the extent states wish to avoid a politicized judiciary, they can choose to do so by not electing judges."

The case was brought by an unsuccessful judicial candidate. As such, the court did not rule on the applicability of these provisions to incumbent judges.

Arizona has a hybrid system of judicial selection. Since 1974, appellate judges have reached the bench via commission-based gubernatorial appointment followed by retention elections. Based on their population, superior court judges in the state's three largest counties are also merit-selected, while judges in other counties (as well as justices of the peace statewide) run in contested elections.