Wolfson v. Brammer
2010 WL 3191159, 616 F.3d 1045, 2010 U.S. App. LEXIS 16766 (2010)
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Rule of Law:
A pre-enforcement challenge to election laws that restrict a candidate's speech is not rendered moot by the conclusion of the election if the controversy is 'capable of repetition, yet evading review.' This exception applies when the candidate demonstrates a reasonable expectation of running for office again in the future, even if not in the immediately succeeding election.
Facts:
- Randolph Wolfson, an Arizona attorney, ran for the office of Kingman Precinct Justice of the Peace in 2006.
- During his campaign, Wolfson wished to personally solicit campaign contributions, endorse other candidates, and speak on disputed legal issues, but refrained from doing so, believing these actions were prohibited by Arizona's Code of Judicial Conduct.
- Wolfson lost the 2006 election, and he believed the Code's restrictions on his speech contributed to his defeat.
- In 2007, Wolfson announced his candidacy for Superior Court Judge in the 2008 elections.
- During his 2008 campaign, Wolfson again refrained from engaging in the same desired political speech and campaign activities due to the Code.
- Wolfson lost the 2008 election.
- After his 2008 defeat, Wolfson stated he did not intend to be a candidate in the 2010 election but has since represented that he intends to seek judicial office again in a future election.
Procedural Posture:
- In 2006, Wolfson filed his first lawsuit (Wolfson I) in U.S. District Court challenging Arizona's Code of Judicial Conduct.
- In August 2007, the district court dismissed Wolfson I on prudential ripeness grounds, directing him to seek an advisory opinion from the state's Judicial Ethics Advisory Committee.
- Wolfson sought and received Advisory Opinion 08-01 from the Committee in April 2008.
- In May 2008, Wolfson filed the present action (Wolfson II) in U.S. District Court.
- After Wolfson lost the November 2008 election, the district court ordered him to submit a brief regarding his intent to run in the next election.
- Based on Wolfson's response that he did not intend to run in 2010, the district court dismissed the action as moot.
- Wolfson, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a former judicial candidate's pre-enforcement challenge to judicial conduct rules that restrict campaign speech become moot when the candidate loses the election but expresses a clear intention to run for judicial office again in the future?
Opinions:
Majority - Wallace, Senior Circuit Judge
No, the former judicial candidate's challenge does not become moot. The action falls within the 'capable of repetition, yet evading review' exception to the mootness doctrine. The court reasoned that the first prong of the test, evading review, is met because the short duration of an election cycle makes it nearly impossible to fully litigate such claims on the merits before the election concludes. The second prong, capable of repetition, is also met because Wolfson has declared a clear intention to seek judicial office again in the future, creating a reasonable expectation that he will be subject to the same challenged restrictions again. The court also held that Wolfson's claims regarding solicitation and endorsement rules were ripe for review due to the chilling effect on First Amendment speech, but his challenge to the 'pledges and promises' clause was not ripe because he had no intent to violate it and thus no well-founded fear of prosecution.
Concurring-in-part-and-dissenting-in-part - Graber, Circuit Judge
No, the challenge does not become moot, and I concur with the majority on nearly all issues. However, the claims against the Arizona Commission on Judicial Conduct are not ripe. The Commission only gains disciplinary jurisdiction over a candidate if they win the election. Since whether Wolfson will win a future election is a speculative and contingent future event, there is no genuine or imminent threat of prosecution from that specific defendant, rendering the claims against it unripe for judicial review.
Analysis:
This decision reinforces the application of the 'capable of repetition, yet evading review' exception in election law, ensuring that constitutional challenges to campaign speech restrictions are not easily dismissed as moot. It clarifies that a candidate's stated intent to run in the indefinite future, not just the next immediate election, is sufficient to preserve a live controversy. The court's bifurcated ripeness analysis is also significant; it protects plaintiffs from the chilling effect of clearly applicable rules (solicitation, endorsement) while declining to hear speculative challenges to rules that do not plausibly cover the plaintiff's intended conduct ('pledges and promises' clause). This provides a roadmap for future litigants in pre-enforcement First Amendment challenges.
