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Wolfson v. Brammer

August 13, 2010


Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding D.C. No. 3:08-cv-08064-FJM.

The opinion of the court was delivered by: Wallace, Senior Circuit Judge


Argued and Submitted March 11, 2010 -- San Francisco, California

Before: J. Clifford Wallace, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Wallace; Partial Concurrence and Partial Dissent by Judge Graber


While a candidate for judicial office in Arizona, appellant Randolph Wolfson initiated this action against the members of the Arizona Commission on Judicial Conduct, the members of the Arizona Supreme Court Disciplinary Commission, and Arizona Chief Bar Counsel Robert Van Wyck (collectively, defendants) challenging several canons of the Arizona Code of Judicial Conduct (Code) that restricted his political speech and campaign-related activities while a candidate for judicial office. While this action was pending, Wolfson lost the election. Because the Code applies only to judges and candidates for judicial office, and because Wolfson did not intend to seek judicial office in the next election, the district court dismissed the action as moot.

Wolfson now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.


Wolfson is a practicing attorney and member of the Arizona Bar. He has twice unsuccessfully sought election to judicial office in the State of Arizona. In 2006, Wolfson ran for the office of Kingman Precinct Justice of the Peace in Mohave County, Arizona. During his campaign, Wolfson filed an action alleging that several canons of the Code imposed unconstitutional restrictions on his political speech and campaign activities. Wolfson v. Brammer (Wolfson I), No. CV-06-2357 (Judge Stephen M. McNamee). Wolfson alleged that he wanted to engage in certain campaign-related activities and political speech but refrained from doing so, believing the activities to be prohibited by the challenged canons of the Code. In November 2006, Wolfson lost the election. It is Wolfson's belief that the restrictions on his campaign imposed by the Code contributed to his loss.

Shortly after his defeat, Wolfson decided that he would again seek an elected judicial office in the 2008 elections. In early 2007, Wolfson announced his candidacy for the office of Superior Court Judge, Division V, Mohave County, Arizona. At this time, Wolfson I was still pending.

In August 2007, however, the district court dismissed Wolf-son I on the basis of prudential ripeness. The district court concluded that Wolfson should seek an advisory opinion from Arizona's Judicial Ethics Advisory Committee (Ethics Committee), a body empowered by the Arizona Supreme Court to render, upon request, advisory opinions to judges and judicial candidates. See Matter of Walker, 736 P.2d 790, 795 (Ariz. 1987); Ariz. Sup. Ct. Rule 82(b)(1). An advisory opinion would clarify, to some degree, whether the campaign activities and political speech in which Wolfson wished to engage were prohibited by the Code. Following the district court's dismissal, Wolfson submitted a request to the Ethics Committee for a formal advisory opinion. In April 2008, the Ethics Committee responded to Wolfson's request by issuing Advisory Opinion 08-01.

With the advisory opinion in hand, Wolfson filed the present action in May 2008. Wolfson v. Brammer (Wolfson II), No. CV-08-8064 (Judge Frederick J. Martone). The allegations in the present action are similar to those in Wolfson I: Wolfson alleges that he wanted to engage in certain campaign-related activities and political speech but refrained, believing that the contemplated activities were prohibited by the Code.

First, Wolfson asserts that he wanted to solicit campaign contributions personally, at live appearances and speaking engagements, by making phone calls, and by signing his name to letters seeking donations. Wolfson argues that such solicitations are prohibited by canons 5A(1)(c) and 5B(2) (revised rules 4.1(A)(4) and 4.1(A)(6), respectively) (collectively, the solicitation restrictions).

Second, Wolfson alleges that he wanted to endorse other candidates for office and to support their election campaigns. Wolfson asserts that canons 5A(1)(b) (revised rule 4.1(A)(2) & (3)) (the endorsement clause) and 5A(1)(d) (revised rule 4.1(A)(5)) (the campaigning prohibition) forbid a candidate for judicial office from endorsing other candidates or supporting their campaigns.

Third, Wolfson alleges that he wanted to answer questions from voters and to make presentations regarding his views on disputed legal and political issues, but was prohibited from doing so by canon 5B(1)(d)(i) (revised rule 4.1(A)(9)) (the pledges and promises clause) and canon 3E(1)(e) (revised rule 2.11(A)(5)) (the commits clause).

In November 2008, Wolfson lost the election. After Wolf-son's defeat, the district court ordered him to submit a supplemental brief indicating whether he intended to seek judicial office in the next election. Wolfson replied that he did not. The district court concluded that the action was moot. The district court further held that the action did not meet the exception to mootness for actions "capable of repetition yet evading review."

After the district court's dismissal, the Arizona Supreme Court adopted a new Code of Judicial Conduct. The revised Code, effective September 1, 2009, renumbers and recodifies the canons at issue, but does not alter the substance of the challenged canons, with one exception. In the new Code, the text of the so-called "commits clause" has been substantially revised. The complaint alleged that the commits clause (in addition to the pledges and promises clause) impermissibly restricted the speech of judicial candidates regarding disputed legal and political issues. Wolfson concedes that his claims regarding the commits clause have been rendered moot by the revision of that clause, and so those claims are no longer before us.


We review the district court's dismissal on the grounds of mootness de novo, as a dismissal for lack of subject matter jurisdiction. Rosemere Neighborhood Ass'n v. United States EPA, 581 F.3d 1169, 1172 (9th Cir. 2009). We review factual determinations underlying the district court's decision for clear error. Am.-Arab Anti-Discrimination Comm. v. Thorn-burgh, 970 F.2d 501, 506 (9th Cir. 1991). In this appeal, defendants invoke the additional jurisdictional defenses of standing and ripeness. Standing and ripeness, like the doctrine of mootness, predominantly present questions of law that we review de novo. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1124 (9th Cir. 1996).

[1] Article III of the United States Constitution limits federal court jurisdiction to "actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). We lack jurisdiction "to decide moot questions or abstract propositions," because "moot questions require no answer." North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (internal quotation marks, citations and alterations omitted). A case or controversy must exist at all stages of review, not just at the time the action is filed. Alvarez v. Smith, 130 S.Ct. 576, 580 (2009). A case may become moot after it is filed, "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003), quoting Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001).

[2] An exception to the mootness doctrine exists, however, where an action is "capable of repetition, yet evading review." So. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911). This exception permits actions "for prospective relief to go forward despite abatement of the underlying injury only in exceptional situations... where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Lewis, 494 U.S. at 481 (internal quotation marks and citation omitted).

[3] Wolfson's action easily satisfies the first requirement, as a controversy evading review. "Election cases often fall within this exception, because the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits." Porter, 319 F.3d at 490; see also Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir. 1983) (election cases are likely to escape review because appellate review often cannot be completed during the brief duration of an election). Indeed, this is precisely the situation Wolfson has encountered: being unable to complete the litigation of his claims within the brief time frame of his campaign for judicial office.

To satisfy the second requirement, that the action is capable of repetition, Wolfson must establish a reasonable expectation that he will be subjected to the same action or injury again. Wolfson is not presently bound to obey the Code, and will not be subject to the Code unless he again becomes a candidate for judicial office. Wolfson is not now, and he has never been, subject to any enforcement action or threat of enforcement action related to his campaign conduct. Wolfson argues, however, that this action is capable of repetition because he intends to seek elected judicial office in the future. In the alternative, Wolfson asserts that his intentions toward future candidacy, or lack thereof, are irrelevant to evaluating the application of the "capable of repetition, yet evading review" exception to mootness.

The district court found that Wolfson did not intend to seek judicial office in 2010 or in any other future election. This finding is clearly erroneous. While Wolfson concedes that he does not intend to seek office in the 2010 election, he has declared an intent to seek judicial office at some point in the future. The district court's finding relied on a supplemental brief filed by Wolfson, but that brief does not support such a finding. After Wolfson's defeat, the district court ordered him to submit a supplemental brief answering the following question: "Will you be a candidate for judicial office in the next election?" In his supplemental brief, Wolfson replied: "Plaintiff does not currently intend to be a candidate for judicial office in 2010." On the basis of Wolfson's supplemental brief, the district court concluded that Wolfson's action was not "capable of repetition," because he "affirmatively state[d] that he does not intend to be a candidate in the next election" and failed to "express an intention to be a candidate in any election in the near future."

[4] But Wolfson was not asked about his future intent. Wolfson's response was appropriate for the question posed.

The district court asked Wolfson if he would seek office "in the next election," and Wolfson replied that he currently did not intend to be a candidate for judicial office in 2010. The district court asked a narrow question: whether Wolfson intended to seek office in the "next" election. Wolfson responded that he did not. The district court did not order Wolfson to declare his intentions more generally. We do not fault Wolfson for answering the specific question posed in the ...

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