Arizona Commission on Judicial Conduct butts in on local judicial election

The Republic carried a story over the weekend on the inappropriate efforts of the partisan Arizona Commission on Judicial Conduct, a commission under the control of the Arizona Supreme Court, to inject itself into a local justice of the peace election. Commission Executive Director E. Keith Stott sent a “courtesy notice” ordering Republican justice of the peace hopeful Jolene Penson to censor her own campaign signs. The offending free speech was wording on her sign touting the endorsement of Maricopa County Attorney Andrew Thomas.

You might be wondering whatever happened to free speech. Or how voters are supposed to know who to vote for if the judiciary censors free speech. Those are good questions. The worst part about this is that in 2002, in Minnesota Republican Party v. White, the U.S. Supreme Court affirmed the free speech rights of judicial candidates. In no uncertain terms, the Supreme Court made clear that the efforts of liberal bar associations and state judiciaries to gag judicial candidates and keep the public in the dark through so-called “ethical cannons” was unconstitutional.

All lawyers, including our judges, take an oath to uphold the U.S. Constitution. But our own state judiciary does not like this Supreme Court opinion so they have simply ignored it and not changed the state’s judicial ethics rules to bring them into compliance with the U.S. Constitution. In doing this, they not only violate the U.S. Constitution, but they violate their oath to uphold the Constitution. In reality, Ms. Penson did not run afoul of any ethical rule because the ethical rule in question is unconstitutional. But nonetheless, the failure of the Arizona judiciary to amend its rule to conform to the constitution allowed the liberal partisans at the Commission on Judicial Conduct to write a letter, leak it to the media, and smear Ms. Penson, a conservative Republican.

There’s a larger issue here, and that is that liberal interests, which include our state judiciary, are desperately trying to keep the judiciary as liberal as possible. If voters knew how liberal the current crop of judges are, they would be ridden out of town on a rail. The way the judiciary prevents that from happening is by gagging judicial candidates who would otherwise tell the truth about liberal judges.

Fortunately, a lawsuit has been filed by Mohave County judicial candidate Randolph Wolfson to force the judiciary to amend its ethical rules so they no longer violate the Constitution. The Republic had a good article on it in June. Even ultraliberal ASU law professor Paul Bender predicted that the current ethical rules would be struck down:

“Bender, the ASU professor, said Wolfson likely will succeed in securing the right to publicly take a stand on political issues based on the Minnesota precedent. ‘If you’re going to let them run for election, it’s a little hard to tell them they cannot announce their views.'”

These efforts come too late for Jolene Penson. The state judiciary, through its Commission on Judicial Conduct, has already succeeded in smearing her for engaging in constitutionally protected activity–free speech, and in the process hurting her chances of becoming a justice of the peace.


  1. Conservative activist says

    The absurdity of this rule can be seen in that it is acceptable for Penson to put that she has been endorsed by County Supervisor Fulton Brock, just not County Attorney Andrew Thomas. It is much more RELEVANT that the County Attorney endorsed her. Voters should be entitled to know that Penson is endorsed by the law enforcement side of the legal profession. It’s ok for candidates from the criminal defense side to put that they’re endorsed by the “Criminal Defense Association.” So those candidates from the law enforcement side are unfairly penalized by not being able to indicate this.

    One of the key issues in deciding whether to vote for a judicial candidate or not is what side of the aisle they come from – conservatives generally want a tough law enforcement candidate, not some squishy ACLU lawyer.

    The rule is also poorly written because it prohibits judicial candidates from saying they have been endorsed by law enforcement – but it DOESN’T say that they can’t receive those endorsements! So what’s a candidate to do – take their spouse everywhere with them to tell everyone “By the way, my spouse has been endorsed by law enforcement.”

    I hope the rule is overturned, even if it has to be appealed all the way to the U.S. Supreme Court. It’s a bad, poorly drafted bill that infringes upon free speech. Judges are already under way too many restrictions on their free speech.

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