Wolfson v. Brammer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RANDOLPH WOLFSON, 
Plaintiff-Appellant,
v.
J. WILLIAM BRAMMER, JR.; JOHN C.
GEMMILL; ANGELA H. SIFUENTES;
ROBERT M. BRUTINEL, Judge;
SYLVIA PATINO-BRANFON; HARRIETT No. 09-15298
CHAVEZ; SHELIA S. POLK; LOUIS
FRANK DOMINGUEZ; SHERRY L.  D.C. No.
3:08-cv-08064-FJM
GEISLER; CATHERINE M. STEWART;
MARION WEINZWEIG; J. CONRAD OPINION
BARAN; DAISY R. FLORES; JEFF
MESSING; JOHN PRESSLEY TODD;
WILLIAM W. HORSLEY; LAURA
BELLAU; PAMELA M. KATZENBERG;
TIMOTHY GOODING; KAREN
OSBORNE; ROBERT B. VAN WYCK,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding

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

Filed August 13, 2010

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

11605
11610 WOLFSON v. BRAMMER
COUNSEL

James Bopp, Jr., Esq., Bopp, Coleson & Bostrom, Terra
Haute, Indiana, for plaintiff-appellant Randolph Wolfson.

Kimberly A. Demarchi, Esq., Lewis and Roca LLP, Phoenix,
Arizona, for defendant-appellee Robert Van Wyck, Chief Bar
Counsel of the State Bar of Arizona.

Charles A. Grube, Esq., Assistant Attorney General, Office of
the Arizona Attorney General, Phoenix, Arizona, for
defendants-appellees J. William Brammer, Jr., John C. Gem-
mill, Angela H. Sifuentes, Robert M. Brutinel, Sylvia Patino-
Branfon, Harriett Chavez, Shelia S. Polk, Louis Frank Domin-
guez, J. Conrad Baran, Daisy R. Flores, Jeff Messing, John
Pressley Todd, William W. Horsley, Laura Bellau, Pamela M.
Katzenberg, Timothy Gooding, and Karen Osborne.

OPINION

WALLACE, Senior Circuit Judge:

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 elec-
tion. 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 v. BRAMMER 11611
Wolfson now appeals. We have jurisdiction pursuant to 28
U.S.C. § 1291. We reverse and remand.

I.

Wolfson is a practicing attorney and member of the Ari-
zona Bar. He has twice unsuccessfully sought election to judi-
cial 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, Ari-
zona. 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 Com-
mittee), 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 activi-
ties and political speech in which Wolfson wished to engage
were prohibited by the Code. Following the district court’s
11612 WOLFSON v. BRAMMER
dismissal, Wolfson submitted a request to the Ethics Commit-
tee for a formal advisory opinion. In April 2008, the Ethics
Committee responded to Wolfson’s request by issuing Advi-
sory Opinion 08-01.

With the advisory opinion in hand, Wolfson filed the pres-
ent action in May 2008. Wolfson v. Brammer (Wolfson II),
No. CV-08-8064 (Judge Frederick J. Martone). The allega-
tions 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 solici-
tations 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 support-
ing 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 supple-
 WOLFSON v. BRAMMER 11613
mental 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.

II.

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 fed-
eral court jurisdiction to “actual, ongoing cases or controver-
11614 WOLFSON v. BRAMMER
sies.” 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 alter-
ations 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 out-
come.” 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 pro-
spective relief to go forward despite abatement of the underly-
ing 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 litiga-
tion 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
 WOLFSON v. BRAMMER 11615
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, how-
ever, 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 ques-
tion: “Will you be a candidate for judicial office in the next
election?” In his supplemental brief, Wolfson replied: “Plain-
tiff 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 elec-
tion in the near future.”

[4] But Wolfson was not asked about his future intent.
Wolfson’s response was appropriate for the question posed.
11616 WOLFSON v. BRAMMER
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
district court’s order, and we do not fault Wolfson for failing
to volunteer information that the court had not requested.

[5] There is more than sufficient evidence to support a
finding that Wolfson intends to seek judicial office in the
future. Wolfson’s complaint expresses an intention to seek
judicial office in the future, and a desire to engage in prohib-
ited conduct “both in the 2008 judicial election and in future
judicial elections.” Furthermore, eliminating any doubts
regarding the record, Wolfson has represented in the present
appeal that he intends to seek judicial office in a future elec-
tion. The Court has declined to dismiss election cases as moot
where the candidate-plaintiff has subsequently announced an
intent to seek office in a future election. See Davis v. Fed.
Election Comm’n, 128 S. Ct. 2759, 2769-70 (2008) (challenge
to self-financing provisions of federal campaign finance law
not moot where the plaintiff-candidate subsequently
announced his intention to self-finance another campaign for
office); Chandler v. Miller, 520 U.S. 305, 313 n.2 (1997) (cit-
ing 28 U.S.C. § 1653 for the proposition that defective juris-
dictional allegations are curable at trial or on appeal, and
holding that a challenge to certain provisions of Georgia elec-
tion law was not moot, even though petitioner-candidate did
not announce in the trial court his plans to run again, where
he later “represented, as an officer of this Court, that he plans
to run again”); see also Fed. Election Comm’n v. Wis. Right
To Life, Inc., 551 U.S. 449, 462-64 (2007) (challenge to
advertising restrictions in federal campaign finance law not
mooted by conclusion of election where plaintiff-organization
expressed its intention to run similar ads in future elections);
 WOLFSON v. BRAMMER 11617
Int’l Org. of Masters, Mates & Pilots v. Brown, 498 U.S. 466,
473 (1991) (holding an election case not moot because
“[r]espondent has run for office before and may well do so
again”). Wolfson has declared his intention to seek elected
judicial office in the future and declared his desire, in connec-
tion with any future campaign, to engage in the same activi-
ties that are the subject of the complaint in this action. These
expressions of intent are sufficient to establish a “reasonable
expectation” that this action is “capable of repetition.”

As an alternative, Wolfson asserts that his intentions
regarding future candidacy are irrelevant to our application of
the “capable of repetition, yet evading review” exception to
mootness. To support this argument, Wolfson relies on our
decision in Schaefer v. Townsend, 215 F.3d 1031 (9th Cir.
2000). There, plaintiff Schaefer was a resident of Nevada who
sought to become a candidate in a special election to fill a
vacant California seat in the House of Representatives. Schae-
fer challenged a residency requirement in California election
law that prohibited his candidacy. Schaefer refused to disclose
whether he intended to run for office in California in the
future, arguing that his future political aspirations were irrele-
vant to evaluating the mootness exception. Id. at 1033. We
decided that the capable-of-repetition exception should not be
construed narrowly, observing that several cases had “pro-
ceeded to the merits without examining the future political
intentions of the challengers.” Id. at 1033, citing Dunn v.
Blumstein, 405 U.S. 330, 333, n.2 (1972); Joyner, 706 F.2d at
1527. We did not hold “that only when a candidate plans to
seek reelection is the case not moot,” and concluded that
Schaefer’s action could proceed. Id. (second emphasis added),
quoting Thorsted v. Munro, 75 F.3d 454, 456 (9th Cir. 1996).

Although the parties have vigorously disputed the viability,
meaning, and import of Schaefer, we need not weigh in on the
matter. The plaintiff in Schaefer refused to declare his future
electoral intentions. Wolfson, in contrast, has affirmatively
stated that he intends to become a candidate again. We have
11618 WOLFSON v. BRAMMER
already concluded that Wolfson has met the ripeness require-
ment by indicating his intent to run for judicial office in the
future. See, e.g., Davis, 128 S. Ct. at 2769-70; Chandler, 520
U.S. at 313 n.2. We need not go further at this time. We there-
fore leave for another case the significance of Schaefer in this
Circuit.

III.

Additional objections have been raised as to our jurisdic-
tion. Defendants ask us to dismiss this case for the alternative
reasons that Wolfson lacks standing and that Wolfson’s
claims are not ripe. These contentions are properly considered
in this appeal. See Attorneys Trust v. Videotape Computer
Prods., Inc., 93 F.3d 593, 595 (9th Cir. 1996) (jurisdictional
challenges may be raised at any time).

A.

[6] “[S]tanding is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also
Hein v. Freedom From Religion Found., Inc., 551 U.S. 587,
597-98 (2007). At an “irreducible constitutional minimum,”
standing requires the party asserting the existence of federal
court jurisdiction to establish three elements: (1) an injury in
fact that is (a) concrete and particularized and (b) actual or
imminent; (2) causation; and (3) a likelihood that a favorable
decision will redress the injury. Lujan, 504 U.S. at 560-61. In
addition to these requirements, the doctrine of prudential
standing requires us to consider, among other things, whether
the alleged injury is more than a “ ‘mere generalized griev-
ance,’ whether the plaintiff is asserting her own rights or the
rights of third parties, and whether the claim ‘falls within the
zone of interests to be protected or regulated by the constitu-
tional guarantee in question.’ ” Alaska Right to Life PAC v.
Feldman, 504 F.3d 840, 848-49 (9th Cir. 2007), quoting John-
son v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983).
 WOLFSON v. BRAMMER 11619
Defendants argue that the third element of constitutional
standing, redressability, is absent here. They argue that Wolf-
son has failed to state a claim for relief from them, because
they have no legal authority to change the Code. Instead, that
authority is reserved to the Arizona Supreme Court. Defen-
dants contend that Wolfson, if successful in this action, can
obtain no effective redress because he cannot obtain a revi-
sion of the Code.

[7] Wolfson need not obtain a Code revision, however, in
order to obtain a measure of relief. A plaintiff meets the
redressability requirement if it is likely, although not certain,
that his injury can be redressed by a favorable decision. See
Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir.
2004); Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994)
(plaintiff “must show only that a favorable decision is likely
to redress his injury, not that a favorable decision will inevita-
bly redress his injury”). If a plaintiff is “an object of the [chal-
lenged action] . . . there is ordinarily little question that the
action or inaction has caused him injury, and that a judgment
preventing or requiring the action will redress it.” Lujan, 504
U.S. at 561-62.

[8] These defendants have the power to discipline Wolfson
and, if they are enjoined from enforcing the challenged provi-
sions, Wolfson will have obtained redress in the form of free-
dom to engage in certain activities without fear of
punishment. The Arizona Commission on Judicial Conduct
has disciplinary jurisdiction over the actions of judges, includ-
ing their actions as candidates. See generally Rules of the
Commission on Judicial Conduct (explaining disciplinary
authority of the Commission on Judicial Conduct); see also
Ariz. Code Jud. Conduct, canon 5C (a successful candidate is
subject to judicial discipline for campaign conduct); id.
(2009), rule 4.1 cmt. 2 (same). The Arizona Supreme Court
Disciplinary Commission has authority to impose various
sanctions on members of the Arizona Bar, including censure,
reprimand, probation, and restitution. Ariz. Sup. Ct. Rule
11620 WOLFSON v. BRAMMER
49(c)(2), 60; see also Republican Party of Minn. v. White, 536
U.S. 765, 770 n.3 (2002) (naming officers of the Minnesota
Board on Judicial Standards and the Lawyers Board as defen-
dants in an action challenging the constitutionality of a canon
restricting behavior of candidates for judicial office). The Ari-
zona Chief Bar Counsel is charged with overseeing and
directing the prosecution of discipline cases involving mem-
bers of the bar. Ariz. Sup. Ct. Rule 51. Enjoining the defen-
dants from enforcing the challenged canons will redress
Wolfson’s injury. Without a possibility of the challenged can-
ons being enforced, those canons will no longer have a chill-
ing effect on speech. Wolfson will thus be able to engage in
the political speech and campaign activities he desires. It is
true that Wolfson cannot obtain revision of the Code from
these defendants, but Wolfson may nevertheless obtain a form
of effective redress in this action.

B.

[9] Defendants also assert that Wolfson’s claims are not
ripe. “The ripeness doctrine is drawn both from Article III
limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n
v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quota-
tion marks omitted). The ripeness doctrine “is peculiarly a
question of timing,” Reg’l Rail Reorg. Act Cases, 419 U.S.
102, 140 (1974), designed “to separate matters that are prema-
ture for review because the injury is speculative and may
never occur from those cases that are appropriate for federal
court action,” Portman v. County of Santa Clara, 995 F.2d
898, 902 (9th Cir. 1993) (internal quotation marks omitted).
“[T]hrough avoidance of premature adjudication,” the ripe-
ness doctrine prevents courts from becoming entangled in
“abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S.
136, 148 (1967), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977).

Wolfson is not presently bound to obey the Code and will
only be required to do so if he again becomes a candidate for
 WOLFSON v. BRAMMER 11621
judicial office. Wolfson is neither now, nor has he ever been,
subject to any enforcement action related to these canons.
Instead, Wolfson alleges that he wants to engage in three
kinds of expressive activity that he believes the Code prohib-
its: (1) personally soliciting contributions, which is prohibited
by the solicitation restrictions contained in canons 5A(1)(c)
and 5B(2) (revised rules 4.1(A)(4) & 4.1(A)(6)); (2) endors-
ing other candidates for office and supporting their cam-
paigns, actions which are prohibited by the endorsement
clause and the campaigning prohibition contained in canons
5A(1)(b) & (d) (revised rules 4.1(A)(2) & (3), 4.1(A)(5)); and
(3) answering questions from voters and making public
speeches regarding disputed legal and political issues, which
Wolfson believes is prohibited by the pledges and promises
clause, canon 5B(1)(d)(i) (revised rule 4.1(A)(9)). Wolfson
alleges that he has suffered the injury of self-censorship, and
that he will be required to self-censor in any future campaign
for elected judicial office. As the pledges and promises clause
raises distinct issues from the solicitation, endorsement, and
campaigning clauses, we will address the pledges and prom-
ises clause separately.

1.

We first turn to whether Wolfson’s claims regarding the
solicitation, endorsement, and campaigning prohibitions (can-
ons 5A(1)(b), 5A(1)(c), 5A(1)(d), and 5B(2)) are ripe.

a.

Ripeness has both constitutional and prudential compo-
nents. Portman, 995 F.2d at 902. The constitutional compo-
nent of ripeness overlaps with the “injury in fact” analysis for
Article III standing. Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1138-39 (9th Cir. 2000) (en banc);
see also United States Parole Comm’n v. Geraghty, 445 U.S.
388, 397 (1980). Whether framed as an issue of standing or
ripeness, the inquiry is largely the same: whether the issues
11622 WOLFSON v. BRAMMER
presented are “definite and concrete, not hypothetical or
abstract.” Thomas, 220 F.3d at 1139 (internal quotation marks
omitted).

[10] Wolfson is not currently subject to an enforcement
action and therefore raises a pre-enforcement challenge to the
canons. Neither the “mere existence of a proscriptive statute”
nor a “generalized threat of prosecution” satisfies the “case or
controversy” requirement. Id., citing San Diego County, 98
F.3d at 1126-27; see also Stoianoff v. Montana, 695 F.2d
1214, 1223 (9th Cir. 1983). It is true that “[o]ne does not have
to await the consummation of threatened injury to obtain pre-
ventive relief.” Reg’l Rail Reorg. Act Cases, 419 U.S. at 143
(quotation marks and citation omitted); see also Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)
(a plaintiff need not expose himself to prosecution in order to
challenge the constitutionality of a statute “that he claims
deters the exercise of his constitutional rights”). However, for
a claim to be ripe, the plaintiff must be subject to a “genuine
threat of imminent prosecution.” San Diego County, 98 F.3d
at 1126, quoting Wash. Mercantile Ass’n v. Williams, 733
F.2d 687, 688 (9th Cir. 1984). When evaluating whether a
claimed threat of prosecution is genuine, we consider: (1)
whether the plaintiff has articulated a concrete plan to violate
the law in question; (2) whether the prosecuting authorities
have communicated a specific warning or threat to initiate
proceedings; and (3) the history of past prosecution or
enforcement under the challenged statute. Id. at 1126-28.

Although the mere existence of a statute is insufficient to
create a ripe controversy, we have applied the requirements of
ripeness and standing less stringently in the context of First
Amendment claims. Cal. Pro-Life Council, Inc. v. Getman,
328 F.3d 1088, 1094 (9th Cir. 2003) (“in the First
Amendment-protected speech context, the Supreme Court has
dispensed with rigid standing requirements”). In particular,
we apply the principle that one need not await “consumma-
tion of threatened injury” before challenging a statute restrict-
 WOLFSON v. BRAMMER 11623
ing speech, to guard the risk that protected conduct will be
deterred. Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002,
1006 (9th Cir. 2003) (internal quotation marks omitted); see
also LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir.
2000). To avoid the chilling effect of restrictions on speech,
the Court has endorsed “a ‘hold your tongue and challenge
now’ approach rather than requiring litigants to speak first
and take their chances with the consequences.” Bayless, 320
F.3d at 1006 (citations omitted); see also Bland v. Fessler, 88
F.3d 729, 736-37 (9th Cir. 1996); accord Navegar, Inc. v.
United States, 103 F.3d 994, 999 (D.C. Cir. 1997).

[11] Looking to the first consideration, whether Wolfson
has a concrete plan to violate the law, we conclude that Wolf-
son has established an intent to violate the law that is more
than hypothetical. Cf. Thomas, 220 F.3d at 1139. Wolfson has
expressed an intention to run for office in the future, and a
desire to engage in two kinds of campaign-related conduct
that is likely to be prohibited by the Code.

First, Wolfson has expressed a desire to solicit campaign
contributions personally, through live appearances, phone
calls, and written requests. The solicitation restrictions, can-
ons 5A(1)(c) and 5B(2) (revised rules 4.1(A)(4) & 4.1(A)(6)),
state that a judicial candidate shall not “solicit funds for or
pay an assessment to a political organization . . .” and that a
candidate “should refrain from personally soliciting campaign
contributions.” Advisory Opinion 08-01 confirmed that Wolf-
son, while a candidate for judicial office subject to the Code,
cannot personally solicit or receive campaign contributions.

Second, Wolfson has expressed a desire to endorse other
candidates. The endorsement clause, canon 5A(1)(b) (revised
rule 4.1(A)(2) & (3)), states that a judge or judicial candidate
shall not “make speeches for a political organization or candi-
date or publicly endorse a candidate for public office.” The
campaigning prohibition, canon 5A(1)(d) (revised rule
4.1(A)(5)), states that a judicial candidate shall not “actively
11624 WOLFSON v. BRAMMER
take part in any political campaign other than his or her own
election, reelection or retention in office.” Several Advisory
Opinions have confirmed that Wolfson cannot, while a candi-
date for judicial office, endorse another candidate or partici-
pate in another candidate’s campaign. Advisory Opinion 08-
01 stated that Wolfson could not endorse other candidates for
office while himself a candidate. In Advisory Opinion 96-08,
the Ethics Committee said that judges “may not participate in
campaigns for or against political candidates, even those who
take positions affecting the administration of justice,” explain-
ing that “Canon 5A(1) of the Code of Judicial Conduct pro-
hibits judges from publicly endorsing a candidate, making
speeches for a political organization or candidate, . . . or
actively taking part in any political campaign other than their
own.” In Advisory Opinion 96-09, the Ethics Committee con-
sidered whether a judge could appear in an advertisement
endorsing a ballot proposition that he had been involved in
drafting. The Ethics Committee concluded that a judge could
not endorse a proposition, even one that he or she had assisted
in drafting, because “the code does not permit a judge to act
as a spokesperson and advocate for others.”

[12] Turning to the second consideration guiding the ripe-
ness inquiry, the existence of an enforcement action or threat
of the same, we start with the undisputed fact that Wolfson
has never been threatened with enforcement proceedings.
Wolfson asserts that his claims are nevertheless ripe because
he has self-censored to comply with the Code. Self-censorship
is a constitutionally recognized injury. See Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 393 (1988) (self-censorship
is “a harm that can be realized even without an actual prose-
cution”). In the context of First Amendment speech, a threat
of enforcement may be inherent in the challenged statute, suf-
ficient to meet the constitutional component of the ripeness
inquiry. Bayless, 320 F.3d at 1006-07; see also Getman, 328
F.3d at 1095; Majors v. Abell, 317 F.3d 719, 721 (7th Cir.
2003) (“[T]he threat [of prosecution] is latent in the existence
of the statute”). Especially where protected speech may be at
 WOLFSON v. BRAMMER 11625
stake, a plaintiff need not risk prosecution in order to chal-
lenge a statute. See, e.g., Bayless, 320 F.3d at 1006; Bland, 88
F.3d at 736-37. The Supreme Court has repeatedly pointed
out the necessity of allowing pre-enforcement challenges to
avoid the chilling of speech. See, e.g., Am. Booksellers Ass’n,
484 U.S. at 393; Dombrowski v. Pfister, 380 U.S. 479, 486
(1965) (recognizing the “sensitive nature of constitutionally
protected expression,” in permitting a pre-enforcement action
involving the First Amendment).

[13] The third inquiry, past prosecution or enforcement,
has little weight in our analysis. The Code is relatively new
and the record contains little information as to enforcement or
interpretation, other than the advice of the Ethics Committee
to Wolfson. Nevertheless, this record is sufficient under the
circumstances of this case. Wolfson’s claims meet the consti-
tutional component of ripeness.

b.

To evaluate the prudential component of ripeness, we
weigh two considerations: “the fitness of the issues for judi-
cial decision and the hardship to the parties of withholding
court consideration.” Abbott Labs., 387 U.S. at 149. We have
held that “ ‘[a] claim is fit for decision if the issues raised are
primarily legal, do not require further factual development,
and the challenged action is final.’ ” US West Commc’ns v.
MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999),
quoting Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624,
627 (9th Cir. 1989). “ ‘To meet the hardship requirement, a
litigant must show that withholding review would result in
direct and immediate hardship and would entail more than
possible financial loss.’ ” Stormans, Inc. v. Selecky, 586 F.3d
1109, 1126 (9th Cir. 2009), quoting US West Commc’ns, 193
F.3d at 1118. In our evaluation of a claim of hardship, “[w]e
consider whether the regulation requires an immediate and
significant change in plaintiffs’ conduct of their affairs with
11626 WOLFSON v. BRAMMER
serious penalties attached to noncompliance.” Id. (internal
quotation marks omitted).

[14] We hold that Wolfson’s claims regarding the solicita-
tion, campaigning, and endorsement clauses satisfy the con-
cerns of prudential ripeness. Wolfson’s claim is fit for
decision, because it is primarily legal and does not require
substantial further factual development. See US West
Commc’ns, 193 F.3d at 1118; San Diego County, 98 F.3d at
1132. We also conclude that Wolfson is subject to a sufficient
hardship. Wolfson has alleged a hardship through the
constitutionally-recognized injury of self-censorship. Because
we relax the requirements of standing and ripeness to avoid
the chilling of protected speech, Getman, 328 F.3d at 1094,
Wolfson need not await prosecution to seek preventative
relief. See Bayless, 320 F.3d at 1006; LSO, 205 F.3d at 1155.

[15] Defendants assert that Wolfson’s claims should be
adjudicated in the future, if and when he is again a candidate
for judicial office and subject to enforcement proceedings.
Defendants ask too much. Wolfson alleges that he has already
suffered the constitutionally-recognized injury of self-
censorship in two separate election campaigns and that he will
again be required to censor his speech in a future campaign.
Defendants’ approach would effectively relegate Wolfson to
self-censorship in a third election: as Wolfson’s two electoral
bids and two actions demonstrate, it is unlikely that this litiga-
tion will be completed in the short time frame of an election.
Even further, defendants would have any action by Wolfson
deferred until an enforcement proceeding is brought. But an
enforcement proceeding is not likely, given Wolfson’s state-
ment that he will self-censor to comply with the Code. Wolf-
son’s compliance with his duties under the Code should not
bar this action, because the principle that “one should not
have to risk prosecution to challenge a statute is especially
true in First Amendment cases.” Bland, 88 F.3d at 736-37; see
also Bayless, 320 F.3d at 1006; LSO, 205 F.3d at 1155.
Requiring Wolfson to violate the Code as a precondition to
 WOLFSON v. BRAMMER 11627
bringing suit would, furthermore, “turn respect for the law on
its head.” Bayless, 320 F.3d at 1007; see also Bland, 88 F.3d
at 737 (concluding that a plaintiff ’s decision to obey the law
was “reasonable and demonstrates a commendable respect for
the rule of law”). Wolfson has stated an injury of self-
censorship and therefore need not await consummation of the
threatened injury to bring his claims. See, e.g., Canatella v.
California, 304 F.3d 843, 855 (9th Cir. 2002) (challenge to
state bar rules ripe where alleged harm of potential disciplin-
ary measures damage to the expressive rights of attorneys
who refrained from protected activity); ACLU v. Fla. Bar, 999
F.2d 1486, 1492-93 (11th Cir. 1993) (challenge to canons of
judicial conduct ripe where plaintiff would have to refrain
from protected speech to avoid disciplinary action).1

Defendants also argue that our decision in Alaska Right to
Life PAC v. Feldman requires us to decline jurisdiction. 504
F.3d 840. The plaintiff in Feldman was a political action com-
mittee, Alaska Right to Life, which sought to elicit, through
a questionnaire, sitting judges’ viewpoints on several issues.
Id. at 843. Few judges responded to the questionnaire in any
way; of the few judges who did, all declined to provide sub-
stantive answers, citing the Alaska Code of Judicial Conduct.
Id. Alaska Right to Life brought an action challenging the
1
Judge Graber would have us dismiss the claims against the Arizona
Commission on Judicial Conduct as unripe because the Commission on
Judicial Conduct may not exercise authority over Wolfson unless he is
actually elected. If elected, however, Wolfson would be required to
answer for statements and conduct made while campaigning. Thus, he
would be forced to self-censor in a future election even if the Commission
on Judicial Conduct were the only body with authority to sanction cam-
paign speech that violates ethical rules. Without preventative relief against
the Commission on Judicial Conduct, Wolfson would be forced to self-
censor while participating in a future election because of the possibility
that he might win. Preventative relief against the Disciplinary Commission
and Chief Bar Counsel is insufficient to redress Wolfson’s injury of self-
censorship. Whether or not he wins, Wolfson will be required to self-
censor in a future election unless preventative relief is also extended to the
Commission on Judicial Conduct.
11628 WOLFSON v. BRAMMER
constitutionality of the “pledges and promises” and “com-
mits” canons of Alaska’s Code of Judicial Conduct. Id. We
concluded that the district court should have declined to exer-
cise jurisdiction on prudential ripeness grounds. Id. at 849.
There was no hardship to the plaintiff because the challenged
canons did not apply to it, and by extension, no concrete fac-
tual situation framing the controversy. Id. at 851. Also weigh-
ing against the exercise of jurisdiction, the Alaska Supreme
Court had not yet had an opportunity to construe the canons
at issue. Id. at 850-52. Because Alaska’s Code of Judicial
Conduct indicated a preference for interpretation “in a manner
that does not infringe First Amendment rights,” we had no
reason to expect that the Alaska Supreme Court would adopt
a recommendation “that ran afoul of the First Amendment.”
Id. at 850; see also Renne v. Geary, 501 U.S. 312, 323 (1991)
(consideration of constitutional questions should be postponed
until a concrete controversy arises, allowing state courts the
opportunity to construe a challenged law).

[16] Feldman does not compel dismissal of Wolfson’s
action. Wolfson is dissimilar from the Feldman plaintiff in
several material respects. In Feldman, the plaintiff was not
subject to the challenged code, was not threatened with any
enforcement action, and had not suffered the injury of self-
censorship. Id. In contrast, Wolfson’s speech was constrained
by the Code and he self-censored in order to comply with the
Code. Unlike the Feldman plaintiff, Wolfson’s action seeks
principally to redress restrictions on his own speech, as a for-
mer candidate for judicial office and as a likely future candi-
date. See, e.g., Porter, 319 F.3d at 490-91. In further contrast
to the Feldman plaintiff, Wolfson has already sought an advi-
sory opinion regarding the challenged canons. Wolfson’s
claims relating to the solicitation, campaigning and endorse-
ment canons of the Code are ripe.

2.

We turn to Wolfson’s claims regarding the pledges and
promises clause, canon 5B(1)(d)(i) (revised rule 4.1(A)(9)).
 WOLFSON v. BRAMMER 11629
Wolfson alleges that, during his campaigns for judicial office,
he wanted to give talks on certain disputed legal and political
issues, and answer questions from voters regarding the same.
For example, Wolfson alleges that he wanted to give talks
regarding same-sex marriage and family values during the
2006 campaign. An initiative on Arizona’s November 2006
ballot, Proposition 107, pertained to same-sex marriage.
Believing that he was prohibited from discussing disputed
legal and political issues while a candidate for judicial office,
Wolfson censored his presentation to omit any discussion of
Proposition 107.

a.

Although we apply the requirements of ripeness less strin-
gently in the First Amendment context, a plaintiff must never-
theless establish that he or she possesses an “actual and well-
founded fear that the law will be enforced against him or her.”
Getman, 328 F.3d at 1095 (internal quotation marks omitted).
We have held that a plaintiff must have a plausible and rea-
sonable fear of prosecution. See id.; LSO, 205 F.3d at 1154-
55. Bare allegations that a plaintiff ’s speech has been chilled
by the challenged statute are insufficient to establish a reason-
able fear of prosecution. Getman, 328 F.3d at 1095 (“The
self-censorship door to standing does not open for every
plaintiff”). Instead, a well-founded fear of prosecution “will
only inure if the plaintiff ’s intended speech arguably falls
within the statute’s reach.” Id., citing Am. Booksellers Ass’n,
484 U.S. at 392; see also Majors, 317 F.3d at 721 (a statute
that “clearly fails to cover [plaintiff ’s] conduct” does not give
rise to a latent threat of enforcement or reasonable fear of
prosecution).

In evaluating the ripeness of a claim, we typically consider
whether the plaintiff intends to violate the law, whether
enforcement proceedings have been threatened, and whether
the enforcement history of the challenged statute corroborates
a genuine threat. See generally San Diego County, 98 F.3d at
11630 WOLFSON v. BRAMMER
1126-29. Wolfson’s claim regarding the pledges and promises
clause displays none of these features. Wolfson admits that he
has no “concrete plan” to violate the pledges and promises
clause. See id. at 1127. In fact, Wolfson’s complaint declares
that he “does not wish to pledge or promise certain results in
particular cases or classes of cases.” Wolfson has never been
subject to or threatened with an enforcement action, and does
not submit any history of enforcement under the pledges and
promises clause that would support his claimed fear of prose-
cution. See id. at 1127-29. Instead, Wolfson fears that the
pledges and promises clause may be construed to prohibit
judicial candidates from announcing their views on disputed
legal and political issues.

[17] Wolfson can have no well-founded fear that he will be
prosecuted for violating the pledges and promises clause
because that clause does not unambiguously reach his pro-
posed conduct. Arizona’s pledges and promises clause pro-
vides that a judge or judicial candidate shall not “with respect
to cases, controversies, or issues that are likely to come before
the court, make pledges, promises or commitments that are
inconsistent with the impartial performance of the adjudica-
tive duties of the office.” The pledges and promises clause
prohibits committing oneself or making promises. The pledges
and promises clause does not unambiguously prohibit the
expression of one’s views on issues that may come before the
court. The Ethics Committee has explained that “a judicial
candidate may publicly discuss his or her personal opinions
on any subject under . . . [the pledges and promises clause]
because a candidate may express views on any disputed
issue.” Advisory Opinion 08-01.

[18] Taking all of the above together, we conclude that
Wolfson does not face a “genuine threat of imminent prosecu-
tion” with respect to the pledges and promises clause. Cf. San
Diego County, 98 F.3d at 1126. Wolfson has no intent to vio-
late the pledges and promises clause, and fails to demonstrate
that the clause reaches any of his intended speech. See Get-
 WOLFSON v. BRAMMER 11631
man, 328 F.3d at 1095. In effect, Wolfson’s fear is that the
pledges and promises clause might be construed in a particu-
lar manner. This falls short of “a credible threat” that the
pledges and promises clause will be enforced against him.
Bayless, 320 F.3d at 1006, quoting LSO, Ltd., 205 F.3d at
1154-55. Wolfson’s fear concerns a possibility, and is insuffi-
cient to satisfy the constitutional component of ripeness. See
Portman, 995 F.2d at 902 (speculative injuries are not ripe for
review); Darring v. Kincheloe, 783 F.2d 874, 877 (9th Cir.
1986) (“imaginary or speculative” fears of prosecution are not
ripe), quoting Younger v. Harris, 401 U.S. 37, 42 (1971). We
hold that Wolfson’s claims regarding the pledges and prom-
ises clause do not satisfy the constitutional component of ripe-
ness, and we need not decide whether they meet the
prudential requirements of ripeness.

Taking a different tack, Wolfson asserts that the advice he
received from the Ethics Committee failed to dispel his con-
cerns regarding the scope of the pledges and promises clause.
Wolfson twice sought an advisory opinion from the Ethics
Committee. In December 2007, following the district court’s
dismissal of Wolfson I, Wolfson sought guidance on several
issues, including whether he could state his opinions on “dis-
puted legal and political issues,” endorse other candidates,
and personally solicit campaign contributions. In September
2006, during his campaign for judicial office, Wolfson
inquired whether the Code’s restrictions on political activity
by judicial candidates would prohibit him from speaking pub-
licly about a pending ballot initiative. In response to these
requests, Wolfson received two Advisory Opinions, Nos. 08-
01 and 06-05.

Wolfson asserts that the advisory opinions have not only
failed to dispel the chilling effect of the pledges and promises
clause, but actually heightened it. Wolfson does not, however,
state why the advisory opinions increased the chilling effect
of the pledges and promises clause. Both Advisory Opinion
08-01 and Advisory Opinion 06-05 state that “a candidate
11632 WOLFSON v. BRAMMER
may express views on any disputed issue,” subject to and con-
sistent with the pledges and promises clause. See also White,
536 U.S. 765, 781-82. The advisory opinions merely incorpo-
rate the pledges and promises clause. The opinions may not
have provided Wolfson with the level of clarity he desired,
but there is no basis on which to conclude they chilled his
speech. Wolfson’s conclusory assertion of chilling is therefore
insufficient. See Getman 328 F.3d at 1905 (a plaintiff may not
“challenge the constitutionality of a statute on First Amend-
ment grounds by nakedly asserting that his or her speech was
chilled by the statute”).

Insofar as Wolfson alleges a fear that the pledges and
promises clause continues to restrict the speech of judges,
such a claim is also not ripe. Wolfson is not a judge and may
never become one. The application of the Code to Wolfson as
a judge is a long step removed from Wolfson’s claims as a
candidate. A claim is not ripe for judicial resolution “if it rests
upon contingent future events that may not occur as antici-
pated, or indeed may not occur at all.” Texas v. United States,
523 U.S. 296, 300 (1998) (internal quotation marks omitted).
Wolfson cannot ground a claim against the pledges and prom-
ises clause on its hypothetical application to him as a judge.
Wolfson can become a candidate of his own accord; Wolfson
cannot similarly control his appointment to judicial office or
the outcome of an election. Insofar as Wolfson purports to
redress injuries to judges’ speech, such claims are also not
ripe. Wolfson cannot assert the constitutional rights of judges
when he is not, and may never be, a member of that group.
See, e.g., Feldman, 504 F.3d at 851 (political action commit-
tee plaintiff did not face hardship where “the organization
would not itself have risked civil sanction or criminal penal-
ty”).

IV.

Defendants have also asserted that this action is barred by
collateral estoppel. To support this argument, defendants
 WOLFSON v. BRAMMER 11633
point to the district court’s order dismissing Wolfson I on the
basis of prudential ripeness. Defendants assert that Wolfson
has not satisfied the preconditions to a subsequent action set
forth by the district court’s Wolfson I order and is therefore
barred from bringing this action.

[19] “[T]he doctrine of collateral estoppel can apply to pre-
clude relitigation of both issues of law and issues of fact if
those issues were conclusively determined in a prior action.”
United States v. Stauffer Chem. Co., 464 U.S. 165, 170-71
(1984). Under this doctrine, a party is precluded from reliti-
gating an issue if four requirements are met: (1) there was a
full and fair opportunity to litigate the issue in the previous
action; (2) the issue was actually litigated; (3) there was final
judgment on the merits; and (4) the person against whom col-
lateral estoppel is asserted was a party to or in privity with a
party in the previous action. Kendall v. Visa U.S.A., Inc., 518
F.3d 1042, 1050 (9th Cir. 2008). We review the availability
of collateral estoppel de novo. Pardo v. Olson & Sons, Inc.,
40 F.3d 1063, 1066 (9th Cir. 1994).

[20] Here, the district court’s dismissal was not an adjudi-
cation of the merits. Rather, the district court set forth a cur-
able defect in jurisdiction: ripeness. As a curable defect, a
second action on the same claim is permissible after correc-
tion of the deficiency. See 18A Wright & Miller, Federal
Practice & Procedure § 4436 (2000). The parties disagree,
however, as to whether the deficiency has been corrected.

In Wolfson I, the district court concluded that Wolfson had
satisfied the constitutional component of ripeness. Turning to
prudential ripeness considerations, however, the district court
exercised its discretion to decline jurisdiction, concluding that
Wolfson faced “insufficient hardship to warrant the exercise
of jurisdiction given the lack of any real or imminent threat
of enforcement.” The district court observed that Wolfson had
sought, and timely received, an advisory ethics opinion from
the Ethics Committee in the past. Wolfson could seek an eth-
11634 WOLFSON v. BRAMMER
ics advisory opinion again to obtain clarification regarding the
scope of the Code, which might allay his concerns and avoid
litigation.

Defendants draw their collateral estoppel argument from
the following line in the district court’s order: “since
‘[p]rudential considerations of ripeness are discretionary’
[citation], the Court will exercise its discretion to decline
jurisdiction over the dispute until Plaintiff actually faces
either an enforcement proceeding or the imminent threat of
one.” Defendants assert that this means that Wolfson is collat-
erally estopped such that he “is not allowed to come back to
federal court to challenge the Code unless and until he ‘actu-
ally faces either an enforcement proceeding or the threat of
one.’ ” The “curable defect” in jurisdiction, in defendants’
view, relates to the existence of enforcement activity, and not
a request for an advisory opinion.

[21] We hold that the district court’s dismissal of Wolfson
I was curable on Wolfson’s submission of a request for an
advisory opinion. The central consideration of the district
court’s order was that Wolfson could seek an advisory opin-
ion from the Ethics Committee. With this alternative avenue
of relief available, and little to no immediate hardship to Wol-
fson, the prudential balance weighed against the exercise of
jurisdiction. Contrary to defendants’ argument, the district
court’s dismissal of Wolfson I was not premised solely on the
lack of “an enforcement proceeding or the threat of one.”

[22] Even if the district court’s order of dismissal was
unclear whether Wolfson must request an advisory opinion or
whether Wolfson must be subject to an enforcement action,
we conclude that the present action is not barred by collateral
estoppel. Where a decision “ ‘could have been rationally
grounded upon an issue other than that which the defendant
seeks to foreclose from consideration, collateral estoppel does
not preclude relitigation of the asserted issue.’ ” Eureka Fed.
Sav. & Loan Ass’n v. Am. Cas. Co. of Reading, Pa., 873 F.2d
 WOLFSON v. BRAMMER 11635
229, 233 (9th Cir. 1989), quoting Davis & Cox v. Summa
Corp., 751 F.2d 1507, 1518-19 (9th Cir. 1985); see also Steen
v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 912 (9th
Cir. 1997) (“Collateral estoppel is inappropriate if there is any
doubt as to whether an issue was actually litigated in a prior
proceeding”) (internal quotation marks omitted). Defendants’
assertion of collateral estoppel is based on an isolated line of
the district court’s order. Because Wolfson’s reading of the
order is, at the very minimum, fair, collateral estoppel does
not bar this action. See, e.g., Segal v. Am. Tel. & Tel. Co., 606
F.2d 842, 845 n.2 (9th Cir. 1979).

[23] Subsequent to the dismissal of Wolfson I, and consis-
tent with the district court’s instruction, Wolfson sought and
obtained a formal advisory opinion from the Ethics Commit-
tee. Wolfson has thereby cured the defect in jurisdiction iden-
tified by the district court in its discretionary declination of
jurisdiction over Wolfson I.

V.

[24] The remaining issues will not take long. Certain
defendants contend that this action is barred by Eleventh
Amendment immunity, which “erects a general bar against
federal lawsuits brought against a state.” Porter, 319 F.3d at
491, citing Papasan v. Allain, 478 U.S. 265, 276 (1986). The
Eleventh Amendment does not bar suits against a state official
for prospective relief. Id., citing Ex parte Young, 209 U.S. 123
(1908). The Eleventh Amendment poses no bar to Wolfson’s
claims here.

[25] Certain defendants also argue that the federal courts
should abstain from deciding this case under the doctrine
explained in Railroad Commission of Texas v. Pullman Co.,
312 U.S. 496 (1941), sometimes known as “Pullman absten-
tion.” Pullman abstention “is an extraordinary and narrow
exception to the duty of a [d]istrict [c]ourt to adjudicate a con-
troversy.” Canton v. Spokane Sch. Dist. No. 81, 498 F.2d 840,
11636 WOLFSON v. BRAMMER
845 (9th Cir. 1974) (internal quotation marks omitted), over-
ruled on other grounds as recognized by Heath v. Cleary, 708
F.2d 1376, 1378-79 n.2 (1985). Pullman abstention is appro-
priate only where (1) there are sensitive issues of social policy
“upon which the federal courts ought not to enter unless no
alternative to its adjudication is open,” (2) constitutional adju-
dication could be avoided by a state ruling, and (3) resolution
of the state law issue is uncertain. Id. (internal quotation
marks omitted). In First Amendment cases, the first Pullman
element “will almost never be present because the guarantee
of free expression is always an area of particular federal con-
cern.” Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir.
1989). “ ‘Indeed, constitutional challenges based on the [F]irst
[A]mendment right of free expression are the kind of cases
that the federal courts are particularly well-suited to hear.
That is why abstention is generally inappropriate when [F]irst
[A]mendment rights are at stake.’ ” Porter, 319 F.3d at 492-
93, quoting J-R Distribs., Inc. v. Eikenberry, 725 F.2d 482,
487 (9th Cir. 1984), overruled on other grounds by Brockett
v. Spokane Arcades, Inc., 472 U.S. 491 (1985). We hold that
Pullman abstention is not required here.

[26] Finally, Wolfson and defendants devote substantial
attention in their briefs to the merits of this action. We will
not address these contentions because it would be premature
for us to do so. We are also precluded from considering the
merits of this action as a matter of procedure. Wolfson’s
motion for summary judgment was denied by the district
court. Denial of a motion for summary judgment is ordinarily
not an appealable order. See Hopkins v. City of Sierra Vista,
931 F.2d 524, 529 (9th Cir. 1991); see also Jones-Hamilton
Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694 n.2
(9th Cir. 1992) (exceptions to general rule that denial of sum-
mary judgment not appealable). The district court’s denial
here of Wolfson’s summary judgment motion is not an
appealable order. See Burke v. Ernest W. Hahn, Inc., 592 F.2d
542, 546 (9th Cir. 1979) (“denial of a motion for summary
judgment is not an appealable order . . . even where an action
 WOLFSON v. BRAMMER 11637
is incorrectly dismissed by the district court for lack of subject
matter jurisdiction”) (citation omitted).

VI.

In conclusion, the district court erred by dismissing this
action as moot. This action falls within the exception to moot-
ness for actions “capable of repetition, yet evading review.”
Wolfson has stated an intention to seek office in the future
that is sufficient, under our law, to preserve jurisdiction. The
district court’s finding that Wolfson had not expressed an
intention to seek elected judicial office in the future was
clearly erroneous. We hold that some of Wolfson’s claims
against the solicitation, endorsement, and campaigning prohi-
bitions are ripe, but Wolfson’s claims regarding the pledges
and promises clause are not ripe.

REVERSED and REMANDED.

GRABER, Circuit Judge, concurring in part and dissenting in
part:

I respectfully concur in part and dissent in part. I agree with
the majority on all issues except the ripeness of Plaintiff ’s
claims against the Arizona Commission on Judicial Conduct.

The majority holds that Plaintiff ’s claims regarding the
solicitation, campaigning, and endorsement clauses are both
constitutionally and prudentially ripe as to all the defendants
collectively. I agree with that conclusion. But, under the cir-
cumstances, we also should consider whether those claims are
ripe as to each of the defendants. See, e.g., Charter Fed. Sav.
Bank v. Office of Thrift Supervision, 976 F.2d 203, 209 (4th
Cir. 1992) (holding that a claim was ripe as to one defendant
but not as to another, who could take action against the plain-
tiff only upon the occurrence of future contingent events). I
11638 WOLFSON v. BRAMMER
bear in mind that a claim is not ripe “if it rests upon contin-
gent future events that may not occur as anticipated, or indeed
may not occur at all.” Texas v. United States, 523 U.S. 296,
300 (1998) (internal quotation marks omitted).

Here, the Arizona Chief Bar Counsel supervises the initial
screening of matters and oversees the prosecution of disci-
pline cases. Ariz. R. Sup. Ct. 51(a). Plaintiff would face a
genuine threat of imminent prosecution by the Arizona Chief
Bar Counsel if he were to campaign as he desires and intends
to do. This claim rests on “a single factual contingency,”
namely, Plaintiff’s participation in a judicial election, rather
than on “a ‘series of contingencies.’ ” Educ. Credit Mgmt.
Corp. v. Coleman (In re Coleman), 560 F.3d 1000, 1005 (9th
Cir. 2009). Thus, I conclude that Plaintiff’s claims regarding
the solicitation, campaigning, and endorsement clauses are
ripe as to the Arizona Chief Bar Counsel.

Similarly, Plaintiff’s claims regarding the solicitation, cam-
paigning, and endorsement clauses are ripe as to the defen-
dants who are members of the Disciplinary Commission of
the Arizona Supreme Court. Those defendants would become
involved in enforcing the canons if the Chief Bar Counsel
were to prosecute Plaintiff—a threat that is genuine—and if
either Plaintiff or the Arizona State Bar sought review of the
hearing officer’s report. Ariz. R. Sup. Ct. 49(c)(1), 57(l).
Plaintiff’s appeal of a report unfavorable to him is a foregone
conclusion, and I would not rely on the speculation that the
Bar might refrain from appealing a report unfavorable to it.
Thus, I conclude that there is a genuine threat that the Disci-
plinary Commission would become involved in imminent
enforcement of the canons against Plaintiff.

By contrast, under its own rules, the Arizona Commission
on Judicial Conduct will have disciplinary jurisdiction over
Plaintiff only if he runs for judicial office and wins. The out-
come of an unspecified future election is plainly an uncertain
“contingent future event[ ]” within the meaning of Texas. 523
 WOLFSON v. BRAMMER 11639
U.S. at 300 (internal quotation marks omitted). Although the
Commission ultimately might have retrospective jurisdiction
over Plaintiff’s actions as a candidate, if he were to be elected
to judicial office, the possibility of that occurring remains
purely speculative.

Even in the First Amendment context, a plaintiff must have
a reasonable fear that the law in question will be enforced
against him or her. Cal. Pro-Life Council, Inc. v. Getman, 328
F.3d 1088, 1095 (9th Cir. 2003). Here, because the possibility
of jurisdiction by the Commission is so speculative, Plaintiff
faces no “genuine threat of imminent prosecution” before that
body. San Diego County Gun Rights Comm. v. Reno, 98 F.3d
1121, 1126 (9th Cir. 1996) (internal quotation marks omitted).
Because the potential for the Commission to discipline Plain-
tiff is speculative and rests on a series of contingencies, not
all of which are within his control, I would hold that Plain-
tiff’s claims against Defendants who are members of the
Commission are not ripe and must be dismissed without prej-
udice. In all other respects, I join the opinion.