FAN 25 (First Amendment News) — High Court again asked to intervene in state judicial elections

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Lanell Williams-Yulee

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Williams-Yulee v. The Florida Bar. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

A petition for certiorari has been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

→ Flashback: FAN 15, “Free Speech & Judicial Elections: The Return of Kaus’ Crocodile,” May 14, 2014

Facts — Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.'” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter 

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

See YouTube video of TV political ad here.

State Judicial Elections 

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Conflicts in Lower Courts 

On the one hand, the Third and Seventh Circuits along with the high courts of Arkansas, Oregon, and now Florida have ruled that such solicitation bars do not run afoul of the First Amendment.

On the other hand, the Sixth, Eighth, Ninth, and Eleventh Circuits have ruled otherwise. (Note the irony: Florida is in the Eleventh Circuit.)

Differing Rules for Sitting Judges vs Judicial Candidates? In light of the above, counsel for the Petitioner notes: “It is not in fact certain that that the Seventh Circuit or the supreme courts of Arkansas and Oregon would align with the Florida Supreme Court in this case. Unlike here [those cases] involved solicitations by sitting judges. In the Ninth Circuit’s view, the constitutional balance may differ in cases involving incumbent candidates as compared with ‘non-judge candidates.’ [citations omitted] But we are skeptical of any constitutional distinction between incumbents and non-incumbents, which would subject competitors in a single election to different First Amendment rules.”

Andrew Pincus, counsel for Petitioner

Andrew Pincus, lead counsel for Petitioner

First Amendment Arguments

The main First Amendment arguments advanced by counsel for the Petitioner are:

  1. The primacy of electoral speech: Speech uttered during a campaign for political office is at the core of the First Amendment.
  2. The solicitation ban amounts to a content restriction on political speech: “‘[A]ny restriction based on the content of the [regulated] speech must satisfy strict scrutiny,’ meaning that it ‘must be narrowly tailored to serve a compelling government interest.’ [citation omitted]. Here, there is no denying that personal solicitation bans like Canon 7C(1) ‘are content-and speaker-based restrictions on political speech’ that expressly limit what a candidate may say in the course of his or her campaign.”
  3. No compelling state interest & lack of narrow tailoring: “There is little doubt that impartiality [properly understood] is a compelling state interest—but Canon 7C(1) both ‘does too much, [and] does too little, to advance’ it. On the one hand, it does too much because ‘the canon prohibits a range of [indirect] solicitations, including speeches to large groups and signed mass mailings,’ that ‘present little or no risk of undue pressure or the appearance of a quid pro quo.’ The ‘reproduction of a candidate’s signature on a contribution letter will not magically endow him or her with a power to divine, first, to whom that letter was sent, and second, whether that person contributed to the campaign or balked at the request.’ Thus ‘[n]o one could reasonably believe that a failure to respond to a signed mass mailing asking for donations would result in unfair treatment in future dealings with the judge.’ The same is true of speeches to large assemblies of voters. On the other hand, a personal solicitation ban does too little because, ‘[a]lthough the candidate himself may not solicit donations, his campaign committee may.’ . . . ‘[I]f impartiality or absence of corruption is the concern, what is the point of prohibiting judges from personally asking for solicitations or signing letters, if they are free to know who contributes and who balks at their committee’s request’ in their stead?”
  4. The solicitation ban promotes favoritism: “More generally, personal solicitation bans favor ‘incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ [citation omitted] That is not an outcome this Court should countenance.”
  5. The solicitation ban has a chilling effect on speech & encourages self-censorship: “[P]ersonal solicitation bans encourage candidates for judicial office to censor themselves in communications of every sort for fear that what they say may be taken as a solicitation of financial support.”

Due Dates

→ The Florida Bar’s Reply Brief is due on August 25, 2014.

→ The case will be distributed for the Conference of September 29, 2014.

→ Updates to follow as case progresses

(Hat tip to Maureen Johnston.)

 Forthcoming Book on State Judicial Elections & Campaign Advertising 

Resource Materials re State Judicial Elections

Main Supreme Court Cases

  1. Caperton v. A.T. Massey Coal Co. (2009) (Theodore Olson = counsel for Petitioner)
  2. Republican Party of Minnesota v. White (2002) (James Bopp, Jr. = counsel for Petitioner)

C-SPAN & Other Recorded Events re Judicial Elections

Miscellaneous

Quick Hits

State Judicial Elections in Recent News Stories 

Last Scheduled FAN Column: #24 — “Stephen Barnett: The Little-Known Man Behind the Well-Known Words

Next Scheduled FAN Column: Wednesday, August 6th

 

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1 Response

  1. Brett Bellmore says:

    “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”

    I am at somewhat of a loss as to why elected judges are expected to be more partisan, and less impartial, than judges selected by elected politicians. It seems to me that any process for selecting judges has a built in problem of bias towards those who do the selecting, and given that, we should prefer judges who are biased in favor of the electorate, rather than the government.

    On a side note, how many “captas” does this site have? Seven? It seems to rotate through a remarkably short list.