FAN 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case

Barry Richard, counsel for Florida Bar

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. 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.

As I mentioned, a petition for certiorari had 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.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

  1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
  2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
  3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

Additional information about the case is set out in FAN #25. Stay tuned for future developments.

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