Michael Kimberly, Mayer Brown partner ()
As the amount of money in judicial elections swells across the nation, a major barrier to the candidates themselves directly soliciting the funds is under constitutional attack in the U.S. Supreme Court.
Thirty-nine states use elections to choose or retain their judges. Of that number, 31, including New York, prohibit judicial candidates from personally soliciting campaign contributions.
“These types of provisions are prophylactic,” said Matthew Menendez, counsel to the Democracy Project at the Brennan Center for Justice. “Once you don’t have them, there is an arms race. There is a risk that taking down more of the protections against these arms races could further erode public confidence in the courts.”
One of the 31 state rules is Canon 7C(1) of the Florida Code of Judicial Conduct. Besides banning personal solicitations, the canon prohibits judicial candidates from soliciting attorneys for public endorsements, but allows the creation of candidate campaign committees to solicit money and attorney endorsements.
In May, the Florida Supreme Court rejected a First Amendment challenge to the canon brought by Lanell Williams-Yulee who, as a non-judge candidate for county court judge in Hillsborough County, was charged by the Florida Bar with violating it. Shortly after she registered as a judicial candidate, Williams-Yulee drafted and signed a mass-mail letter announcing her candidacy and seeking campaign contributions. The state Supreme Court, agreeing with the state bar, issued a public reprimand and assessed costs of $1,860.30.
In finding that the canon did not violate the First Amendment, the Florida court held that the state had compelling interests in “protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary,” a holding “that is bolstered by the broad acceptance of comparable compelling state interests by other state supreme courts.”
The justices added that the canon was narrowly tailored to further those interests because Williams-Yulee “was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising.” The canon, in effect, left ample alternative means for judicial candidates to raise the money to campaign, according to the court.
The Florida ruling caught the eye of Mayer Brown partner Michael Kimberly, who looks for cases for the Yale Law School’s Supreme Court clinic to take on, particularly at the certiorari stage. He found a sharp circuit conflict on the First Amendment issue raised by the judicial canon. The clinic contacted Williams-Yulee’s local counsel and offered pro bono help with a petition to the Supreme Court.
“I handle a lot of cert petitions,” Kimberly said. “Among the cases I’ve been involved with, this is one of the strongest in terms of circuit conflict. The question is very discrete. The canons from state to state are generally all the same because they follow the ABA model code. And the importance of the issue—literally every judicial election in 31 states with canons are affected—makes it likely the court will take an interest.”
The petition in Williams-Yulee v. The Florida Bar asks the justices whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.
Kimberly and partners Andrew Pincus and Charles Rothfeld tell the court that the federal courts of appeals for the Third and Seventh circuits and the highest courts of Arkansas, Florida and Oregon have held that such rules do not violate the First Amendment. But the Sixth, Eighth, Ninth and Eleventh circuits have held that they do.
Although they concede that impartiality and the absence of corruption are compelling interests, they argue that the fatal constitutional flaw is the failure to narrowly tailor the remedy. The canon, they contend, “does too much and does too little” to advance those compelling interests.
Quoting from court opinions striking down similar rules, the petition argues that reproduction of a judicial 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.”
And so, no 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, they add.
And the prohibition does too little to further interests in impartiality and public confidence, they argue, because the candidate’s committee can do what the candidate may not and there is nothing to prevent the candidate from knowing who has contributed or refused.
These bans have a chilling effect, the petition says, because they “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.”
The amount of money injudicial elections has changed dramatically during the past 15 years, according to Bert Brandenberg, executive director of Justice At Stake, which tracks the spending. From 2000 through the last election cycle, more than $263 million was raised in state high court elections, he said.
“We’re watching spending records fall,” Brandenberg said, noting that of 22 states holding contested elections for judgeships, spending records were smashed in 20 in the last decade. That has happened as well in retention elections in Florida, Illinois, Iowa and Tennessee.
His organization and Brennan Center are watching the Florida case closely to see whether the justices will grant review.
The members of New York’s high court, the Court of Appeals, are appointed, not elected. But 73 percent of the state’s full-time judgeships are filled through election, said Chief Administrative Judge A. Gail Prudenti, often resulting in expensive contested campaigns (“Promoting Confidence in the Elected Judiciary,” A. Gail Prudenti, NYLJ, July 19, 2013).
Nor are lawyers in New York barred from contributing to judges. However, the state did implement a rule in 2011 that restricts the assignment of cases where participating litigants, counsel or firms have made significant campaign contributions to the assigned judge within the previous two years (Rules of the Chief Judge, Part 151).
“The Constitution makes judges different from other officeholders,” Brandenberg said. “They can’t make outright promises; they’re supposed to be accountable to the facts and law of the case. Rules like [these canons] have provided insulation from political pressure. “The risk here is you would have one more step to wear away that insulation. The stakes couldn’t be higher.”
There are unique considerations in the judicial context, Kimberly agreed, but he pointed to comments by former Justice Sandra Day O’Connor in her concurrence in a 2002 decision invalidating certain restrictions on judicial candidates’ speech. She wrote: “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.”