Scott Forsyth, The Daily Record Newswire
On Tuesday, the United States Supreme Court heard oral argument in a case whose outcome may change, possibly dramatically, the way judicial candidates solicit money, starting with the invitation. The case is Williams-Yulee v. Florida Bar, 138 So.3d 379 (Fl. 2014).
I have a special interest in the case, because I am a member of the Florida Bar. My registration fee of $325 is helping to pay for the bar's defense of a very shaky position. Such is the practice of law in the Sunshine State.
The petitioner in the case is Lanell Williams-Yulee. She ran for county court judge in Hillsborough County in 2010 and was trounced by the incumbent.
After registering as a candidate, Williams-Yulee sent out a mass mailing, over her signature. She sought an "early contribution of $25, $50, $100, $250 or $500" to "help raise the initial funds needed to launch the campaign and get our message out to the public."
The appeal did not generate any dollars but did not go unnoticed. The Florida Bar cited Williams-Yulee for violating a canon of the Florida Code of Judicial Conduct. The canon prohibits a judicial candidate from "personally solicit(ing) campaign funds" and from "personally" "solicit(ing) attorneys for publicly stated support." The same canon allows a candidate to establish a committee of "responsible persons to secure ... funds ... and to obtain public statements of support."
Williams-Yulee freely admitted she signed the letter. She defended her action by asserting the canon as applied to her violated the First Amendment.
The disciplinary proceeding went to the Florida Supreme Court. As expected, it held the canon to be constitutional. It then publicly reprimanded Williams-Yulee and assessed costs of $1,860.30 against her.
A state is free to elect judges or have them appointed. If it chooses the former approach, "it must accord the participants in the process ... the First Amendment rights that attach to their roles," Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002). One such right is the ability to "to speak out on disputed issues," Id. at 781. Another right is the solicitation of funds, so important to the success of a campaign.
A state may regulate the exercise of one of the protected electoral rights only if the regulation serves a compelling government interest and the state employs the least restrictive means to achieve the interest.
All parties agree Florida has compelling interests "in preserving the integrity of (its) judiciary and maintaining the public's confidence in an impartial judiciary." We do not want a judiciary that can be bought or appears to be vulnerable to the influence of money.
Where the parties disagree is on the "fit" between the state's interests and the means (a ban on personal solicitation) selected to achieve the interests. They also disagree on whether less restrictive means exist.
Williams-Yulee and her supporters, including the ACLU, argue the fit is very poor. A direct mail letter does not present a risk the candidate will apply undue pressure on the person receiving the letter. To be contrasted is a meeting in chambers wherein the candidate asks for money.
Under the canon the candidate may still solicit money and support through a committee and other agents. The canon does not prevent the committee from telling the candidate who has contributed and who has not. The canon does not prevent the candidate from penning a thank-you. She just cannot ask for a donation. These loopholes make for a rule that is both underinclusive and overinclusive.
The bar sees the ability of a candidate to raise funds through a committee to be an adequate alternative to direct solicitation.
Williams-Yulee and her supporters propose at least four less restrictive and more effective means to protect judicial integrity.
A state can adopt a narrowly-tailored rule prohibiting a sitting judge from soliciting parties and their counsel in cases pending before the judge. A candidate should disclose her contributions and post this information online. Recusal is always available. Lastly, to dampen the influence of private money, a state may publicly finance judicial elections.
Look for a new fundraising regime to arise following the Supreme Court's decision. Judicial candidates will be permitted to solicit personally money and support, maybe even by telephone or in person, just like candidates for other offices. Will the sky at the Hall of Justice fall as a result? Stay tuned.
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Scott Forsyth may be contacted at (585) 262-3400 or scott@forsythlawfirm.com
Published: Thu, Jan 22, 2015
