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Judicial Campaigning Issue Put to High Court

(CN) - The Supreme Court wrangled Tuesday over whether judges have a First Amendment right to solicit campaign contributions on their own behalf.

The case stems from a mass-mail fundraising letter Lanell Williams-Yulee signed in 2009, announcing her candidacy for county court judge in Hillsborough County, Fla., and seeking donations for her campaign.

A reprimand by the Florida Bar said she violated the state's code of judicial conduct.

When the Florida Supreme Court upheld the prohibition on fundraising in May 2014, it held that such conduct might cause the public to question a judge's impartiality.

The U.S. Supreme Court took up the case in October and considered at a hearing Tuesday whether the law has a chilling effect on political speech.

"What about the [government's] interest in judicial dignity?" Justice Antonin Scalia asked Williams-Yulee's attorney Andrew Pincus, according to a transcript.

Scalia continued: "I mean, there's stuff we don't let judges do that we let other people do. Such as - it's at least a tradition, I'm not sure whether it's in any ethical rules - but let's assume it was in ethical rules that judges do not respond in op-ed pieces to criticisms of their decisions. All right. John Marshall did that but he did it anonymously."

Pincus admitted that there is such an interest, but said it should be limited to "the acts of judges as judges."

As it is, Florida permits judges to write thank-you notes to contributors, but not sign a mailing asking for donations; it permits a judge's campaign committee to raise funds, but not the judge him- or herself.

Williams-Yulee's brief says "it is the general practice of electing judges, not the specific practice of judicial campaigning, that gives rise to impartiality concerns,"

Pincus echoed this sentiment at oral argument. "Some things necessarily come with the fact that a state has made the choice to choose judges via election and that includes the fact of an election and some First Amendment requirements that apply to election-related speech," he said.

The attorney argued that it makes little difference whether a campaign letter comes from the judge's campaign committee or the judge himself - the judge will know either way who contributes.

Justice Sonia Sotomayor disagreed. "I can actually see how receiving a signed letter from the judge saying, give, and or a telephone call or a personal meeting has an incrementally greater impact than a letter," Sotomayor said. "I get - even today, I get a whole lot of campaign committee letters, and I just throw them out."

Pincus said he agreed that it would be permissible for the court to draw a line between written and oral communications, as a personal conversation could be considered more coercive than a letter.

The problem, Justice Stephen Breyer said, is that "the normal response to a lawyer - by a lawyer to a judge in any minor request or, you know, something normal, the answer is yes. That's until they get out the door. I don't know what they say when they get out the door.

"But that is such a common experience," Breyer said. "That when the judge says, can you please - yes. That's the answer. And you have to learn how to interpret when they really want to do no. And that's almost universal."

For Pincus, if that was Florida's main concern, it would prohibit judges from soliciting just lawyers. In practice, however, the law prohibits judges from soliciting anyone.

Barry Richard argued on behalf of Florida, and told the court the rules were "an extremely minimal imposition of the candidate's freedom of expression."

Under heavy questioning, Richard acknowledged that permitting a judge to write a thank-you note contradicts the government's interest in keeping judges personally out of political elections.

But the permitted thank-you note "does not undermine the fact that by telling judges that they cannot personally, face-to-face or by buttonhole or by telephone call solicit it, that it does reduce significantly the public's impression of the fact that there is a quid pro quo," Richard said.

Scalia agreed. "If you write a thank-you note, you are not a mendicant," he said. "You are not going around holding your hat out asking people for money."

Williams-Yulee argued in her brief that the personal-solicitation ban favors "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." (Parentheses in original.)

Chief Justice John Roberts told Richard he found this criticism compelling.

"It seems to me that it's self-evident, particularly in judicial races, where that the prohibiting a form of raising funds is to the great advantage of the incumbent because the only way that, in most judicial raises, the judge incumbents are going to be challenged if you have somebody who can get their own distinct message out," Roberts said.

Richard responded that, on the contrary, allowing an incumbent judge to personally reach out to lawyers, even litigants, would give them a huge advantage over challengers.

Breyer asked: "Where does it come from, justice shall not be sold nor shall it be denied? I mean, that's at least 800 years old."

Justice Roberts replied, "Well, 800 years ago, judges were not elected."

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