Commentary: Are Judicial Elections Different After All? Williams-Yulee v. The Florida Bar.

Ever since the 2002 case of Republican Party of Minnesota v. White, in which the U.S. Supreme Court struck down, on First Amendment Grounds, the “announce clause” of the Minnesota Supreme Court’s Code of Judicial Conduct, which prohibited judges and judicial candidates from announcing their views on disputed legal or political issues, judicial elections have become increasingly hard to differentiate from those of the political branches. Ohio had already eliminated the announce clause from its rules of judicial conduct by 2002, but had other judicial campaign speech restrictions which it rewrote somewhat after the U.S. Supreme Court ruling. Under the current Ohio Code of Judicial Conduct, a judge shall not, “in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” This provision was moved out of the campaign conduct section.

Justice Scalia authored the 5-4 decision in Republican Party of Minnesota v. White. William Rehnquist was Chief Justice then, and joined the majority. Justice Scalia’s overarching point was that if states choose to elect their judges, they cannot prevent candidates from talking about exactly the kinds of things voters need to know in deciding which candidates to vote for. Justice Ginsburg, on the other hand, in dissent, saw a crucial distinction between judicial elections and those of legislators and governors. She believed that the state had a compelling interest in limiting judicial campaign speech-namely to preserve the public’s confidence in the integrity and impartiality of its judiciary.

“I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons…Legislative and executive officials serve in representative capacities. They are agents of the people; their primary function is to advance the interests of their constituencies. Candidates for political offices, in keeping with their representative role, must be left free to inform the electorate of their positions on specific issues. Armed with such information, the individual voter will be equipped to cast her ballot intelligently, to vote for the candidate committed to positions the voter approves…Judges, however, are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. “[I]t is the business of judges to be indifferent to popularity.” (citations omitted). They must strive to do what is legally right, all the more so when the result is not the one “the home crowd” wants.”

After Republican Party came out, other restrictions on judicial campaigning began to be challenged. One of those was a prohibition against judges and judicial candidates asking for money directly. Traditionally, judges and judicial candidates raised money through campaign committees, but could not and did not ask for money personally. The reason should be totally obvious. It is just unseemly for judges to hit up lawyers and litigants, for example, for money to fund their campaigns. What if those folks say no?

But, ahh, the power of speech, and even more, the power of money as speech.

Kentucky, like many states including Ohio, barred judges and judicial candidates from directly soliciting campaign contributions. In 2006, Marcus Carey, a candidate for the Kentucky Supreme Court, challenged several of the Kentucky campaign rules, including the ban on personal solicitation of campaign funds. At the time, Ohio had virtually the same rule. In 2010 in Carey v. Wolnitzek, the U.S. Court of Appeals for the Sixth Circuit, which includes Ohio, struck down the solicitation clause as overbroad and invalid on its face.

Ohio then relaxed its direct solicitation rule for judicial campaigns as well. Ohio still bans personal solicitation of campaign funds in judicial races, but there are now some exceptions to that general rule. Judicial candidates may make a general request for campaign contributions when speaking to an audience of twenty or more people, and may sign letters or send emails personally soliciting campaign contributions if the letter or electronic communication makes it clear that contributions must go to the campaign committee and not personally to the candidate.

Just when it looked like the trend was to make judicial elections just like all other elections, the U.S. Supreme Court threw a curve ball in Williams-Yulee v. The Florida Bar, decided April 29.

Lanell Williams-Yulee declared herself a candidate for a seat on the county court in Hillsborough County Florida (which includes Tampa). After she filed for that office, she sent out a letter announcing her candidacy and soliciting funds for her campaign. She signed the letter personally, and posted the same letter on her campaign website. She lost the primary. The Florida Bar filed a complaint against her, charging her with violating Canon 7(C)(1) of its Code of Judicial Conduct, which banned personal solicitation of campaign funds. This Florida rule was almost exactly like Ohio’s old one. Yulee brought a First Amendment challenge to the rule, but lost, and was sanctioned with a fine and a public reprimand. Ultimately, the Florida Supreme Court upheld the disciplinary action against Yulee, finding that the ban in Canon 7(C)(1) was narrowly tailored to meet the compelling state interest of “preserving the integrity of [its] judiciary and maintaining the public’s confidence in an impartial judiciary.”

Yulee brought her First Amendment challenge to the Florida rule to the U.S. Supreme Court, which accepted the case. In a 5-4 decision authored by Chief Justice Roberts, joined by the Court’s liberal members, the high court upheld Florida’s ban on the personal solicitation of campaign funds in judicial races. Justice Ginsburg wrote separately, joined by Justice Breyer. She also did not join the majority on one point on which there was only a plurality—she did not agree with the others in the majority that strict scrutiny applies here.

Justice Scalia wrote the lead dissent, joined by Justice Thomas. Justices Alioto and Kennedy also wrote dissents.

This decision is a marvelous irony to me, because Chief Justice Robert’s majority opinion pretty much debunks everything Justice Scalia wrote in Republican Party of Minnesota v. White, while Justice Scalia’s dissent sounds like a sour grapes version of everything he already said in that case.

Justice Ginsburg must feel greatly vindicated by the decision in Williams-Yulee, even though only Justice Breyer joined her in her separate concurrence. She wrote this in Republican Party: “Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote.” Chief Justice Roberts wrote this in Williams-Yulee: “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. “ And he went on, from there:

“ Here, Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny…The importance of public confi­dence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed.1961) (A. Hamilton). The judici­ary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions. It follows that public perception of judicial integrity is ‘a state interest of the highest order.’”

Interestingly, pretty much everything in the majority decision in Williams-Yulee is reflected in this comment to the current version of the Ohio Code of Judicial Conduct:

“A judicial candidate is prohibited from personally soliciting campaign contributions and personally receiving campaign contributions. These limitations protect four vital interests: (1) avoiding the appearance of coercion or quid pro quo, especially when a judicial candidate engages in a one-on-one solicitation of a lawyer or party who appears before the court; (2) preserving both the appearance and reality of an impartial, independent, and noncorrupt judiciary; (3) ensuring the public’s right to due process and fairness; and (4) furthering the public trust and confidence in the impartiality of the judicial decision-maker.”

It will be interesting to see if Ohio returns to its earlier, more restrictive anti-solicitation rule in judicial campaigns.