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August 15, 2014
Should judicial candidates personally solicit funds?

The U.S. Supreme Court has asked The Florida Bar to respond to an appeal that challenges the judicial canon prohibiting in-person solicitation of campaign contributions by judicial candidates.

The appeal came from a lawyer who unsuccessfully ran for a Hillsborough County court judgeship. Lanell Williams-Yullee was investigated by the Bar and disciplined by the Supreme Court for personally signing a letter seeking campaign contributions.

Canon 7C(1) of the Code of Judicial Conduct specifies that judicial candidates for seats “filled by public election between competing candidates shall not personally solicit campaign funds. . . .” Bar rules prohibit lawyers running for judgeships from violating the judicial canons.

Williams-Yulee initially said she thought the prohibition against personal solicitations applied only when two or more candidates had filed for a seat, and her letter went out before anyone else had qualified. She later conceded this was a misreading of the canon, but still contended the direct solicitation ban violated her First Amendment rights.

The Florida Supreme Court agreed the canon impacts the First Amendment, but said it was constitutional because it was narrowly tailored to meet a specific state interest. The court also noted that most states have similar restrictions on judicial candidates.

“We conclude that Canon 7C(1) promotes the state’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests,” the court said. “Therefore, we hold that Canon 7C(1) is constitutional.”

The court dismissed two other campaign- related charges, saying there was insufficient evidence and approved the referee’s recommendation of a public reprimand for Williams-Yulee.

Chief Justice Jorge Labarga and Justices Barbara Pariente, Fred Lewis, Peggy Quince, and James Perry concurred in the May 1 per curiam opinion, while Justices Ricky Polston and Charles Canady concurred in part and dissented in part, without an opinion.

Williams-Yulee is represented by lawyers from Orlando, Washington, D.C., and the Yale Law School Supreme Court Clinic in her petition for a writ of certiorari. The petition argues that the issue of judicial candidates directly seeking campaign contributions is “important and frequently recurring . . . .”

“Thirty-nine states provide for the selection or retention of judges by popular vote. And — consistent with the American Bar Association’s Model Code of Judicial Conduct — nearly every such state has adopted a rule prohibiting judicial candidates from personally soliciting campaign contributions,” the petition said.

“The lower courts are deeply and expressly divided over the question whether rules like Canon 7C(1) violate the First Amendment. The federal courts of appeals for the Third and Seventh circuits and the highest courts of Arkansas, Oregon, and (in this case) Florida have held that such laws do not violate the First Amendment. By contrast, the federal courts of appeals for the Sixth, Eighth, Ninth, and Eleventh circuits have held that they do,” the petition said.

The petition also argued that the Florida Supreme Court reached the wrong decision on the First Amendment question, arguing, “Canon 7C(1) is a content- and speaker-based restriction on political speech; such laws rarely survive strict judicial scrutiny, and this one should not. Immediate review is therefore warranted.”

As it normally does in such cases, the Bar waived filing a response to the filing of the writ. But in a July 24 letter, U.S. Supreme Court Clerk Scott S. Harris said the court requested the Bar to file a response by August 25. (The request went to the Bar because Williams-Yulee was prosecuted under the Code of Judicial Conduct for her actions as a lawyer. If a sitting judge had been charged with violating the same canon, the case would have been handled by the Judicial Qualifications Commission.)

The response was being prepared as this Bar News went to press.

[Revised: 04-30-2015]