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Reactions to the USSC’s Yulee decision

Senior Editor Regular News

Reactions to the USSC’s Yulee decision

Senior Editor

At oral arguments on January 20, U.S. Supreme Court Chief Justice John Roberts grilled Barry Richard, who was representing The Florida Bar and defending a state judicial canon prohibiting judicial candidates from directly soliciting in any form for campaign contributions.

Barry Richard Richard had argued that such direct requests created a quid pro quo appearance incompatible with the state’s interests in promoting confidence in the judiciary and the justice system.

Roberts appeared skeptical, at one point asking Richard what would be wrong with a candidate asking old college friends for a donation.

“Nobody would say there’s any real risk of corruption because he’s calling up his old friends,” Roberts said. He went on to inquire, “Is there really the prospect of the appearance of partiality if you have a radio ad that says, you know, ‘This is my philosophy; please send me a contribution?’”

He also quoted former Justice Sandra Day O’Connor from an earlier opinion when she observed that when states allow judges to be elected, they have to give them latitude to campaign, adding, “You’re under a great burden in trying to figure out how you’re going to fix that without contravening the First Amendment.”

That would be the same Chief Justice Roberts who wrote the majority opinion in  Williams-Yulee v. The Florida Bar, case no. 13-1499  , a
5-4 decision which upheld the canon against direct solicitation by judicial candidates (see story in the May 15 Bar News ), and who said the court would not get into the “swamp” of trying to draw a line between what kinds of direct requests are or are not permissible.

‘Pleased to Win’

Richard said he wasn’t surprised.

“I didn’t feel it was hard questioning [from Roberts], he questioned both sides,” he said. “When you have two extreme ends and when they have firmly spoken, you expect they’re going to direct hard questioning to the opposition.”

The surprise for him was Justice Anthony Kennedy. Richard thought he had a 5-4 majority with a possibility of a 6-3 ruling if Roberts sided with him.

“I was pleased to win. The only thing that was surprising was how we won. Roberts was not a surprise because Roberts was an unknown factor,” Richard said, noting the chief justice had not written enough opinions on similar cases to speculate how he would decide. “Kennedy was a surprise. We directed a substantial portion of our argument toward Kennedy.”

He said in two previous cases involving political and campaign contributions, Kennedy had opposed regulations or limits, except in cases that might be seen as involving a quid pro quo. So that approach played a major part in the Bar’s brief in the case, Richard said, and he expected some sort of challenge from Kennedy at oral argument if the justice had changed his approach. But that didn’t happen, and Kennedy asked few questions.

Narrow Application

Instead Kennedy, as did Justice Antonin Scalia and Samuel Alito, wrote dissents, and Kennedy never mentioned the quid pro quo issue. The dissents argued that the impact of the majority ruling would make the strict scrutiny standard meaningless for weighing First Amendment regulations.

“This is such a narrow application, I don’t know where that came from,” Richard said, a point underscored by Chief Justice Roberts who noted judicial candidates remained free to engage in a wide range of campaign activities; they are just prohibited from directly seeking campaign contributions.

The case stemmed from a 2009 judicial candidacy by Lanell Williams-Yulee, who filed early for a Hillsborough County judgeship. At the time, she was the only person who submitted papers, which allowed her campaign to begin raising funds. Eventually, the incumbent for that judgeship also filed and ultimately won reelection.

Yulee sent out a personally signed letter announcing her candidacy and requesting campaign donations. Florida Judicial Canon 7C(1) requires that judges and judicial candidates create a committee to seek contributions and prohibits personal solicitations.

Yulee was prosecuted by the Bar after the election for violating Bar Rule 4-8.2(b), which requires lawyers who are judicial candidates to follow Florida’s Code of Judicial Conduct. (The Judicial Qualifications Commission can only prosecute judges.) She acknowledged that she misread the canon, thinking it did not apply until she had an announced opponent. But she also argued the First Amendment allowed the personal solicitation. The Florida Supreme Court rejected that argument in upholding a public reprimand for Yulee, who then petitioned the U.S. Supreme Court.

Because the Bar prosecuted the grievance case, it was named as the respondent. The case has national significance because 39 states have judicial elections and 30 of those have a contribution restriction similar to Florida’s. 

Richard underscored that point.

“The opinion, I think was a really important opinion as I argued in the brief. If this had been struck down, the state would have been left with no way to control judicial solicitation. It would have just been wide open,” he said.

That opinion was shared by a wide variety of parties who followed the suit and/or filed amicus briefs.

What’s it Mean?

The Bar News contacted Eugene Fidell of the Yale Law School Supreme Court Clinic, who helped prepare Williams-Yulee’s brief, but he referred questions to the Mayer Brown law firm, which also worked on the brief. Firm attorney Andrew Pincus handled the oral argument. Michael Kimberly of Mayer Brown, one of the attorneys who worked on the case, said the firm attorneys had decided not to comment on the decision.

Bar President Greg Coleman said the decision reaffirmed the Bar position as well as earlier decisions that judges are not like legislative and executive branch officials.

“Both personally and as president of the third largest bar in the country, I am ecstatic over the Supreme Court’s ruling,” he said. “It affirms our [Florida] Supreme Court ruling, which I think was directly on point and correct. I think the Supreme Court has set a line in the sand that says, ‘Look, if you are going to be a judge, you are subject to higher ethical standards than the rest of society.’

“It is probably one of the more if not the most pivotal U.S. Supreme Court rulings I’ve seen pertaining to the judiciary since I’ve been a lawyer. The independence of the judiciary is important and the appearance and transparency of our judges is paramount. The decision sends a very strong message to our judges.. . . To allow a breakdown in those judicial canons by allowing judges to personally put their hand out and ask for money would have been tasteless, would have been offensive, and would have been unacceptable.”

Chicago attorney Adam R. Vaught was one of five attorneys from Hinshaw & Culbertson who worked on the ABA’s amicus brief, which supported The Florida Bar.

“The arguments for upholding Florida’s contribution ban were strong, as the majority opinion demonstrates. But the constitutional questions this case presented are complex and can lead to different outcomes, as demonstrated by the dissents. It was by no means obvious how the Court would rule. So I would not say I am surprised by the outcome, but I am certainly relieved,” Vaught said.

More at Stake

He added that more than fundraising was at stake. “For instance, rules limit the time period when judicial campaign committees may accept contributions and fundraise. If the Court had struck down the personal solicitation rule, all these other rules would have been threatened. Judicial elections might have quickly become little different from executive and legislative elections. The rule, however, will thus continue in place with the goal of promoting public confidence that judges are ruling on law, rather than other concerns,” Vaught said.

Former Bar President John DeVault, speaking the day of the decision at a press conference of a conglomerate of organizations that supported the Bar position, noted that the judicial canon at issue dated back to the mid-1970s when scandals involving contributors to Florida Supreme Court justices led to the resignation of three justices.

“We’re pleased with the Chief Justice’s opinion,” he said. “I think it’s a terrific opinion. He [Roberts] finds the [state] has a compelling interest in promulgating the rule. Certainly it helps the perception from the public that judges in lower courts are not being directly influenced by campaign contributions.”

Former Florida Supreme Court Chief Justice Harry Lee Anstead, speaking at the same press conference, noted the decision has national import and that supporters of the Bar position were worried because the U.S. Supreme Court in recent decisions on partisan political campaigns have tended to strike down fund raising restrictions.

“I want to point out one enormous benefit to this decision,” he said. “It doesn’t apply only to the state of Florida. It applies to all of the states in the United States that have judicial elections.”

Anstead added he hopes states that have judicial elections but no restrictions on solicitations will now follow Florida’s lead.

“A second point,” he added. “You can write all of the law review articles and law journal articles and in many cases newspaper articles about the effect of money on judicial elections, but this decision from the U.S. Supreme Court shines a huge spotlight on judicial elections, especially the downsides of judicial elections. I’m hopeful this may also further educate the American public about the downside of judicial elections and perhaps spur movement toward other ways, such as merit selection and retention.”

Carolyn Frederickson, president of The American Constitution Society, one of the sponsors of the press conference, praised Justice Ruth Bader Ginsberg’s concurring opinion for citing some amicus briefs. Those briefs cited studies showing that 84 percent of the public believes that contributions to judges influence their rulings. They also looked at the flood of special interest money in some state judicial elections which has been tied to an 8 percent decrease in rulings in favor of criminal defendants and an increase in rulings favorable to business interests, which frequently are behind the campaigns supporting or opposing specific judges.

National Implications

Added Matt Menendez, of the Brennan Center for Justice at the New York University School of Law, another sponsor of the press conference, “I think the Chief Justice’s…opinion is a very pragmatic opinion. It expresses a very real concern with the real problems that judicial elections face with the rising tide of money. Most of the campaign contributions that are made to judicial candidates are made by lawyers and litigants….

“Isn’t this an incredibly modest regulation? All it is saying is the ask for money has to go through a campaign committee and the candidate can write thank-you notes….What this really does is signal to lower courts that states should be able to take reasonable steps to regulate judicial elections to protect the integrity of their courts.”

Coleman said he especially enjoyed the chance to sit with Richard during the oral argument.

“Having never appeared at counsel table before the U.S. Supreme Court, it gives the lawyer a very special view of how the U.S. Supreme Court justices interact with each other. They are very smart with different viewpoints and backgrounds,” he said. “They ask very difficult questions that are very difficult to answer on your feet. You have to find a way to answer the question without offending any of the justices, and Barry is a genius at that. It is fascinating to watch.”

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