High Court Could Consider Campaign Cash in Judicial Races

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, September 2, 2014..........When Lanell Williams-Yulee began running for a Hillsborough County judgeship in 2009, she signed a letter to would-be supporters seeking contributions for her campaign.

Now, five years later, Williams-Yulee's letter could spur the U.S. Supreme Court to wade into a First Amendment debate about whether it is constitutional for Florida and other states to bar judicial candidates from personally soliciting campaign contributions.

Williams-Yulee's attorneys have asked the U.S. Supreme Court to take up the issue, after the Florida Supreme Court in May rejected arguments that the ban is unconstitutional and found that Williams-Yulee violated a code of conduct.

The possibility of the U.S. Supreme Court taking up the issue got a boost last month when The Florida Bar --- which filed the complaint against Williams-Yulee --- also urged the high court to resolve the matter. The Bar said in an Aug. 22 brief that it stands behind its position that judicial candidates should not personally solicit contributions, but that appellate courts across the country have taken differing positions on the issue.

"The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,'' said the brief filed by Bar attorneys Barry Richard and Hope Keating. "In this instance, the conflicts deal with the proper balance between two compelling interests at the heart of a free and just society. The manner in which that balance is struck should be applied uniformly to all citizens in all places and before all tribunals."

The Florida Supreme Court, in a 5-2 ruling May 1, reiterated earlier positions that the ban on judicial candidates soliciting money "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." Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis, Peggy Quince and James E. Perry were in the majority, while justices Charles Canady and Ricky Polston dissented.

But in asking the U.S. Supreme Court to take up the issue, attorneys for Williams-Yulee said the prohibition violates First Amendment rights. They wrote in a June brief that "there is little doubt that the Florida Supreme Court’s decision in this case is wrong. (The canon of the state's code of judicial conduct involved in the case) is a content- and speaker-based restriction on political speech; such laws rarely survive strict judicial scrutiny, and this one should not."

It remains unknown whether the U.S. Supreme Court, which receives thousands of requests a year to hear cases, will take up the matter. The briefs were posted last week on the website SCOTUSblog.

While judicial candidates are barred from personally soliciting contributions, they can establish committees that are allowed to raise and spend money. The June brief filed by Williams-Yulee's attorneys says 39 states use some form of electing judges, with 30 having laws or rules aimed at preventing personal solicitations of contributions. It said 22 of the 30 are "blanket" prohibitions, similar to the Florida ban.

Williams-Yulee, who lost her bid to become a Hillsborough County judge, received a reprimand in the Florida Supreme Court decision. Her attorneys, including a Yale Law School faculty member and attorneys from Washington and Orlando, contended in the brief that the case presents a good "vehicle" to resolve the issue nationally.

"The Florida Supreme Court expressly reached and clearly decided the federal constitutional issue, and none of the relevant facts is in dispute,'' the brief said. "And this case involves a mass mailing by a non-judge candidate --- precisely the kind of innocuous communication that (three federal appellate courts) expressly agree is protected by the First Amendment."