The Supreme Court Has Again Agreed to Do Something Very Good or Very Bad to State Judicial Ethics
Posted by judicialethicsforum on Sunday, October, 5, 2014
The Supreme Court has agreed to hear another case on the Code of Judicial Conduct. It has not explicitly done so since Republican Party of Minnesota v. White (and we all know how that one turned out; cf. also the Caperton and Carrigan opinions). Judicial candidate Lanell Williams-Yulee signed a mass-mailing in which she solicited contributions to her campaign. Not surprisingly for those who have read the judicial ethics code in effect in a majority of states, this conduct violated the prohibition against personally soliciting campaign contributions. “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds. . . .” Fla. Code of Judicial Conduct Canon 7C; see also 2007 Model Code R. 4.1; 1990 Model Code Canon 5C. As the 2007 Model Code (but not the Florida Code) helpfully defines, moreover, “’Personally solicit’ means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication.” The Florida Supreme Court thus publicly reprimanded Williams-Yulee for violating the Canon, notwithstanding her complaint that the Canon violates the First Amendment “in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.” The circuits have split on the First Amendment issue, and Williams-Yulee sought cert on that basis. (Of note, her petition relies in part on the Ninth Circuit’s recent split decision invalidating the personal solicitation canon as applied to non-judges, but the Ninth Circuit has since agreed to rehear the appeal en banc this December. See Wolfson v. Concannon en banc petition and panel opinion.) In part because Williams-Yulee’s adversary (the Florida Bar) made the controversial decision to urge the Supreme Court to hear Williams-Yulee’s petition, the Supreme Court has agreed to do so.
Of potential interest, the cert petition, in Appendix D, includes a copy of Williams-Yulee’s solicitation letter. In it, Williams-Yulee tells an unknown number of local lawyers, litigants, and others that:
I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. . . . Thank you in advance for your support.
As an editorial comment, let’s hope that at least five justices recognize the significantly coercive and corrupting effects of personal solicitation (both in reality and in appearance and both as to the judge and the contributor), particularly combined with the fact that the judges or prospective judges would be directly soliciting money from the same lawyers and parties who appear or will appear before them.