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Archive for the ‘Canon 4’ Category

Williams-Yulee: The Blockbuster Judicial Ethics Case of the Year?

Posted by kswisher on Wednesday, April, 29, 2015

When the Florida Bar bans lawyers or judges from personal solicitations, the Supreme Court will, in a five-to-four decision, uphold the ban against the resulting First Amendment challenge.  Or so the Florida Bar now reasonably believes, having twice won in this fashion.  Twenty years ago, the Bar first won in Florida Bar v. Went For It, Inc. (concluding that the “Florida Bar’s 30-day restriction on targeted direct mail solicitation of accident victims and their relatives withstands [First Amendment] scrutiny”).  The second and (for our purposes) much more relevant case is now Williams-Yulee.  The Supreme Court of the United States has just upheld Florida’s ban on personal solicitation of judicial campaign contributions.  Joined by the Court’s so-called “liberal wing,” Chief Justice Roberts wrote the opinion of the Court blessing the ban.  (Florida’s ban on judicial candidates personally soliciting money is based on the 1972 ABA Code of Judicial Conduct, and 29 other states have similar bans based on the 1972, 1990, and 2007 ABA Model Codes; for further background on the Williams-Yulee case, click here and here.)  The opinion is partly a plurality opinion because Justice Ginsburg refused to join the part of the opinion concluding that strict (“exacting”) scrutiny applies to this judicial election regulation, which prohibits only a very narrow category of speech (i.e., a judicial candidate’s personal request for campaign money).  Thus, the Court effectively lacks a holding on the applicable standard of First Amendment scrutiny.  Five members of the Court (including Ginsburg), however, concluded that the canon is one of the “rare” regulations surviving strict scrutiny analysis.  The majority opinion will further provide critical support against other challenges to campaign-trail regulations in judicial elections, including the Ninth Circuit’s upcoming en banc decision in Wolfson (which had been stayed pending the opinion in Williams-Yulee).  The Ninth Circuit’s now-vacated panel opinion had relied largely on a distinction between (non-judge) judicial candidates and sitting judges — a distinction on which the Williams-Yulee opinion places absolutely no weight.

In Williams-Yulee, the Chief Justice made many fascinating and likely long-lasting distinctions, and three key, interrelated distinctions are highlighted below:

(1) On the nature of judges (vis-a-vis political officials):

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. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. . . . [A] State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.

(2) On the regulation of judicial elections (v. other elections):

The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. . . . Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” McCutcheon v. Federal Election Comm’n, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 39). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be“perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829–1830, p. 616 (1830). As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

(3) On judges’ solicitations (v. others’ solicitations):

[In her argument that the canon is fatally underinclusive,] Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to single handedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. . . .

The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” White, 536 U. S., at 790 (O’Connor, J., concurring). In the eyes of the public, a judge’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011–12, p. 15 (2013).

Further reading: The news coverage of this blockbuster and (result-wise) surprising opinion is mountainous.  Some great notes on the opinions (including the dissents) are available at the New York Times, Huffington Post, Election Law Blog, SCOTUS Blog, and Wall Street Journal, just to name a few.

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Posted in Canon 4, Judicial Campaigns | Leave a Comment »

Supreme Court to Permit Judges to Solicit Campaign Contributions Personally?

Posted by kswisher on Tuesday, January, 20, 2015

Readers undoubtedly know that the Supreme Court of the United States will soon decide whether judges, or at least judicial candidates, may solicit campaign contributions personally (i.e., in lieu of, or in addition to, the customary campaign committee of “responsible persons”).  The Court heard oral argument today.  It was not a disaster for those in support of limiting the actual and apparent corrupting effects of money (and judges’ direct solicitation of that money from the lawyers and parties likely to appear before them), but perhaps the best possible outcomes would be either a 5-4 decision upholding the Canon or a narrow decision essentially carving out a First-Amendment-driven, mass-mailing-like exception to the Canon.  (Williams-Yulee directly solicited money through a mass mailing, which generally does present less harm than in-person, telephonic, or other real-time solicitation.)  Interesting reading follows on this case and the oral argument:

(1) The Brennan Center posted a good summary of the case and links to all of the briefs, including the ACLU’s amicus brief (supporting judges who plan to mass-solicit money directly from anyone, including the lawyers and litigants who will appear before those judges) and the ABA’s amicus brief (supporting the Canon prohibiting such solicitation, whether in person or in writing).

(2) Adam Liptak from the New York Times just published a good summary of the oral argument.

(3) The transcript of the oral argument is here.  The Justices’ questions generally fall along anticipated ideological divides (e.g., the conservative Justices seem to support uninhibited solicitation of campaign contributions and the liberal Justices seem to support more regulation in judicial elections).  Justice Kennedy’s vote is key, and his few questions are not telling.  Stay tuned.

Posted in Canon 4, Canon 5, Judicial Campaigns | Leave a Comment »

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.

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Ethics Generally | Leave a Comment »

New Guidance for Judges and Judicial Employees Using Social Media

Posted by judicialethicsforum on Tuesday, June, 24, 2014

In addition to the recent ABA Ethics Opinion taking a generally pro-social-media tone, two new judicial ethics advisory opinions have been issued for federal and state judges.

First, for federal judges, the Committee on Codes of Conduct issued Opinion 112 in March.  It generally condemns various behavior on social media (e.g., “maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the [judge’s or judicial] employee’s own court,” “any use of a judge’s or judicial employee’s court email address to engage in social media or professional social networking,” and “‘liking’ or becoming a ‘fan’ of a political candidate or movement”).  The full Opinion 112 can be found here.  The link is also helpful because it contains the full text of the Committee’s opinions from the past five years.

Second, the Arizona Judicial Ethics Advisory Committee issued Opinion 14-01 in May.  It examines in a fair amount of detail the ethical issues arising from LinkedIn and Facebook (among other platforms) for both judges and judicial employees.  For example, it concludes that both judges and judicial employees generally should not recommend (or arguably endorse) attorneys on LinkedIn who appear in the court.  Turning to Facebook, it concludes that being a Facebook friend with a lawyer does not necessitate recusal in every case involving that lawyer, but the relationship might need to be disclosed to the parties, and if the judge is actually biased or if the judge’s impartiality might reasonably be questioned, simply “defriending” the lawyer will not fix the disqualification problem.  Similar to the federal opinion above, this state opinion also concludes that “a judge may not be a ‘friend’ of or ‘like’ [a legislator’s] or another judge’s reelection campaign Facebook page because Rule 4.1(A)(3) prohibits judges from endorsing another candidate for any public office.”

UPDATE: The Arizona opinion was slightly revised shortly after this post.  The revised opinion can be found here.  Many of the revisions are minor; probably the largest addition follows:

As to friending or liking the websites of political candidates, judicial employees other than a judge’s personal staff, courtroom clerks, and court managers may do so subject to the restrictions set forth in Rule 4.1. A judicial employee should not identify him or herself as a judicial employee in so doing and should avoid conduct that may give the impression the employee’s political activities are on behalf of the judiciary. Members of judges’ personal staff, courtroom clerks, and court managers are subject to the same political limitations as judges contained in Canon 4 of the Code of Judicial Conduct, except as provided in Rule 4.3 (Elective Judicial Department Office).

By the way, for an interesting Facebook-based disqualification case, see Chace v. Loisel, 2014 WL 258620 (Fl. Dist. Ct. App. Jan. 24, 2014).  There, the judge had tried to friend a litigant on Facebook, and the litigant essentially rejected the request based on advice from the litigant’s attorney.  The litigant claimed that the judge thereafter issued retaliatory rulings against her because she had rejected the judge’s friend request, and the litigant moved for disqualification.  The appeals court concluded that these facts were facially sufficient to warrant disqualification.

Posted in Canon 4, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

The Third ABA Judicial Ethics Opinion in Three Decades

Posted by judicialethicsforum on Thursday, February, 21, 2013

The ABA Standing Committee on Ethics and Professional Responsibility has just issued a new formal opinion on a timely judicial ethics topic.  The Ethics Committee has not addressed judicial ethics in its formal opinions for over four years (indeed, in the last thirty years, it has done so only three times; for the previous opinions, see here).  The next question almost automatically becomes — to what issue does the Model Code owe this attention?

Answer: Judges and Social Media.  For example, you may recall the controversial Florida judicial ethics opinion stating that judges cannot “friend” (on Facebook) lawyers who may appear before them; you may have seen elective judges (and their campaign committees) using social media to promote themselves; or you may have seen or heard about judges publicly endorsing candidates for public office through social media.  The brand new opinion speaks to all three of these examples (and a few others).  In light of the many judicial ethics considerations when judges communicate publicly (whether through social media or older methods), however, the opinion understandably offers very few bright-line rules.  The opinion does, however, generally take a pro-social media tone:

Judicious use of ESM can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.

For the full opinion, click here.

Posted in Canon 2, Canon 4, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

The ABA Considers New Ethics Rules for Judicial Campaign Contributions

Posted by kswisher on Sunday, January, 15, 2012

Following the ABA’s Resolution 107 (re: judicial disqualification and campaign contributions), the ABA’s Ethics and Discipline Committees have released for comment a series of ethics amendments that would add greater transparency to judicial campaign contributions and other campaign support.  A new Model Rule of Professional Conduct would guarantee that lawyers and law firms disclose their combined contributions to either an administrative court agency or the elected judge herself.  (Although the details need some ironing, this is a good idea; read why here.)  Furthermore, an amendment to the Model Code of Judicial Conduct would clarify when campaign contributions and other support (e.g., endorsements or campaign services) should result in the judge’s disclosure and recusal. 

The Committees will hear testimony at the ABA’s meeting next month in New Orleans.  To read the proposed amendments in full, click here.

Posted in Canon 2, Canon 4, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

Judicial Ethics on the Campaign Trail

Posted by judicialethicsforum on Monday, June, 21, 2010

The Seventh Circuit weighed in last week on three common judicial ethics rules governing campaigns.  Readers may recall that the Seventh Circuit is not shy about shaking things up in this area.  [See Buckley v. Ill. Jud. Inquiry Bd., 997 F.2d 224, 230 (7th Cir. 1993) (striking down announce clause well before White came along).]  To misappropriate Monroe Freedman’s famous term from another context, this new opinion is the latest in the growing “trilemma” of reconciling the First Amendment, Judicial Elections, and Impartiality (including its due process element).  The rules at issue this time around had prohibited three campaign practices: (1) joining a party; (2) endorsing partisan candidates; and (3) directly soliciting campaign contributions.  According to the court, this is how each rule fares, respectively: (1) unconstitutional; (2) constitutional; and (3) constitutional.  The full opinion, with dissent, can be found here (Siefert v. Alexander).  Readers may recall that the district court in early 2009 struck down all three prohibitions under First Amendment strict scrutiny analysis. 

Posted in Canon 4, Canon 5, Judicial Campaigns | 2 Comments »

Caperton Repercussions

Posted by graycynthia on Friday, July, 17, 2009

In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct.  Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics.  (For a discussion of the caselaw after White, click here.)

In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indiana upheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee.  Bauer v. Shepard, Opinion and Order (July 7, 2009).  The court relied in part on Caperton.

Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications.  Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices:  “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . .  For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”:  “Courts, in our system, elaborate principles of law in the course of resolving disputes.  The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments.  The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity.  Judicial integrity is, in consequence, a state interest of the highest order.”

The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »

Judicial Politics

Posted by graycynthia on Thursday, July, 9, 2009

Although the litigation such as that necessary to resolve the Senate race between Al Franken and Norm Coleman is fortunately extremely rare, it demonstrates the importance of having a non-partisan judiciary available to resolve such conflicts. Fortunately for Minnesotans, their legislature has declared that judicial elections should be non-partisan, and the Minnesota Supreme Court has implemented that decision by adopting a code of judicial conduct that prohibits judges and judicial candidates from endorsing political candidates and engaging in other partisan activity.  Therefore, none of the justices on the Minnesota Supreme Court had to recuse themselves because they had endorsed Franken or Coleman (although two had to recuse because they were on the state-wide canvassing board), and the majority of the highest court in the state was available to do the job for which they were elected – decide the most important legal issues for the people of the state.  Fortunately, a federal court recently rejected a challenge to the Minnesota endorsement clause so that, if a similar situation arises in the future, the same protections will apply.  Wersal v. Sexton, 607 F. Supp. 2d 1012 (District of Minnesota 2009).  The plaintiff in that case had argued that disqualification would protect judicial impartiality, but the court disagreed, focusing on the un-workability of recusal not in the rare case but “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.”

Wisconsin is not so fortunate, as a federal court there overturned the endorsement clause and other restrictions on partisan political activity even though judicial elections are supposed to be non-partisan by law.  Siefert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009).  The court believed the “gag order” was not “fooling anyone” because “many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as ‘Republican’ or ‘Democrat’ even if they do not explicitly run as such.” What the court fails to recognize is that by requiring judicial candidates to eschew party labels during the campaign, the code ensures that judicial candidates demonstrate their willingness to take on a new role and reject partisan loyalties and embrace judicial independence once on the bench.

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

McKoski on Judges’ Charitable Fund-Raising and Stationery Use

Posted by judicialethicsforum on Sunday, May, 10, 2009

The Honorable Raymond McKoski (Illinois) recently published a thorough examination of charitable fund-raising under the ethical rules, old and new.  Here is the abstract: 

To promote public confidence in the judicial system, judges are prohibited from engaging in conduct that reflects adversely upon their independence, impartiality, or integrity. Since public trust is damaged by on-bench and off-bench activities, codes of judicial conduct severely restrict a judge’s partisan political activities, private speech, business dealings, social life, religious activities, and charitable endeavors. This Article examines the restrictions placed on a judge’s fund-raising efforts in support of civic, educational, charitable, fraternal, professional, and religious organizations. The Article begins by tracing the evolution of judicial fund-raising regulations through the ABA Model Codes of Judicial Conduct of 1924, 1972, 1990, and 2007. Next, specific fund-raising prohibitions of the 2007 Model Code are evaluated against the rational supporting the state’s right to limit a judge’s extra-judicial activities. The Article concludes that some of the 2007 Code’s fund-raising restrictions are justified because they prevent measurable damage to confidence in the judiciary. Other rules, however, prohibit conduct that is either harmless to, or actually enhances, the image of the judiciary. Those restrictions are not justified and should be eliminated.

Judge McKoski also recently published a thorough exploration of judges’ private use of their official stationery, which likewise traces (among other things) the ABA’s treatment of the subject through the near century’s worth of Model Judicial Codes.  Links to both works can be found in Articles

Posted in Canon 3, Canon 4, Canon 5 | Leave a Comment »

Politics out of the courthouse

Posted by graycynthia on Monday, March, 2, 2009

The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.

Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).

But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.

So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.

 

Posted in Canon 1, Canon 4, Judicial Campaigns | Leave a Comment »

Judicial campaign fund-raising

Posted by graycynthia on Wednesday, February, 18, 2009

Judicial campaign fund-raising was one of the major judicial conduct stories in 2008, as it has been in the past and no doubt will be in the future. Campaign contribution and spending records were set in state supreme court races in 2008. In Caperton v. Massey, the United States Supreme Court decided to take a case raising the issue whether $3 million spent by a company’s CEO in support of a supreme court justice’s campaign presents due process considerations when that company appeals a $50 million verdict to the court. The case prompted the filing of nine amicus briefs in support of the petitioner, most representing the position of several individuals or organizations, and five in support of the respondent (see www.brennancenter.org/content/resource/caperton_v_massey).  Oral argument is scheduled for March 3, 2009.

Personal solicitation of campaign contributions led to judicial discipline in 2008, with a modern twist to some of the violations. A videotape on YouTube.com showed judicial candidate Willie Singletary telling riders at a motorcycle rally, after offering a blessing for the riders and their bikes, “There’s going to be a basket going around because I’m running for Traffic Court Judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20 you’re going to need me in Traffic Court, am I right about that?” The judge further stated, “Now you all want me to get there, you’re all going to need my hook-up right?” He was elected, and the Pennsylvania Court of Judicial Discipline publicly reprimanded him for personally soliciting and accepting campaign funds, conduct “so extreme as to bring the judicial office into disrepute,” and violating the requirement that a judicial candidate maintain the dignity appropriate to judicial office. In re Singletary, Opinion (December 1, 2008), Order (January 23, 2009) (www.cjdpa.org/decisions/jd08-01.html).

The Kansas Commission on Judicial Qualifications ordered a judicial candidate to cease and desist from publicly soliciting campaign contributions after receiving multiple complaints that he had sent attorneys a cell phone text message that stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!” Inquiry Concerning Davis, Order (July 18, 2008). The Commission found that the candidate personally solicited campaign contributions and that the intimidating nature of the text message violated Canon 1. The candidate accepted the order.

Later in 2008, however, in a challenge filed by a sitting judge, the U.S. District Court for the District of Kansas held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. Yost v. Stout (November 16, 2008). That same conclusion was also reached by the U.S. District Court for the Eastern District of Kentucky in 2008 (Carey v. Wolnitzek, Opinion and order (October 15, 2008)) and the U.S. District Court for the Western District of Wisconsin in February 2009 (Siefert v. Alexander, Opinion and Order (February 17, 2009)). The Kansas court found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The Kentucky court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”

In February 2009, the U.S. District Court for the District of Minnesota upheld the Minnesota version of the solicitation clause because it allows a judicial candidate to personally solicit campaign contributions when speaking to groups of more than 20 persons or by signing a letter and requires a candidate to “take reasonable measures to ensure that the names and responses, or lack thereof, of those solicited will not be disclosed to the candidate . . . .” Wersal v. Sexton (February 4, 2009). The court rejected the plaintiff’s argument that the clause is unconstitutional because recusal is a less restrictive means of preventing bias, noting “the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be an effective method of preventing bias and ensuring justice.”

 

Posted in Canon 4, Canon 5, Judicial Campaigns | 1 Comment »