Judges are not politicians.
That’s the main point of the 5-4 majority opinion from the U.S. Supreme Court in Williams-Yulee v. Florida Bar that upheld the state’s prohibition of judges personally raising money to campaign for a seat on the bench.
Chief Justice John Roberts, delivering the majority opinion last week, wrote that when it comes to judges, First Amendment rights do not apply to asking for campaign contributions.
“A State may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money,” Roberts wrote.
Attorney Lanell Williams-Yulee in 2009 ran for a Hillsborough County judgeship. As part of her campaign, she signed a letter that was posted on her website and distributed via a mass mailing that asked for contributions needed to launch the campaign.
Yulee was defeated in the primary election and then The Florida Bar said the letter violated Canon 7C(1) of the Florida Code of Judicial Conduct, which bans direct solicitations.
However, the rule allows state judicial candidates and incumbents to organize committees to raise funds, to direct the committees toward potential donors, see who gave money and send “thank-you” notes to contributors.
After she was reprimanded and fined, Yulee filed suit against the Florida Bar, contending the state’s prohibition violated her First Amendment right of free speech.
The state Supreme Court ruled that personal solicitation of campaign funds by a judicial candidate “raises an appearance of impropriety and calls into question, in the public’s mind, the judge’s impartiality.”
In a decision last week, the court affirmed the action of the Bar and its confirmation by the Florida Supreme Court.
Roberts quoted from a 1990 decision by the Oregon Supreme Court that affirmed the possible perception of judicial candidates personally accepting money from supporters:
“The spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary.”
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan joined all of Roberts’ opinion, and Justice Ruth Bader Ginsburg most of it.
In dissent, Justice Antonin Scalia wrote that the first axiom of the First Amendment is that as a general rule, the state has no power to ban speech on the basis of its content.
“One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate’s request for a campaign contribution,” wrote Scalia. “The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.”
Local judges asked to comment for this story declined, other than to point out the court’s decision is consistent with maintaining an independent and impartial judiciary.
A local attorney who has raised funds for presidential, gubernatorial and state cabinet post campaigns, as well judicial candidates, said the prohibition actually can be an advantage.
“Raising money for bench candidates is not as challenging as for other types of races,” said Tom Bishop, partner at Tanner Bishop. “People want to support who they feel will be good judges.”
Bishop was campaign treasurer for Circuit Judge Michael Sharrit, who was elected to the court in 2014.
“Not having him go out and raise funds was not a problem. People were calling me,” said Bishop.
On the point of whether sitting judges and their election opponents are “politicians,” Bishop said he thinks judicial candidates are unique among elected officials, even though they are chosen by ballot.
And perception is everything.
“They are seen as having integrity and not subject to the whims of politics and influence,” he said.
“We are concerned that the judiciary has integrity,” Bishop added. “But it also must be seen as having integrity.”
@DRMaxDowntown
(904) 356-2466