Supreme Court: Can Florida bar judicial candidates from soliciting funds?

The US Supreme Court on Thursday agreed to examine the constitutionality of a state bar association’s prohibition on judicial candidates personally soliciting campaign contributions.

A former candidate for county judge in Florida is challenging the rule, arguing that the prohibition violates free speech protections of the First Amendment.

The high court accepted the case without further comment.

It is potentially a major test of efforts by professional lawyers’ associations to impose ethical requirements and other restrictions to uphold the integrity of the courts in the face of the escalating role of money in judicial elections. It is also a major test of the high court’s increasingly aggressive protection of free speech rights in the face of content-based restrictions on political speech.

The case stems from a letter sent by Lanell Williams-Yulee in September 2009 announcing her candidacy to become a Hillsborough County judge and asking for financial contributions.

"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,” the mass-mail letter said in part.

The Florida Bar filed a complaint against Ms. Williams-Yulee, alleging a violation of Canon 7C of the Florida Code of Judicial Conduct.

The rule says in part that judicial candidates “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support.”

The provision permits a judicial candidate to establish a campaign committee “to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.”

Florida is among 39 states that require judges to run for election or retention in office. Nearly all such states have adopted rules that bar judicial candidates from becoming personally involved in soliciting campaign contributions.

The rules are intended to uphold the integrity of the state’s judicial system and to uphold public confidence in an impartial judiciary.

That hasn’t stopped some candidates from filing First Amendment challenges to the imposition of such campaign restrictions. The courts are divided over the proper outcome in such cases.

Both the Third and Seventh US Circuit Courts of Appeals have upheld such rules of campaign conduct, as have the supreme courts of Florida, Oregon, and Arkansas.

In contrast, federal appeals courts representing the Sixth, Eighth, Ninth, and Eleventh circuits have ruled that such restrictions violate free speech protections.

Williams-Yulee’s case was submitted to a referee. She argued that she thought the ‘no personal solicitation’ rule only applied in contested elections – and that at the time her letter was written, there were no other candidates in her race.

The referee noted that there was no indication that Williams-Yulee acted dishonestly, and that when confronted by the Florida Bar she provided full and accurate disclosure of her conduct.

The referee ultimately concluded that Williams-Yulee violated the rule. She was subject to a public reprimand and ordered to pay the Florida Bar’s costs – $1,860.

Williams-Yulee appealed to the Florida Supreme Court, but lost in a 5-to-2 decision.

In bringing the case to the US Supreme Court, lawyers for Williams-Yulee are asking the justices to resolve the split among the lower courts.

“There is little doubt that the Florida Supreme Court’s decision in this case [upholding the restriction] is wrong,” Washington appellate lawyer Michael Kimberly wrote in his petition.

“Canon 7C(1) is a content- and speaker-based restriction on political speech; such laws rarely survive strict judicial scrutiny, and this one should not,” he wrote.

A lawyer for the Florida Bar argued in his brief that the Florida Supreme Court had reached the correct result in upholding the rule of judicial conduct. Nonetheless, he urged the high court to take up the case and resolve the split among the lower courts.

The case raises fundamental issues involving “the proper balance between two compelling interests at the heart of a free and just society,” Barry Richard of Tallahassee wrote in the Florida Bar brief.

“The manner in which that balance is struck should be applied uniformly to all citizens in all places and before all tribunals,” Mr. Richard said.

The case is Lanell Williams-Yulee v. The Florida Bar (13-1499). It will likely be set for argument early next year and decided by late June.