Category Archives: Campaign contributions

Disqualification based on campaign contributions

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When it adopted a new code of judicial conduct in 2014, the Pennsylvania Supreme Court included a provision (Rule 2.11(A)(4)) requiring a judge to disqualify when:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.  In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial.  There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

Noting that the “2017 judicial election cycle will be only the second time” that Rule 2.11(A)(4) will apply, the Pennsylvania Judicial Conduct Board recently issued a statement of policy regarding disqualification based on campaign contributions to address “a number of questions that have arisen since the rule was adopted.”  The Board explains that its policy provides guidance only, does “not have the force and effect of law,” and is not binding on members of the judiciary or the Board.

The executive summary of the policy states:

  • When faced with a question of recusal or disqualification under Rule 2.11(A)(4), the nature of the inquiry is an objective one involving the public perception of large contributions and their effect on the judge’s ability to be impartial. If the amount of a contribution to a judicial candidate’s campaign raises a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the contributor, disqualification is required.
  • The focus of any inquiry under Rule 2.1(A)(4) is the contributions received by the campaign of a judge whose ability to preside is questioned.
  • There is no amount specified in Rule 2.11(A)(4) over which disqualification is required.
  • Regardless of proportional relationship to other contributions or the total amount raised, large contributions will raise reasonable concerns about the judge’s fairness based on the size alone and will trigger the assessment required under Rule 2.11(A)(4) and the Board will look unfavorably upon a judge’s strained views of the public perception of such large contributions.
  • Disqualification under Rule 2.11(A)(4) is subject to informed waiver by the parties and their attorneys.
  • A contribution of several thousand dollars will almost always require an analysis of whether disqualification is warranted; but such analysis may be avoided if the contribution is disclosed and the parties and their attorneys waive disqualification.
  • Judges are not required to review their campaign finance reports to determine if they are disqualified, but that may be the prudent practice as judges may not remain purposely ignorant of campaign contributions in order to avoid compliance with Rule 2.11(A)(4).
  • While there is no specific look-back period in Rule 2.11(A)(4), the effect of contributions will generally dissipate over time. The larger the contribution, the longer it will take to dissipate.
  • Disqualification is not required under Rule 2.11(A)(4) simply because the amount of a contribution exceeds the amount that must be reported as a gift on the judge’s statement of financial interests.
  • Contributions from several lawyers from the same law firm must be aggregated when conducting the assessment required by Rule 2.11(A)(4).


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Comment 4A to Rule 2.11 of the Arkansas code of judicial conduct provides:

The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge.  However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign and the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge’s impartiality under paragraph (A).

Interpreting that comment, an Arkansas Supreme Court Justice recently denied a motion to disqualify her based on contributions to her 2014 campaign for the Court in which she was unopposed.  Robinson Nursing and Rehabilitation Center v. Phillips (November 10, 2016).  The Court as a whole had referred the motion to the justice “consistent with the principle that the decision to recuse rests in the discretion of the individual judge and with how this court has historically treated similar requests.”

The motion was filed in an appeal in a wrongful death case against a nursing home.  The plaintiffs’ disqualification motion had alleged that Michael Morton, one of the defendants, and nursing homes or other companies that he owns had contributed $40,000 to the justice’s campaign committee in 20 checks of $2,000 each in November 2013 and early 2014, and that that amount constituted 30% of her campaign’s total contributions of $134,700.  The justice noted, however, that the campaign received, in fact, $154,900 total and, as reflected in a campaign financial report, had returned $20,000 to Morton and his companies.  Therefore, the justice stated, the “analysis is whether the $20,000 in contributions the campaign retained in 2014 creates an appearance of impropriety for a case that will be before the court in 2017.”

The justice listed the factors from the comment to the Arkansas code:

  1. the size of contributions;
  2. the degree of involvement in the campaign;
  3. the timing of the campaign and the proceeding;
  4. the issues involved in the proceeding; and
  5. other factors known to the judge.

She concluded, “under the first factor, the accepted contributions are insufficient to warrant disqualification in an unopposed race.”  She also stated, with respect to the second factor, that Morton and his companies had not played any other role in her campaign, such as hosting fund-raisers or coordinating activities with her campaign committee.

Applying factor three, the justice found that “the timing between the campaign and the current proceeding is a sufficient cooling-off period,” noting the committee had received the contributions between fall 2013 and early spring 2014, the matter was unlikely to be submitted to the Court before the spring of 2017, and the complaint had been filed in September 2015, “well after” she had taken the bench.  Under factor four, the justice noted that the plaintiffs did not contend that the issue on appeal (class certification) was an issue that should cause her to recuse.

Discussing factor five, the justice explained:

I note that I have recused from cases involving significant contributions following each of my campaigns over the past eight years until a sufficient cooling-off period passed.  I am treating this case and this contributor no differently.  Additionally, while Arkansas is a small state and there are occasions for judges to intersect with potential counsel and litigants, I assure appellees and their counsel that I do not have a social or business relationship with Michael Morton or any of the businesses the appellees list.

Finally, the justice concluded:

In all, considering these factors and the surrounding circumstances as well as my duty to sit, I find that it would not be proper to recuse from this case.  All judges have a duty to recuse when the situation warrants but we also have an equal duty to sit when the facts do not justify doing otherwise.  Injustice occurs when one makes the wrong decision either way, which is why I certainly did not make this decision lightly.  Injustice also would occur if litigants could manipulate the makeup of the court.

The justice notes that the Arkansas code states in a comment that to “reduce potential disqualification and to avoid the appearance of impropriety, judicial candidates should, as much as possible, not be aware of those who have contributed to the campaign” but that is not a mandatory rule.  Moreover, she explains, “by including campaign contribution specifics in the motion, the [plaintiffs] have made it impossible for me to attempt to abide by the suggested behavior.”

Click here for the Center for Judicial Ethics compilation of state disqualification rules regarding campaign disqualification.

Post Williams-Yulee

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In its April 2015 decision upholding the prohibition on judicial candidates personally soliciting campaign contributions, the U.S. Supreme Court noted that “30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to” Florida’s challenged provision, citing the amicus brief of the American Bar Association.  Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (U.S. 2015).  One of the 9 states without the personal solicitation clause was New Mexico; in 2015, the New Mexico code of judicial conduct stated in a comment “[c]andidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule . . . .”

That changed, however, effective November 1, 2015, after the New Mexico Supreme Court amended the code.  The Court added a provision (Rule 21-402A(2)(c)) that states a judicial candidate shall not “solicit funds for a candidate or a political organization, or make a contribution to a candidate,” deleted the prior comment, and substituted a comment that explains, “candidates for judicial office shall not personally solicit or personally accept campaign contributions.”

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Pursuant to the certification of a U.S. District Court, the Kentucky Supreme Court answered questions regarding 3 rules in the state’s code of judicial conduct that had been challenged in a federal lawsuit.  In re Winter (Kentucky Supreme Court February 18, 2016).  Noting that the federal court had expressed skepticism about the constitutionality of the provisions, the state court concluded that its interpretations fell well within the requirements of the First Amendment based on the analysis of the underinclusive and overbreadth arguments in Williams-Yulee.

The Kentucky Supreme Court held that the rule in the code prohibiting a judge or judicial candidate from campaigning “as a member of a political organization” (Kentucky judicial elections are, by constitution, non-partisan) “prohibits the dissemination of campaign materials and other public representations suggesting to the voters that the candidate is the endorsed judicial nominee of a political party,” while allowing the candidate (pursuant to a previous federal court decision) to simply identify herself as a member of a party.  The Court also stated that the prohibition on a judge or judicial candidate acting “as a leader” or holding “any office in a political organization” meant “occupying a formal position with a recognized title or performing a function within the established organizational structure of an association whose principal purpose is to further the election or appointment of candidates to political office” and “efforts to advance the political agenda of the party in a less formal way through proactive planning, organizing, directing, and controlling of party functions with the goal of achieving success for the political party,” including “acting formally or informally as a party spokesperson; organizing, managing, or recruiting new members; organizing or managing campaigns; fundraising; and performing other roles exerting influence or authority over the rank and file membership albeit without a formal title, including . . . hosting political events.”

Finally, the Court interpreted the prohibition on a judge or judicial candidate “knowingly, or with reckless disregard for the truth, misrepresent[ing] any candidate’s identity, qualifications, present position, or mak[ing] any other false or misleading statements” to include a statement “that is not factually true in the normal sense; that is, an untrue utterance,” but not “expressions of subjective opinions or innocuous campaign-trail ‘puffing’ . . . .”  The Court concluded that the rule prohibited a judge from requesting voters to “re-elect” her to a judicial office when, in fact, she held office by a gubernatorial appointment.

Click here for an analysis of the challenges to code of judicial conduct provisions since the U.S. Supreme Court’s 2002 decision, Republican Party of Minnesota v. White.

Williams-Yulee controls

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Last April, the U.S. Supreme Court, in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions.  (There is a longer, previous post summarizing the case on the blog here.)  Last week, in the first major application of that decision, the U.S. Court of Appeals for the 9th Circuit, sitting en banc, upheld the personal solicitation clause in the Arizona code of judicial conduct and other clauses prohibiting judicial candidates from, for example, making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon (9th Circuit en banc January 27, 2016).

The plaintiff in Wolfson, a former judicial candidate in Arizona, attempted to distinguish Williams-Yulee because, he argued, Florida and Arizona advance different interests in their respective personal solicitation prohibitions.  According to the plaintiff, Florida’s interest was in “public confidence in the integrity and independence of judges.  The integrity and independence of judges depend in turn upon their acting without fear or favor,” quoting Florida’s Canon 1 and commentary.  Arizona’s interest, he argued, was in the public’s perception of “the judge’s honesty, impartiality, temperament, or fitness,” quoting that state’s Rule 1.2 and Comment 5.   “An interest in judicial ‘honesty, impartiality, temperament, or fitness,’” the plaintiff argued, is “different than a concern for ‘fear or favor.’”

However, the 9th Circuit concluded that “is a distinction without a material difference.”

Even if Arizona adopted slightly different language for its articulation of its interest, Arizona is similarly interested in upholding the judiciary’s credibility.  There are no magic words required for a state to invoke an interest in preserving public confidence in the integrity of the state’s sitting judges.

The 9th Circuit also concluded that all of the plaintiff’s arguments about the clauses being overbroad, underinclusive, or not the least restrictive means of advancing the state’s interest were foreclosed by the decision in Williams-Yulee.  For example, the 9th Circuit rejected the plaintiff’s argument that recusal would be the best way to handle impartiality or the appearance of impartiality.

[R]ecusal is no answer at all, and this unworkable alternative was flatly dismissed in Williams-Yulee.  A rule requiring judges to recuse themselves from every case where they endorsed or campaigned for one of the parties could “disable many jurisdictions” and cripple the judiciary. . . .  Four of Arizona’s counties have only one superior court judge and two other counties have only two superior court judges. . . .  Campaigning for frequent litigants would cause an insurmountable burden that other judges and other counties may not be able to bear.  Moreover, an extensive recusal record could cause the same erosion of public confidence in the judiciary that Arizona’s Endorsement Clauses and Campaign Prohibition are trying to prevent.

One judge wrote a concurring opinion to emphasize that the restrictions were supported by the societal interest in maintaining an independent judiciary by preventing judges from becoming political powerbrokers or political pawns.

The campaign and endorsement restrictions respond to a structural need — they restrict judges from engaging in nonjudicial campaigns, to prevent them from being entangled in the legislative and executive political process.  Judges must have the confidence to stand firm against nonjudicial elected officials.  That confidence could give way — or appear to give way — if judges behave just like those elected officials, by engaging in the usual, often contentious and fiercely partisan, political processes

 

Post Williams-Yulee

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Affirming the judgment of the district court denying a motion for a preliminary injunction, the U.S. Court of Appeals for the 6th Circuit held that a judicial candidate’s campaign committee failed to demonstrate a likelihood of success on the merits of its claim that the temporal restrictions on solicitation and receipt of campaign contributions violated its First Amendment free speech rights and the Equal Protection Clause of the 14th Amendment.  O’Toole v. O’Connor (September 21, 2015).  The 6th Circuit relied on the U.S. Supreme Court’s April decision upholding the personal solicitation clause in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).

Post Williams-Yulee

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In April, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions and affirmed the public reprimand of a former judicial candidate for a letter asking for contributions that she had mailed and posted on her campaign web-site.  Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).  In the first post-Williams-Yulee judicial discipline cases involving political conduct, the New York State Commission on Judicial Conduct recently publicly admonished 2 part-time judges for directly and indirectly making contributions to political organizations and candidates.

One of the judges made over 60 political contributions directly (mostly to presidential campaigns, candidates in other states, and national political organizations) and over 30 contributions to local candidates indirectly through his law firm.  The second judge’s law firm bought 71 ticket to politically sponsored dinners and made 37 contributions to political organizations and candidates, and the judge’s wife bought 2 tickets to political functions using their joint bank account.  The type or timing of the contributions, both by the judges and their law firms or spouse, violated the New York rules governing judicial conduct as interpreted in opinions by the Advisory Committee on Judicial Ethics.

The Commission noted that, after the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, “some commentators . . . believed that the Supreme Court had greatly expanded a judge’s right to engage in traditional forms of political activity . . . .”  The decision in Williams-Yulee suggested otherwise and “underscore[ed] that ‘judges are not politicians’ and that judicial elections may be regulated differently from political elections . . . .”  The Commission concluded that, although the judges’ conduct in the current cases was different from that in Williams-Yulee, “it is clearly prohibited by a rule in New York that has not been diminished or weakened by prior precedent.”  It emphasized:  “The Commission is not a court, and it is our role to interpret and apply the ethical rules, not to make broad constitutional pronouncements.”  (The Commission also relied on In the Matter of Raab, 793 N.E.2d 1287 (New York 2003), in which the New York Court of Appeals had rejected a judge’s constitutional challenge to the prohibition on judges’ contributing to political organizations or candidates.)

Although the 2 judges agreed to the sanctions, 2 members of the Commission dissented and argued that the admonishments violated the First Amendment, relying, like the majority, on William-Yulee.  (A third member dissented insofar as one of the sanctions was for contributions to candidates seeking elected office in federal elections.)  The dissent argued:

Rather than read Williams-Yulee as an endorsement of any and all restrictions on political activity by judges and judicial candidates that appear to be “desirable” as a matter of preferred policy, we should respect the Court’s clear message:  that judicial campaign speech and conduct are core First Amendment activity, that a compelling interest must be identified if a narrow rule is to be upheld, that personal solicitation of campaign contributions by judicial candidates is such an interest that cuts to the core of judicial integrity, that strict scrutiny requires analysis of the campaign activity at issue to determine whether the compelling governmental interest (appearance of corruption) legitimately requires restriction of that particular activity, and that the rule restricting judicial speech is the least restrictive available to support the compelling governmental interest at stake.

Particularly because the contributions at issue were to national candidates and political organizations, by a judge’s spouse, or by the law firm of a part-time judge, the dissent criticized the majority’s failure to analyze whether the contributions were inconsistent with and the ban justified by a compelling governmental interest.  For example, the dissent stated that, “[i]f the limitations on political activity by judges are intended to promote public confidence in the judiciary by distancing judges from local politics and avoiding the appearance of ‘buying’ a judgeship, a rule that would prohibit a town justice from contributing to a presidential campaign is clearly too broad . . . .”

Top judicial ethics stories of 2015 – So far

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Same-sex marriage

As same-sex marriage became legal state-by-state through ballot initiative or court decisions, judicial ethics advisory committee, conduct commissions, or other judicial agencies in a few of those states began advising that judges were required to perform same-sex marriages if they performed opposite sex marriages.  Formal, public opinions on such high-profile topics serve as an important resource for and service to judges, ensuring that the entire judiciary is on the same page and explaining to the public the reason for the rule.  That guidance and assistance should proliferate following the U.S. Supreme Court’s decision in June that, for all states, “the Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

For example, after the decision, the Nebraska Judicial Ethics Committee advised that, “If a judge is willing to perform traditional marriages, his or her refusal to perform same-sex marriages would be a manifestation of bias or prejudice based on sexual orientation . . . , even if the judge states that the reason is based on sincerely held religious beliefs or upon a personal belief” and that, “because the U.S. Supreme Court has invalidated prohibitions against same-sex marriage, the refusal to perform such marriages while performing opposite-sex marriages would constitute a refusal to follow the law . . . ,” contrary to the code of judicial conduct.  Nebraska Advisory Opinion 2015-1.

The list so far:

  • The Arizona Judicial Ethics Advisory Committee advised that a judge cannot refuse to perform same-sex marriages if the judge is willing to perform opposite-sex marriages regardless whether the judge refers same-sex couples to another judicial officer, regardless where the judge performs the marriages, and regardless on what principle the judge has declined to perform the marriage. The committee also stated that a judge may choose not to conduct any marriages or to conduct marriages only for friends and relatives.  Arizona Advisory Opinion 2015-1.
  • The Nebraska Judicial Ethics Committee advised that a judge or clerk magistrate may not refuse to perform same-sex marriages notwithstanding a personal or sincerely held religious belief that marriage is between one man and one woman and even if the judge provides a referral to another judge willing to perform a same-sex marriage. The committee also stated that a judge or clerk magistrate may refuse to perform all marriages or choose to perform marriage ceremonies only for close friends and relatives but may not refuse to perform same-sex marriages for close friends or relatives.  Nebraska Advisory Opinion 2015-1.
  • The North Carolina Administrative Office of the Courts advised in a memo that a magistrate who conducts other marriages may not refuse to perform the ceremony for a same-sex couple for whom a marriage license has been issued by the register of deeds, although the legislature subsequently passed a statute allowing magistrates to recuse from performing all marriages.
  • The Washington State Commission on Judicial Conduct admonished a judge who publicly stated that he would not perform same-sex marriages but continued to perform opposite-sex marriages. In re Tabor (October 4, 2013).

 But see New York Advisory Opinion 2011-87 (whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples was primarily a legal question, not a question of ethics).

 Personal solicitation clause

 In a 5-4 vote in April, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition in the code of judicial conduct on judicial candidates personally soliciting campaign contributions.  Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).  In 2002, the Court had held unconstitutional a clause that prohibited judicial candidates from announcing their views on disputed legal and political issues.  Republican Party of Minnesota v. White, 536 U.S. 765 (2002).  Dispelling any concern caused by its holding in White, the Court emphasized in Williams-Yulle:

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.

Thus, the Court concluded that “this is . . . one of the rare cases in which a speech restriction withstands strict scrutiny.”

At the time of the decision, 10 or so states with judicial elections did not have the personal solicitation clause, at least 3 of those because of federal court decisions now invalid under Williams-Yulee.  It is too soon to tell whether those states will revive the clause now that it has the Court’s official approval.  That issue and others will be discussed in a free webinar on “Williams-Yulee v. Florida Bar and the future of the judicial canons” conducted by the National Center for State Courts on July 15 at 11:30 central time.  Click this link to sign up: https://attendee.gotowebinar.com/register/6416083923189859842.  The faculty will be Leslie W. Abramson, Professor of Law, Louis D. Brandeis School of Law, University of Louisville; Matthew Menendez, Counsel, Brennan Center for Justice Democracy Program, New York University School of Law; and Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

A rare case of intolerable risks

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In a 5-4 vote, applying a strict scrutiny analysis, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions in Williams-Yulee v. The Florida Bar.  The Court affirmed the judgment of the Florida Supreme Court publicly reprimanding a former judicial candidate for a letter she had signed asking for contributions to her campaign that was mailed and posted on her campaign web-site.

The Court began with the key principle of its decision:

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.

The Court concluded:  “This is . . . one of the rare cases in which a speech restriction withstands strict scrutiny.”

First, the Court found that the Florida Supreme Court had adopted the personal solicitation clause “to promote the State’s interests in ‘protecting the integrity of the judiciary’ and ‘maintaining the public’s confidence in an impartial judiciary.’”  Next, the Court held that the state’s interest in preserving public confidence in judicial integrity was compelling.  Particularly “because most donors are lawyers and litigants who may appear before the judge,” the Court noted that, “in the eyes of the public, a judge’s personal solicitation could” tempt the judge “even unknowingly” to repays the contribution.  The Court held:  “A State’s decision to elect its judges does not require it to tolerate these risks.”

There is a longer summary of the decision in the section on the personal solicitation clause in “Case-law Following Republican Party of Minnesota v. White.”

There are several differences between the analysis of the 5-4 majority in Williams-Yulee upholding the judicial campaign restriction and the analysis of the 5-4 majority in Republican Party of Minnesota v. White in 2002 overturning a judicial campaign restriction prohibiting judges and candidates from announcing their views on legal and political issues.

One of the disconcerting aspects of the decision in White was its suggestion that the Minnesota Supreme Court had adopted the announce clause not to promote judicial integrity, as the state court claimed, but to undermine judicial elections.  Justice Scalia, in his majority opinion in White, stated that it was hard to believe – “a challenge to the credulous”– that the clause had been adopted “as a means of pursuing the objective of open-mindedness that respondents now articulate. . . .”  He reiterates that skepticism about the motives and sincerity of state supreme courts in his dissent in Williams-Yulee, stating that the scope of the clause “suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning.”

In contrast, Chief Justice Roberts in the majority opinion in Williams-Yulee is very respectful of the positions not only of the Florida Supreme Court, but of the 30 state supreme courts that have adopted a version of the personal solicitation clause.  The majority does not question that protecting judicial integrity is, in fact, the purpose of the clause and relies on the conclusions of the state courts as evidence that the interest is compelling.  For example, the majority states, “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”  The majority also concludes that any flaws in the canon are not, as the dissent suggests, evidence of pretext, but “accommodations [that] reflect Florida’s effort to respect the First Amendment interests of candidates and their contributors—to resolve the ‘fundamental tension between the ideal character of the judicial office and the real world of electoral politics.’”

White held that the announce clause was simultaneously not narrow enough (because it applied to issues as well parties) and too narrow (underinclusive because it did not apply to candidates’ speech before they became judicial candidates or after they became judges).  The opinion in Williams-Yulee does not have that inherent contradiction.

The majority stated that the canon must be narrowly tailored, not “’perfectly tailored’” and that states do not have to address “evils [only] in their most acute form.”  The Court emphasized that the “considered judgments” of “most States with elected judges . . . deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who ‘sit as their judges.’”

The Williams-Yulee Court also rejected the candidate’s argument that the personal solicitation clause was unconstitutionally underinclusive and acknowledged “a State need not address all aspects of a problem in one fell swoop” but may focus on its most pressing concerns.  The Court concluded that “the solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary:  personal requests for money by judges and judicial candidates.”

Recent news

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The California Supreme Court revised the prohibition on membership in organizations that practice invidious discrimination (Canon 2C) to eliminate the exceptions for official military organizations of the U.S. and non-profit youth organizations.

The New Jersey Supreme Court held that two judges violated the code of judicial conduct by socializing in public with a defendant who awaited trial on criminal charges, but the Court did not impose a sanction because it modified the appearance of impropriety standard in its decision to make it objective.

The transcript for the oral argument before the U.S. Supreme Court on the First Amendment challenge to the canon prohibiting personal solicitation of campaign contributions is on-line.

 

 

Compelling interests

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One of the top judicial ethics stories of 2015 will be the U.S. Supreme Court decision on the question, “Does a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violate the First Amendment?” That challenge to the personal solicitation clause comes in a bar discipline case in which the Florida Supreme Court reprimanded an unsuccessful judicial candidate who had signed a letter soliciting campaign contributions during her campaign. Florida Bar v. Williams-Yulee, 138 So. 3d 379 (Florida 2014). The state court rejected the constitutional challenge, concluding the prohibition is narrowly tailored to effectuate “the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary . . . .” The court noted that other state supreme courts have also upheld the prohibition while “federal courts that have considered this issue—whose judges have lifetime appointments and thus do not have to engage in fundraising—are split.” (For more information, see the Center for Judicial Ethics compilation on caselaw following White.)

The reprimanded attorney filed a petition for writ of certiorari, which the Florida Bar supported, and the U.S. Supreme Court granted review.

The last time the U.S. Supreme Court spoke on the constitutionality of a canon in the code of judicial conduct was in 2002, when it held unconstitutional a clause that prohibited judicial candidates from announcing their views on disputed legal and political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). That 5-4 decision left numerous questions unanswered – including the core question whether judicial elections can be different from other elections – and resulted in numerous other challenges. (In the interim, the Court decided, in 2009, that, when campaign contributions from the principal of one of the parties “had a significant and disproportionate influence” on the election of a justice, the risk of actual bias was “sufficiently substantial” to require disqualification under the Due Process Clause of the U.S. Constitution. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).)

23 states have the personal solicitation clause, which is also in the ABA Model Code of Judicial Conduct. (8 states have a narrower version of the prohibition; 11 states that have judicial elections do not prohibit personal solicitation of campaign contributions by judicial candidates; 8 states have no judicial elections.)

Numerous amicus briefs have been filed in the case.  The American Civil Liberties Union, several former judicial candidates who challenged the clause in other states, and the Thomas Jefferson Center for Free Expression have filed amicus briefs in opposition to the canon. Amicus briefs have been filed in support of the canon by  the Conference of Chief Justices, the attorney generals from 11 other states that have the prohibition, the American Bar Association, 3 former chief justices of the Florida Supreme Court and 9 active members of The Florida Bar, 4 former justices of the Texas and Alabama Supreme Courts (2 states that do not have the prohibition), the Brennan Center and Justice at Stake, and numerous other organizations and individuals.

Oral argument on the challenge to the personal solicitation clause is set for January 20.

Disqualification reform

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Last week, the New York University Journal of Legislation and Public Policy, the Brennan Center for Justice, and the American Bar Association’s Center for Professional Responsibility jointly hosted a symposium entitled “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.”  There were many interesting discussions about the disqualification challenges facing state courts following not only Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), but alsoCitizens United v. FEC, 558 U.S. 310 (2010).

However, there was little discussion about what reforms states have recently undertaken to their disqualification procedures and standards.

As several speakers mentioned, in August 2014, the American Bar Association House of Delegates did adopt a resolution urging states to adopt judicial disqualification and recusal procedures that “(1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge” and “to provide guidance and training to judges in deciding disqualification/recusal motions.”

The Conference of Chief Justices supported the resolution.

The Center for Judicial Ethics has been keeping track of code and rule revisions related to judicial disqualification based on campaign contributions in a document currently kept on the “learn more about judicial ethics” page of www.ajs.org (but soon to move to the http://www.ncsc.org). It notes that five states have adopted disqualification rules for campaign contributions based on a specific amount or percentage, while 10 state supreme courts have adopted new disqualification rules that do not have specific triggers, but that expressly or impliedly incorporate the decision in Caperton, often by listing factors a judge should consider when faced with a disqualification question based on campaign contributions. For example, it notes that, effective July 1, 2014, the Pennsylvania Supreme Court adopted a new code that includes a Rule 2.11A(4) requiring disqualification when:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.  In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution . . . is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

The Center will continue to follow state reforms, both on disqualification standards and procedures in general and on rules related to campaign contributions specifically.  Follow this blog to keep up to date.