Judicial Impartiality in the Age of Elected Judges


Courtesy of floridapolitics.com

By Terrence Neal.

In recent times, there has been uncertainty with regards to the impartiality of judges who are chosen by judicial elections, which take place in 39 states. Elections are inherently compromising, and in acting like politicians, judges lose their perceived credibility as neutral authorities. Additionally, since the Supreme Court’s ruling on Citizens United, PACs and Super PACs are increasingly pumping money into judicial campaigns and influencing election outcomes.

To help combat money’s influence on a judge’s impartiality and the appearance of corruption, the state of Florida instituted Canon 7 of the Florida Code of Judicial Conduct, which states that competing candidates shall not personally solicit campaign funds or solicit attorneys for publicly stated support.

However, Lanell Williams-Yulee, a 2009 candidate for County Court Judge in Hillsborough County, Florida, is challenging the constitutionality of restrictions like Florida’s Canon 7. She signed and sent out a mass-mail campaign fundraising letter in which she announced her candidacy and requested campaign contributions. As a result, The Florida Bar filed a complaint against Williams-Yulee alleging that the candidate’s actions violated the Code of Judicial Conduct.

Williams-Yulee took her case to the Supreme Court last June—after being fined and losing a challenge in the Florida Supreme Court—raising one issue: “Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.” 

Williams-Yulee argues that Canon 7C(1) is unconstitutional and burdens free speech because solicitation “is characteristically intertwined with informative and persuasive speech seeking support for particular causes or particular views” (Village of Schaumburg v. Citizens for a Better Environment, 1980). Additionally, since the canon restricts speech it must be judged by a form of judicial review known as strict scrutiny. Strict scrutiny requires a law to be narrowly tailored to meet a compelling state interest, and Williams-Yulee doesn’t believe Canon 7 does that.

The Florida Bar disagrees and claims that Florida has a compelling interest in ensuring public confidence in the fairness and integrity of elected judges. The legitimacy of the judicial branch ultimately depends on its reputation for impartiality and nonpartisanship; direct solicitation and large contributions can undermine legitimacy by producing the appearance of corruption. Nevertheless, the petitioner feels that preventing corruption cannot be justified as a compelling state interest because the canon does not apply to all elected officials, whose integrity is equally important.

The Florida Bar also claims that the canon meets the requirement of being narrowly tailored because it places no restrictions on the ability of judicial candidates and their supporters to engage in free expression. The restriction on a judicial candidate’s personal solicitation of campaign funds also places a minimal burden on the candidate’s ability to raise money, since Canon 7 permits an independent committee of the candidate’s supporters to raise money on behalf of the candidate. Williams-Yulee counters by arguing that the law does not achieve its interest of preventing corruption because as long as a candidate has access to the names of donors and the amount of money donated, the potential for bias will exist.

The Court is expected to issue a final decision in the case sometime this spring, before the Term ends in late June.

At stake here is the public’s confidence in the U.S. judicial system. Allowing judges to directly solicit money could create negative pressures on judicial candidates and lead citizens to question their integrity. This is especially true for incumbent candidates, who have the power to make case rulings, which could garner or discourage support from donors. This reasoning is supported by a study completed by the American Constitution Society for Law and Policy, which finds that “the more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”  

Ultimately, any action that could destabilize the appearance of judicial impartiality is unacceptable, for a fair trial in a fair tribunal is a basic requirement of due process. Thus, the Supreme Court ought to uphold the constitutionality of bans on direct solicitation, like Florida’s Canon 7. Moreover, it is of utmost importance that lawmakers take steps to put new rules in place to reign in the growing influence of campaign contributions on judicial decisions.

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