WASHINGTON – The U.S. Supreme Court last week upheld a Florida rule prohibiting judges and judicial candidates from personally soliciting campaign contributions.
A West Virginia University law professor argues that while the decision is a good one, the state's current system of electing judges is less than ideal.
The only way to eliminate possible outside influences, professor Kendra Fershee contends, is to do away with judicial elections and move toward an appointment-based system.
Fershee’s expertise is in professional legal ethics. She teaches a course on professional responsibility, among others.
“(Williams-Yulee v. The Florida Bar) attempts to maintain a firewall between judges and donors, and attempts to maintain some level of ethical clarity,” she said.
“But really, as long as we have judicial elections, this system is going to be very imperfect.”
In Williams-Yulee, the petitioner, Lanell Williams-Yulee, signed a letter seeking campaign contributions in her unsuccessful 2009 run for Hillsborough County judge.
The Florida Supreme Court found this to be a violation of Canon 7C(1) of the Florida Code of Judicial Conduct, which states that a candidate “for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.”
Williams-Yulee challenged the reprimand, alleging that Canon 7C(1) infringed on her constitutionally-protected right to free speech.
The state Supreme Court rejected that argument, “hold[ing] that the Canon is constitutional because it promotes the state’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests.”
Williams-Yulee was publicly reprimanded and made to pay nearly $2,000 in court costs.
Chief Justice John Roberts, who wrote the controlling opinion in the case, said it was not the high court’s place to resolve the “enduring debate.”
“Our limited task is to apply the Constitution to the question presented in this case,” he noted.
“Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the state adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict.”
Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Roberts in the majority.
Fershee said the ruling is an interesting one, especially in light of the court’s ruling, in 2009, in Caperton v. A.T. Massey Coal Co.
In that decision, the court held that the due process clause of the Fourteenth Amendment requires a judge to recuse himself or herself not only when actual bias has been demonstrated or when the judge has an economic interest in the outcome of the case, but also when “extreme facts” create a “probability of bias.”
That U.S. Supreme Court ruling centered around former Massey Energy CEO Don Blankenship, who spent $3 million in a statewide ad campaign to defeat then-West Virginia Supreme Court Justice Warren McGraw, whom current Justice Brent Benjamin was challenging.
Benjamin, after being elected, failed to recuse himself from Massey despite Blankenship’s money spent during the 2004 election to get McGraw off the bench.
The nation’s high court said that Benjamin’s failure to recuse himself from the case created “a serious, objective risk of actual bias.”
“So, now you have a decision that says, as a judge, you’re not allowed to make direct solicitations,” Fershee said, noting that West Virginia has a similar rule in place, as do many states. “But, at the same time, Massey says that while, yes, you’re raising money to be elected to office – and that happens when you have judicial elections – that insulating factor needs to be there.
“So, even though you don’t know who is giving you money – and the way most systems are set up, there’s an intermediary or a third party that solicits the money – Massey says if that money gets too big, a judge should know or should find out, and should recuse himself or herself because he or she could be influenced.
“That’s what happens when you elect judges. You create these challenges.”
Fershee said judges are in a bind in some ways.
“They have to raise money in order to market themselves and pay for campaign advertising and such,” she explained. “But they have to do it in a way that allows them to be insulated from influence.”
A good example, she said, is the case of Robin Jean Davis, justice on the West Virginia Supreme Court of Appeals.
In February, attorneys for skilled nursing chain Manor Care asked for Davis to be disqualified from hearing a petition for writ of prohibition in an ongoing case against a former Manor Care-affiliated nursing home filed on behalf of the estate of Sharon Hanna, following a news report linking the justice to the plaintiff’s counsel.
In December, ABC News reported that plaintiff’s counsel in another nursing home matter, Michael Fuller of the McHugh Fuller Law Group from Hattiesburg, Miss., had purchased a Learjet from the Charleston-based Segal Law Firm, owned by Davis’ husband Scott Segal, for more than $1 million in 2011.
The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.
Last year, Davis authored the majority opinion in the Douglas case, upholding a jury verdict in favor of Fuller’s client, Tom Douglas, who alleged severe neglect led to the death of his 87-year-old mother, Dorothy.
The ruling did, however, cut the punitive damages award from $80 million to nearly $32 million.
Davis has refused to recuse herself from the Hanna case.
Last month, former West Virginia gubernatorial candidate Bill Maloney filed a Judicial Investigation Commission complaint regarding Davis, Segal and Fuller.
“Justice Davis said she didn’t know she received any money from these people, that she doesn’t have access to that and that she doesn’t look at the list of who gives money to her campaign,” Fershee said. “The problem is, with Massey, judges have to find out at some point, so they can recuse themselves if the money gets to be too much.”
While Williams-Yulee doesn’t change much in West Virginia, the law professor said that’s no reason for the state to “get comfortable.”
“I think some people in West Virginia will probably say, OK, that’s what we do, so we’re safe. We’re following what the U.S. Supreme Court dictates.
“When, really, Massey shows us it’s not that simple.”
Not to mention what the ruling means for First Amendment rights, Fershee said.
“This decision is a big deal because the court is willing to impinge on First Amendment rights to keep the ethics of judicial elections on the highest level,” she said. “That says a lot. Here, in the United States, we are very careful about telling people what they can and cannot say unless we have a really compelling reason to do so.”
She continued, “My big concern is that (Williams-Yulee) will make people in West Virginia feel better (about judicial elections), and I think there is a bigger issue here.”
Though the best way to fix the problem would be to appoint all state judges to 10-year terms, Fershee admitted she doesn’t see that happening “any time soon.”
“States, West Virginia included, are unwilling to change the system right now, so this is where we are,” she said.