Former Florida Chief Justice Harry Lee Anstead is worried about the courts falling into the same level of disrepute as the other two branches of government.
Anstead is closely watching a challenge by a former Hillsborough County judicial candidate to restrictions on campaign fundraising activities. The U.S. Supreme Court will hear arguments in the case Tuesday.
Lanell Williams-Yulee was reprimanded by the Florida Supreme Court for violating a rule barring judicial candidates from directly soliciting campaign contributions. When running for judgeships, candidates are required to employe a “committee of responsible persons” to raise campaign funds.
Yulee ran afoul of the requirement when she signed a mass-mailed letter in 2009 asking supporters to contribute to her ultimately unsuccessful campaign for a county court judgeship.
She appealed her case to the U.S. Supreme Court on the grounds the rule violates her First Amendment rights. In the words of her lawyers’ brief before the high court, the rule “infringes core First Amendment interests — prohibiting an essential category of speech by candidates for elective judicial office.”
But to Anstead, the core interest at stake is the courts’ commitment to fairness and impartiality and the public perception that that commitment exists.
“We’re fooling ourselves if we think we don’t need at least some restrictions to protect this commitment of impartiality,” Anstead said. If the rule is struck down, he said, he fears that the independence of the judiciary will be “dramatically eroded.”
The case has drawn attention from across the United States. Many judiciary advocates, such as Anstead, are alarmed, fearing that if the nation’s highest court rules for Yulee, it could signal an erosion in the public confidence in the courts.
But some free speech champions maintain that the rule, which is similar to restrictions in dozens of states with judicial elections, illegally restricts judicial candidates’ rights.
Among those siding with Yulee and filing friend-of-the-court briefs in her defense are the American Civil Liberties Union and a collection of judges and former judicial candidates from states including Arizona, Minnesota, Wisconsin and Kentucky, some of whom have similar challenges with outcomes dependent on what happens with Yulee.
“The government cannot justify judicial campaign speech regulations as efforts to protect judicial independence and public confidence,” says the brief filed by the James Madison Center for Free Speech on behalf of those other judges and candidates. “Such an interest is already served through the judicial system itself, which directs judges to follow existing law, allows them to make new law, and ensures these principles are adhered to through judicial elections... First Amendment rights cannot be subverted simply to accommodate the ever-changing views of the public.”
To Anstead, the rule is not designed to address some abstract fear; it was born as part of a package of reforms enacted in Florida following a series of corruption scandals that rocked the court system in the 1970s, leading to the resignation of four of seven Supreme Court justices under a cloud.
Anstead, joined by former Florida chief justices Major B. Harding and Stephen Grimes, was represented by Fort Lauderdale lawyer Daniel Wallach in a friend-of-the-court brief siding with the the Florida Bar, which presented the case against Yulee and is defending the rule. Also signing on to that brief are several high-profile lawyers, including past presidents and officials with the state bar.
The brief says that invalidating the rule in question, known as Canon 7C(1) “would be especially disastrous for Florida, which is just one generation removed from some of the worst judicial corruption scandals in our state’s history.”
In the culmination of those scandals, two Supreme Court justices were faced with impeachment for trying to fix cases and other transgressions. Another justice was filmed on a gambling junket to Las Vegas paid for by the owner of a greyhound track with a case before the court. Other justices, the brief says, were lobbied by a lawyer representing utilities. The justices allowed the lawyer to ghost write an opinion for the state’s highest court.
In the aftermath of these scandals and others, the Florida Constitution was amended in 1976 to eliminate the direct election of appellate judges, creating the current system of merit selection and retention. In that process, appellate judges are recommended by committees and then appointed by the governor. At the end of their terms, they are placed on the election ballot without opposition. The public votes whether they should be retained in office.
Also in 1976, the state Supreme Court created what is now known as the Judicial Ethics Advisory Committee, which recommends changes to the Code of Judicial Conduct.
These, and other reforms, the brief says, “have restored public confidence in an impartial judiciary.”
But Anstead said some of the reforms have already been eroded. The committees that recommend judicial appointment to the governor used to be made up of a mix of members recommended by the state bar, as well as the governor, in addition to members selected by other members of the committees.
Initially, the governor’s direct appointments to those committees were in the minority. But, he said, Gov. Jeb Bush persuaded the Legislature to change that to allow the governor to appoint the majority of the members.
“It has now ended up that the governor has the authority to appoint (all) members of the commission,” Anstead said. “It is sort of a charade now.”
Trial court judges are elected in non-partisan races. When openings happen before a judicial term is up, the vacancies are filled by the merit selection process. When those judges’ terms end, they stand for election.
Anstead says he favors extending the merit selection and retention process to all trial court judgeships, eliminating popular elections, which he said “just do not fit for the selection of judges.”
Most of the public, he said, “have no idea” how to select qualified judges, who are not supposed to say how they’d decide cases, unlike legislators, who are supposed to campaign on what they plan to do.
“I think that we’re living in a time where the other public officials that have been elected are held in the lowest esteem that I have seen in my lifetime,” Anstead said. “And I believe that the major cause of it is because of the influence of money that people see,” which is perceived as the buying of access and influence. This, he added, is “the very opposite role of the judicial branch.”
The rule in question in the Yulee case, he said, is small, and still leaves room for judges to raise virtually unlimited sums of money.
“It’s the appearance, the appearance, of integrity and ethical conduct and the appearance of impartiality and the appearance of the role of the judge in the system,” Anstead said, “and how that contrasts with the image of an arm and a hand extending from it in a robed sleeve - the sleeve of a judge’s robe and that hand extending out and taking money from a donor and perhaps even shaking hands and accepting that.”
The ACLU, in its brief, said it takes no position on whether judges should be elected or appointed. However, the organization “strongly believes that if a state does provide for popular election of judges, campaign speech by candidates for judicial office, like campaign speech by candidates for other offices, is entitled to the highest degree of First Amendment protection.”
The ACLU also argued that the rule is “a poor instrument” for accomplishing the goal of preserving judicial independence and integrity because it bars relatively innocuous actions, like Yulee’s mass mailing, while allowing judges to know who has contributed to their campaigns and who has refused to contribute.
The Yulee case was the subject of a panel presentation last week at the National Press Club in Washington, D.C., hosted by the American Constitution Society, The Brennan Center for Justice, and Justice at Stake. During that briefing, Tracey George , professor of Law at Vanderbilt University cited research that found correlations between judicial campaign contributions and how judges decide cases.
“It’s not merely the fact of donations, it’s the amount of money that matters,” George said. “So if two donors face off, research has shown that the donor who contributed more to the judge’s campaign would be more likely to succeed.”
Another participant, Scott Greytak from Justice at Stake, said the Yulee case is important “because it’s a good reflection of this new judicial culture... where judges are being forced to raise vastly more money than ever before, which is in turn becoming somewhat of an arms race between these judicial candidates. When these candidates become elected, they find themselves often times trapped in a culture that perpetually challenges their ability to be fair and impartial.”