Today, six judicial candidates joined the James Madison Center for Free Speech in filing an amicus brief asking the United States Supreme Court to strike down Florida's personal solicitation ban, citing the First Amendment's political speech protections as grounds.
Last month, the United States Supreme Court agreed to review a Florida Supreme Court decision that upheld Florida's personal solicitation clause. The clause prohibits judicial candidates from making any personal solicitations for their campaigns, forcing them to instead appoint a committee to make the requests for them instead. A Florida judicial candidate, Ms. Lanell Williams-Yulee, signed a fundraising letter to be sent to potential donors. When charged with violating the personal solicitation clause, Ms. Yulee asserted her free speech rights as a defense. But the Florida Supreme Court held that the personal solicitation clause, which includes all solicitations, including signing letters, was constitutional under the First Amendment and so subjected Ms. Yulee to public reprimand.
This is not the first case to raise First Amendment concerns about the personal solicitation clause. All of the candidate amici from today's filing have challenged their respective state's personal solicitation clause, with varied success. In Arizona, Randolph Wolfson has run for Justice of the Peace and Superior Court judge and currently is challenging that state's personal solicitation clause. In Indiana, Judge David Certo, a Marion County Superior Court judge, unsuccessfully challenged that state's personal solicitation clause. In Wisconsin, Judge John Siefert, who serves as Milwaukee County Circuit judge, was also unsuccessful in striking down that state's personal solicitation clause.
Indeed, Judge Eric Yost, a district court judge in Kansas' Sedgwick County, is the only judge to have successfully challenged a personal solicitation clause. Marcus Carey, who has run for Kentucky Supreme Court as well as a trial court judgeship, also has successfully struck down that Commonwealth's personal solicitation clause. But Gregory Wersal, who has run for Minnesota Supreme Court several times and who successfully challenged not only a prior version of Minnesota's personal solicitation clause but also that state's announce clause in Republican Party of Minnesota v. White, 536 U.S. 765 (2000), was unsuccessful in challenging a new version of the personal solicitation clause, which still impeded his ability to seek funds from potential donors.
“The decisions in these lawsuits have inconsistent applications of the law with different outcomes for different types of judicial candidates,” says James Bopp, Jr., who represented all of these candidates in their lawsuits and now serves as counsel of record on today's brief. “Some courts have made distinctions between nonjudge and judge candidates, others apply different standards of review or have come up with a whole host of novel justifications that supposedly support a sweeping ban. It's time the United States Supreme Court intervenes.”
Bopp acknowledges, “It makes sense to prohibit judges from asking for money from the bench or even in the building where they work. And certainly, parties and their attorneys should not be approached during their cases for campaign money from their judges–a real risk of bias and a threat to due process exist in these circumstances.” “But,” he says, “to ban all in-person solicitations, even asking one's own mother or signing a generic letter, is not only irrelevant to due process concerns, it severely restricts protected political speech. And ironically, all that the ban does is give litigants a false sense that judges are impartial because their committees asked for money when a judge can know who was asked, what they said, and how much was given. Litigants are better off knowing about such possible bias and seeking recusal when appropriate. Banning all personal solicitations is unconstitutional.”
The case is Williams-Yulee v. Florida State Bar. A copy of the amicus brief can be can be found here.
James Bopp, Jr. has a national constitutional law practice with The Bopp Law Firm, PC, www.bopplaw.com , and is General Counsel for the James Madison Center for Free Speech.