Justices could increase big-money hold on state courts

WASHINGTON (PAI) – State courts decide nearly all legal issues.  They determine job security, the meaning of contracts, worker compensation for on-the-job injuries, and most other legal issues.

For instance, just this past October, the Louisiana Supreme Court upheld a state law gutting tenure for public-school teachers.  A few weeks later, the Indiana Supreme Court upheld a state so-called “right-to-work” law, barring unions from collecting fair-share fees from nonmembers.  Both decisions came under state law. Federal courts cannot override state-court interpretations of state law.

Federal judges get appointed by the president and confirmed by the Senate. But 39 states choose judges by popular election.  As a result, voters elect 85 percent of all state-court judges.  And in recent years, conservative interest groups have flooded judicial campaigns with ads designed to tilt state courts to the right.

It’s worked. Most voters know little about judicial candidates. Money influences judicial campaigns far more than it does campaigns for Congress.

And so recent reports found a significant correlation between the sources of campaign cash and favorable rulings by state supreme courts. In West Virginia, after a $3 million campaign contribution from the Massey Coal Company CEO helped oust a judge supported by the United Mine Workers, the company-backed candidate ruled for Massey in a pending case.

It could get worse.  Judicial campaigns get most contributions from lawyers and parties likely to appear in court.  Because corporations appear in court with far more regularity than do working people, corporations have a far greater incentive to spend money on judicial campaigns.

So to preserve the appearance of an impartial judiciary, 30 states prohibit judicial candidates from personally soliciting campaign contributions. In those states, judicial candidates can solicit contributions only through campaign committees.

Now, in a case that could increase the influence of big money on state courts, an unsuccessful Florida judicial candidate challenged one of these bans on free-speech grounds.

In 2009, Lanell Williams-Yulee launched her campaign for a Florida county court by a personal mass-mailed fund-raising letter.  The letter raised no funds and Williams-Yulee lost the election.  But since her letter constituted direct solicitation, the Florida Bar disciplined Williams-Yulee for professional misconduct.  She sued, claiming the ban violates the 1st  Amendment to the U.S. Constitution.

She lost in the Florida Supreme Court.  That court reasoned that if judicial candidates personally solicited campaign contributions, the public would suspect that, once elected, the judge’s rulings would deliberately favor campaign contributors.  Last month, the U.S. Supreme Court heard Williams-Yulee’s appeal.

There, Florida Bar attorney Barry Richard asked the Justices to balance the imposition on 1st Amendment values against the substantial state interest in the assurance and appearance of impartial justice. Richard called requiring candidates to appeal for funds through a campaign committee, rather than personally, “an extremely minimal imposition” on freedom of expression.

Justice Stephen Breyer agreed, calling the interference “small.”  But Chief Justice John Roberts insisted that banning any fund-raising approach greatly advantages incumbents.  Even Justice Sonia Sotomayor noted that, across the country, candidates who make direct fund-raising appeals raise much more than do those who raise funds only by committee.

The justices also clashed on the ban’s effectiveness.  Justice Samuel Alito noted that, under Florida law, judicial candidates can give their committees a list of potential contributors.  The committees can tell potential contributors the candidate gave the committee their names.  Candidates can learn who contributed, and even send them thank-you notes.

But Justice Breyer found a significant difference between “please” and “thank you.”  He called a thank-you note “a form of politeness” that does not pressure the recipient to contribute.  Justice Sotomayor noted how easy it is to disregard fund-raising appeals from campaign committees.  But lawyers cannot so easily reject requests directly from a judge, Justice Breyer added.

Chief Justice Roberts retorted the Florida ban doesn’t apply only to solicitations directed to lawyers.  It also bars direct appeals to those – like college classmates – who have no chance of appearing in court before the candidate.  Florida made its “fundamental choice,”
said the chief justice, when it decided “we’re going to have judges elected.”

As in other close U.S. Supreme Court cases, Justice Anthony Kennedy could cast the deciding vote. Justice Kennedy wrote the prevailing opinion in the notorious 2010 Citizens United case, opening the door to unlimited unaccountable outside campaign spending.

But Justice Kennedy has also expressed concern about the pernicious effect of campaign contributions on judicial impartiality.  For instance, in the Massey Coal Company case, Justice Kennedy led the majority in preventing the West Virginia judge elected with Massey money from ruling on a case brought against the company.

And though Justice Kennedy lobbed numerous questions at Williams-Yulee’s attorney – and even called one proposed alternative to the Florida law “just unworkable” – he had no questions for Barry Richard, who represented the Florida bar.

A decision is expected by June.

Photo: The Louisiana Supreme Court upheld a law gutting teachers’ pensions. |   educationvotes


David Sobelsohn
David Sobelsohn

David Sobelsohn is the Supreme Court correspondent for Press Associates Inc. (PAI), the union news service in Washington D.C. Sobelsohn's career has combined organizing and politics with teaching and scholarship.