For judges, a chance to say ‘please’ and ‘thank you’ for campaign cash

Ensuring the independence of the judiciary has been on the minds of Illinois lawmakers for a long time.

At the 1970 Constitutional Convention, the impact an election process could have on judges — including collecting financial donations from voters — weighed heavily on delegates’ minds.

“If we foist the judge in a representative role, it seems to us unrealistic to expect that the judge will not have some loyalty to the people that elected him — some loyalty to the people that gave campaign contributions to his campaign,” delegate Jeffrey R. Ladd, who later became a practicing lawyer, told the convention in July 1970 as he advocated for a merit-appointment process.

Divided over the issue, delegates left it up to voters to determine whether to employ a commission to select members of Supreme, appellate and circuit courts or whether they should continue to go through partisan elections.

Fast forward 45 years to Gov. Bruce Rauner’s State of the State address in February. He identified “merit-based judicial reform” — and banning trial lawyers from contributing to judges’ election coffers — as one of his legislative goals.

Before Springfield can act, though, Illinois’ judge-picking process could get a jolt from Washington.

A case pending before the U.S. Supreme Court challenging Florida’s ban on judicial candidates directly soliciting campaign contributions could jeopardize similar rules in states that elect judges, including Illinois.

The nation’s highest court heard arguments in January in Lanell Williams-Yulee v. The Florida Bar, No. 13-1499, a case arising from a judicial race in a Florida circuit court. A ruling is expected by the end of June.

Tampa-based attorney Lanell Williams-Yulee announced her judicial candidacy in late 2009, sending a mass mailing asking for donations to help launch her campaign. She signed the letter at the bottom.

She lost the 2010 election, only earning about 20 percent of the vote. But the Florida Bar, the state’s attorney-discipline arm, filed a complaint against Williams-Yulee in the Florida Supreme Court alleging she violated a canon of Florida’s Code of Judicial Conduct prohibiting candidates for judicial offices from personally soliciting campaign donations.

Florida’s rule, much like its equivalent in Illinois Supreme Court Rule 67, addresses inappropriate political activity for judges and judicial candidates.

Both states’ policies allow candidates to establish committees to solicit and manage campaign funds, but it prohibits the candidate from directly participating in asking for and collecting money.

In May 2014, the Florida Supreme Court found Williams-Yulee guilty of professional misconduct for directly soliciting when she signed the campaign letter. It issued a public reprimand and required her to pay the cost of the disciplinary proceedings.

Williams-Yulee contended the rule was unconstitutional because it limited her right to free speech as a candidate for elected office. The court disagreed, ruling the state has a compelling interest in preserving public confidence in the independence of the judiciary.

While the high court has yet to issue a ruling in Williams-Yulee, attorneys in Chicago said the court’s past rulings have favored loosening campaign-finance regulations on free-speech grounds and the free-speech rights of judicial candidates.

In a 2002 ruling, Republican Party of Minnesota v. White, the Supreme Court struck down Minnesota’s prohibition on judicial candidates announcing personal stances on political issues. The 5-4 majority held that the state’s interest in protecting its courts’ independence was not compelling enough to restrict the candidates’ speech.

Illinois had the same “announce” clause as Minnesota, but it was removed in 1993 following a similar case in the 7th U.S. Circuit Court of Appeals — Buckley v. Illinois Judicial Inquiry Board. After that decision, the state high court modified Rule 67 to prohibit candidates from committing to a stance before taking the bench.

Supreme Court decisions in Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, meanwhile, weren’t focused on the courts but rather on corporate donor bans and aggregate contribution limits. The majorities in those cases upheld campaign contributions as constitutionally protected free speech.

Steven F. Pflaum — a partner at Neal, Gerber & Eisenberg LLP — is president of the Appellate Lawyers Association and has served on the Illinois Judicial Ethics Committee.

He said a decision that affects Illinois’ rule — the high court overturning a prohibition on direct solicitation of campaign contributions — could make a complicated situation more complicated.

“I think the key question is, ‘How will it change things?’ And it’s fair to say that, at least, I’m concerned it would further pollute a climate for judicial elections, in particular, that is becoming increasingly toxic,” he said.

Pflaum’s concern isn’t about overt quid pro quo corruption in judicial races but rather a more subtle impact that undermines courts’ independence or public belief in the legal system’s legitimacy and fairness.

It would be inherently coercive for a judge to solicit money from attorneys who litigate cases in the court, Pflaum said. But that doesn’t mean he thinks attorneys shouldn’t make contributions to the same judges they appear before.

“There is something to be said for the fact that lawyers are probably in the best position to know who is a good judge and who isn’t,” Pflaum said.

It’s the context in which they decide to give that’s key.

“(If) people choose to give to any kind of campaigns, they should do it because they want to do it,” he said.

Even without an intention to coerce, lawyers naturally feel pressure to comply with requests from judges. Because a direct solicitation from a judge would be more effective, it’s likely the reason why candidates would want the option to solicit directly rather than relying on a committee to make the same requests.

“It doesn’t have to be intended that way — it’s just inherent in the situation,” Pflaum said.

Allowing judges to personally solicit would cause even the most honest judges to wrestle with the public perception of any case involving a contributor, he said, rather than focusing on the legal factors of the case.

“It’ll creep into a judge’s consciousness and complicate a judge’s ability to act impartially,” Pflaum said. “I think in some way it could interfere with the judicial decision-making process.”

And allowing solicitation would further public perception that justice is for sale, he said.

“It’s bad enough in some quarters judges are viewed as just politicians,” he said.

It’s that same notion of judges as politicians that makes 1st District Appellate Justice Michael B. Hyman uneasy.

Hyman, president of the Illinois Judges Association, said federal rulings such as the White case have chipped away at public confidence by blurring the lines between judges and candidates for executive or legislative offices.

“We are not politicians — we are judges — and to the extent the (U.S.) Supreme Court continues to confuse the two, the whole justice system in the states that elect judges (is) at risk.”

During oral arguments in Williams-Yulee in January, the justices asked the parties whether Florida’s ban accomplishes its intended purpose — prohibiting candidates from coercively collecting campaign funds.

The attorney for the Florida Bar told the justices that while the candidate cannot ask for money, there’s nothing preventing the candidate from learning who donated through public disclosure records or from writing a thank-you note to the donor.

After a question from Justice Stephen Breyer, the Florida Bar conceded there’s nothing unlawful with a solicitation message from a campaign committee telling prospective donors the committee will report back to the candidate who donated.

The justices asked the Florida Bar to identify what made what Williams-Yulee did worse than what she could have done.

“I want to know what the differences are, which is a main point that was argued that once you say they can write a thank-you note, and … in the initial letter you can say, ‘and I will tell the judge,’” Breyer asked.

“Once Florida permits those things, what is it that Florida’s current interpretation adds to that? And if it adds nothing of significance, why is it constitutional?”

Illinois’ rules also allow for judges to issue thank-you notes. It’s a topic addressed in a 1995 opinion by the IJEC.

“If it is permissible for a judge to know the identity of contributors, then there would be no reason to prohibit a judge from personally sending ‘thank-you’ notes to those contributors,” the IJEC opinion says.

“On the other hand, if the purpose of Rule 67 is to insulate judicial candidates from the identity of contributors, then personally written ‘thank-you’ notes would violate Rule 67B(2) and acknowledgements could only be made by a representative of the campaign committee.”

Both Pflaum and Hyman said they’ve never heard of Illinois judicial campaign committees telling donors that they will relay news of the contribution, as the Supreme Court addressed.

“I think most people would recognize that without trying to decide it would be unethical, it’s clearly unadvisable,” Pflaum said.

While Illinois did not submit a friend-of-the-court brief, 11 other states did.

A brief written by Arizona’s solicitor general — and signed by the attorneys general of Arkansas, Idaho, Indiana, Mississippi, North Dakota, Oregon, Pennsylvania, South Dakota, Vermont and Washington — argues the states’ varying regulations still allow for candidate speech while still holding judicial impartiality as a compelling interest to protect.

At least two Illinois groups also participated in friend-of-the-court briefs. The Chicago Appleseed Fund for Justice and Chicago Council of Lawyers were signatories on a brief written by the Brennan Center for Justice at New York University School of Law.

Elizabeth Monkus of the Chicago Appleseed Fund said the campaign fundraising restrictions on judges boil down to a simple matter of trust in the system.

“It’s well-demonstrated that our courts don’t work without a basic level of trust with participants,” Monkus said.

More than ever before, the public puts more scrutiny on money collected and spent in elections, she said. And she said more money from outside the state is feeding judicial races in Illinois.

The ease of modern, searchable campaign disclosure records complicates the issue because it means judges inevitably know who their donors are.

“It really highlights the discomfort people have that judges have to ask for money,” Monkus said, “and they’re in a position they know they’ve (been given money).”