Fair Courts Litigation Task Force

For more than a decade, nearly every effort to protect courts from the influence of money and partisan politics has faced a vigorous litigation assault. Opponents of court reform have targeted ethical rules aimed at promoting the integrity and independence of the judiciary; public financing for judicial elections; and the use of nonpartisan merit commissions to screen judicial nominees.

The Fair Courts Litigation Task Force comprises a number of groups working to ensure a fair and impartial judiciary. This site tracks current litigation impacting fair courts, and collects resources regarding previous litigation relevant to fair courts.

Current and Recent Cases of Interest

Williams-Yulee v. Florida Bar.  In reviewing charges of professional misconduct stemming from a judicial election campaign, the Florida Supreme Court upheld Canon 7C(1) of the Florida Code of Judicial Conduct, which prohibits the personal solicitation of campaign contributions by judicial candidates.  The court concluded that the canon "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."  On October 2, 2014, the U.S. Supreme Court granted certiorari.  Of the 39 states that elect judges, 30 prohibit judges from personally soliciting campaign contributions, with 22 states employing the same type of stand-alone blanket prohibition as Canon 7C(1).  Courts considering challenges to personal solicitation prohibitions have split on the issue.  The federal courts of appeal for the Third and Seventh Circuits and the highest courts of Arkansas, Florida, Maine, and Oregon have found these prohibitions constitutional.  But federal appeals courts for the Sixth, Eighth, Ninth, and Eleventh Circuits have found that broad prohibitions on direct solicitation may violate the First Amendment.  Moreover, courts have divided on the appropriate standard of review for these cases.  This is the first U.S. Supreme Court case involving judicial campaign conduct since 2002's Republican Party of Minnesota v. White.

Wolfson v. Concannon - In Arizona, counties with fewer than 250,000 people elect their judges. Both judge and non-judge candidates must comply with the ethical standards set forward by the Arizona Code of Judicial Conduct. In Wolfson v. Concannon, an unsuccessful candidate for judicial office in Arizona has challenged provisions of the Code, alleging they restrict his speech, violating his First Amendment rights. The judicial canons in question include those that prohibit judicial candidates from: (1) making speeches on behalf of political organizations or candidates for public office; (2) publicly endorsing or opposing political candidates publically; (3) soliciting funds on behalf of, or contributing funds to any candidate or political organization in excess of the amounts permitted by law, or making total contributions in excess of fifty percent of the cumulative total permitted by law; (4) actively taking part in any political campaign other than his or her own campaign for election, reelection, or retention in office; and (5) personally soliciting campaign contributions other than through a campaign committee.

A district court ruling upheld the canons, granting summary judgment in favor of the Arizona state officials. However, in a split decision, a three judge panel of the Ninth Circuit of the U.S. Court of Appeals reversed the district court’s decision. The Ninth Circuit panel’s ruling emphasized that it based its analysis on the distinction between judge and non-judge candidates, finding the canons unconstitutional only as applied to the latter group. Where the district court had rejected the notion that judicial candidates ought to enjoy greater freedom to engage in partisan politics than sitting judges, the Ninth Circuit panel found the restrictions on non-judge free speech to be insufficiently narrowly tailored to hold up under strict scrutiny.

The Brennan Center, along with the Arizona Judges’ Association, American Judicature Society, Justice at Stake, and The Campaign Legal Center filed an amicus brief in support of the state’s petition for the case to be reheard en banc.  On September 26, the Ninth Circuit announced that it will rehear the case en banc.

Zachary Mulholland v. Marion County Election Board

In an order issued November 17, 2014, a U.S. District Court judge approved an agreed judgment between both sides in Mulholland v. Marion County Election Board and declared that the slating statute in Indiana cannot be legally enforced. The statute in question prohibits a candidate in a primary election from publishing campaign materials using the names of other candidates without their written consent and notice to the Election Board. Critics of the slating law worry that it allows the heads of local political parties to censor campaign fliers and other materials printed by unendorsed candidates.

The lawsuit was filed in 2012 by Zachary Mulholland, a former Democratic candidate for an Indianapolis state legislative office. Mulholland, represented by the ACLU of Indiana, alleged that the Election Board unfairly enforced the statute by taking away his campaign materials at polling sites on the day of the primary and demanding he appear for a hearing, in spite of having previously conceded in a 2003 federal lawsuit that the same slating statute violated the First Amendment. The flier in question said “Vote Democrat” above the names and pictures of President Barack Obama; then-U.S. Senate candidate Joe Donnelly; U.S. Rep. Andre Carson, D-Indianapolis; and gubernatorial candidate John Gregg.

Hale v. State Farm Mutual Automobile Insurance Company (3:2012cv00660)

This racketeering case concerns allegations that judicial campaign donations led the Illinois Supreme Court to overturn improperly a $1.05 billion judgment in a 2005 consumer class action suit, Avery v. State Farm.  Plaintiffs allege that State Farm Mutual Automobile Insurance Company conspired with Illinois Supreme Court Justice Lloyd Karmeier’s campaign to elect Karmeier to the Supreme Court, with State Farm providing campaign funding in exchange for Karmeier’s vote to overturn the judgment against them. Plaintiffs seek to depose Karmeier and, representing a class identical to the one in Avery, seek treble damages awarded with 14 years of interest.  Karmeir was reelected in an uncontested retention election in November 2014.

U.S. District Judge David Herndon is hearing the case in the Southern District of Illinois. The Seventh Circuit Court of Appeals denied State Farm’s request to grant mandamus relief and halt the case in January 2014.

Inquiry Concerning a Judge, No. 13-25 Vs.  Re: Andrew J. Decker, III (SC14-383)

Florida Judge Andrew Decker III faces allegations that he violated several canons of judicial conduct by lying during his campaign and by claiming that his religious and political opinions guide his judicial decisions.  In a campaign debate prior to his November 2012 election, Decker stated that he had never faced conflict of interest accusations.  In fact, a land trust that Decker represented as a private attorney in a foreclosure case accused him of both misconduct and conflict of interest earlier that year.  While campaigning, Decker also made statements that he would act as a Christian judge, was pro-life, and identified with the Tea Party.  These statements allegedly violate several judicial canons that govern appropriate conduct by judges and judicial candidates, including one stating that a judge “shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.”

On February 25, 2014, the Florida Judicial Qualifications Committee filed charges against Decker.  Decker has twenty days to file a written answer to the charges, after which a six-member panel will hear arguments from both sides.

Recent Cases

McCutcheon v. F.E.C. - This is the latest in a line of cases in which the Roberts Court struck down a campaign finance law regulating how much big money can flow into political races.  In the decision, the Court struck down the federal aggregate contribution limits which restricted an individual to contributing $48,600 to all candidates and $74,600 to all parties and PACs per election cycle.  While this case does not directly involve judicial elections, the case could threaten the ability of states to limit the corrosive influence of large campaign contributions in judicial elections.  Oral arguments were heard October 8, 2013.

Dobson v. Arizona - Article VI of the Arizona Constitution created the Commission on Appellate Court Appointments and requires the Commission to nominate “not less than three” candidates to the governor in order to fill judicial vacancies. In 2012, the legislature placed a referendum measure on the ballot to amend this article with Proposition 115, which would have increased the minimum number of candidates the Commission was required to nominate. Over 70 percent of Arizona voters rejected this measure.

In its recently completed session, the legislature passed House Bill 2600, “requiring the Commission to submit at least five candidates to the Governor, but provides that on a two-thirds vote, the Commission may reject a candidate and ‘submit fewer than five names.’”  This measure was signed into law by Governor Brewer, and the members of the Commission are challenging the statute in this action, arguing that the law is an end run around the requirement that voters approve constitutional changes, and that the law alters the separation of powers in granting the governor more power of selecting judges.  The Brennan Center for Justice and Justice at Stake submitted an amicus curiae brief in this action.

On September 13, 2013, the Arizona Supreme Court agreed with petitioners' claims and struck down the law in its entirety.  In doing so, the court adopted in its entirety an argument the Fair Courts Litigation Task Force made in our brief.  In particular, the court agreed with our position that the legislative changes (in the court’s words) worked “a fundamental change in the constitutionally prescribed balance of power between the Commission and the governor.”  They also adopted our argument that the statute unconstitutionally infringed on the Supreme Court’s authority to adopt the rules of procedure for the commission.

Sanders County Republican Central Committee v. Bullock - This case involves a challenge to a Montana statute prohibiting political parties from endorsing, contributing to, and spending money in support of candidates in the state's nonpartisan judicial elections.  The case was heard by a Ninth Circuit panel, which struck down the endorsement and expenditure bans.  On July 5, 2013, Montana petitioned the Ninth Circuit to re-hear arguments en banc.  On August 16, 2013, the Ninth Circuit declined to hear the case en banc, allowing the panel’s decision to stand.  On January 13, 2014, Montana petitioned the U.S. Supreme Court for certiorari, seeking to have the Ninth Circuit's opinion reversed and remanded.  On February 24, 2014, the Supreme Court denied Montana's petition.  In Montana, political parties will now be permitted to endorse candidates and make expenditures in the state’s nonpartisan judicial elections.  

Strine v. Delaware Coalition for Open Government (13-869)

In 2009, Delaware passed a law allowing businesses with at least $1 million in dispute to use state chancery judges and courtrooms for arbitrations concluding in enforceable legal judgments.  For litigants who would pay the $12,000 in filing fees and $6,000 per day after that, their filings would not be docketed, their courtrooms would be closed to the public, and their judgments would be confidential.  Closed hearings and sealed proceedings are not unusual in private arbitrations, but it is highly unusual for a binding arbitration to take place in a government courtroom on government time before a sitting judge acting on behalf of the state (rather than acting solely on the basis of a private contract), with arbitration fees paid directly to the court.

The advocacy group Coalition for Open Government challenged the legislation as an unconstitutional violation of the public’s First Amendment right of access to civil proceedings. In 2012, a federal district court agreed, as did a divided appellate court. On January 21, 2014, the Delaware Chancery Court filed a petition for a writ of certiorari to the Supreme Court seeking reinstatement of the arbitration program. On March 21, 2014, the Supreme Court denied the petition, leaving intact the Third Circuit's decision striking down Delaware's program.

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