Supreme Court Action: Campaign Contributions for Judges and Conciliation Efforts by the EEOC

The Supreme Court issued two opinions this morning.  The first, Williams-Yulee v. Florida Bar (13-1499), decides whether a rule in the Florida Code of Judicial Conduct baring direct solicitation of contributions by a candidate for judicial office violates the First Amendment.  The Court declares it does not.  Williams-Yulee posted an online letter directly soliciting funds for her campaign.  She was disciplined by the Florida Bar for violating the Code and the Florida Supreme Court upheld the disciplinary action.

The Supreme Court affirmed the decision of the Florida Supreme Court noting that it is a compelling state interest to place rules in place that maintain the trust of the people in the judiciary.  Judicial elections are different from legislative or executive elections in that those candidates are essentially politicians who are likely to respond to the preferences of their donors.  Judges, on the other hand, must decide even-handedly the issues before them.  The Court also noted that many of the contributors are likely to be lawyers who may appear before the judge.  Recusals and similar actions in these circumstances are not enough to necessarily maintain public trust in the judiciary.

Chief Justice Roberts delivered the opinion of the Court, except as to Part II.  Justices Breyer, Sotomayor, and Kagan joined the opinion in full.  Justice Ginsburg joined the opinion except as to Part II.  Justice Breyer filed a concurring opinion.  Justice Ginsburg filed an opinion concurring part and concurring in the judgment and was joined by Justice Breyer as to Part II.  These concurrences and exceptions were related to levels of scrutiny applied and not to the application of the First Amendment.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas.  Justices Kennedy and Alito each filed dissenting opinions.  The dissents would strike down the ban for various reasons in applying First Amendment protections.

The second case was not, in comparison, fractious.  That case is Mach Mining LLC v. EEOC (13-1019).  Title VII gives the EEOC broad discretion in settling claims made against an employer.  The statute specifically provides a requirement that the Commission endeavor to end the “alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  The EEOC may then file a lawsuit if those efforts fail.  However, nothing said or done in those proceedings may be used as evidence subsequently without explicit permission of the persons concerned.

The procedural history of this case is relevant.  The EEOC sent Mach Mining a letter stating it received complaints about employment discrimination and that a representative would begin the informal settlement process.  The Commission sent a second letter about a year later stating that these conciliation efforts failed.  It sued Mach Mining in federal court.  Mach Mining argued that the Commission had not negotiated in good faith.  The EEOC responded that its efforts were not subject to judicial review.  The District Court said it could review the efforts but allowed the Commission to immediately appeal the decision to the Seventh Circuit.  The Appellate Court reversed.

The Supreme Court vacated that decision and remanded.  The effort for conciliation is reviewable but the standard is very narrow based on the language of Title VII.  Mach Mining argued that the actual conciliation be reviewed using the National Labor Relations Act (NLRA) to determine whether the Commission acted in good faith.  The Court rejected that as the NLRA is process-based.  Title VII, on the other hand, is not about process but merely requires the Commission to negotiate before filing suit.  All the Commission has to do is inform the employer about the charged conduct and then negotiate.  A sworn affidavit from the Commission to that effect will meet its statutory obligations to that effect.  The employer can only dispute whether these things have taken place.  The Commission merely needs to carry out these requirements if the reviewing court finds that they have not taken place.

Justice Kagan delivered the opinion for a unanimous Court.  So let it be written, so let it be done.

Mark

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