Utah Court Rules – Published for Comment
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Posted: January 28, 2020
CJC03.7. Participation in Education, Religious, Charitable, Fraternal, or Civic Organizations and Activities. Amended. Amends the Code of Judicial Conduct to permit judges to directly engage in fundraising for court projects, as long as the potential donors do not regularly appear in the court the judge serves.
I think the proposed rule is fraught with potential for conflicts of interest. For example, how would the judges run a check for potential conflicts, as law firms do. Assisting in fundraising for religious organizations or religiously oriented educational groups might be a violation of separation of church and state. How would litigants and participants in the courtroom process be informed of the fund-raising? Would it be required? Could this be the basis for a motion to recuse and thus create conflict among judges who are assigned cases arising out of the conflict? Currently in the Third District Court in and for Salt Lake County, juvenile judges are assisting in adult courts. What if fundraising in one capacity creates a conflict when the judge is re-assigned or required to cover courts in another capacity? Is “regularly appear” defined somewhere? Is “regularly appear” limited to parties or does it include attorneys? Could this invite parties or attorneys to create a conflict by inviting judges to participate in fundraising and then raise the issue as a conflict to be able to judge shop? Could this create the appearance of bias if a judge agrees to assist one group but declines assistance to another?
This rule is bad for several reasons:
First, judges are part of a cultural group that lends the prestige of that group when engaged in fund raising efforts regardless of whether the fund raiser regularly appears before the judge. The appearance of the “judiciary” seeking funds for causes casts a shadow on all members of the judiciary.
Second, the idea that the judge can hear cases of those in which he assists in fundraising but that do not regularly appear is just an excuse to allow the judge to hear cases that might be important to the fundraiser in cases where the fundraiser does not “regularly” appear. If you assist an organization in raising funds, judges should not be allowed to hear any cases involving the organization.
Third, organizations only seek assistance in fundraising of judges because of the judicial title. Such efforts detract from the notion that judges are neutral. It gives the appearance that judges have an “interest” in the cause that would be hard to set aside. Judges have an interest in maintaining a neutral posture and delving into fundraising efforts only increases doubts of bias.
I do not believe that any fundraising is appropriate for judges. Those who do NOT donate could be held in disfavor or believe they have been treated unfairly by the court. Those who do donate will do so to curry favor. The impact of donations from one lawyer and/or from law firms will appear to be to curry favor with the court.
This is a dangerous precedent that chips away at the image of impartiality of the court system.
who is going to enforce this? it’s just one more chance to abuse influence. not likely to bother any but those who most likely to abuse. dump the rule
This proposed rule is but a further attempt to politicize, compromise and corrupt the judiciary, something that has been going on since the 1990s in my opinion. It is wrong. Dead wrong.
When a person becomes a judge, he or she should never again be involved in politics whatsoever. If a judge doesn’t like making that sacrifice, he or she shouldn’t become a judge.
A judge isn’t supposed to become a member of or promote political clubs or political endeavors. That is inconsistent with holding oneself out as having no bias and being uncompromised.
I do not want a system where judges engage in public acts of “virtue-signaling” and rewards are conceivably dispensed to those who concur or donate their money accordingly.
Just imagine where this rule will conceivably go in the future. Eventually a judge would have his own charity or civil fundraiser and he or she would keep track of which lawyers or members of the public (i.e., donors) contribute and those that do get a better shake in that judge’s courtroom. He just looks at his list when lawyers or parties make appearances and determines who’s thus on board with his political agenda and who isn’t.
And if that wouldn’t actually happen, this rule surely provides that “appearance.” Whatever happened to shirking or avoiding “the appearance of impropriety?” I’ll tell you. It is dead. No one cares about that anymore. The rules have gutted it in large part. It used to be the cardinal rule of being a lawyer and a judge. Not anymore. Today, anything goes if the exception-permitting language is tweaked and convoluted enough and amorphous words like “reasonable” or “good faith” are sprinkled around here and there.
There is simply no reason to open this door. We are not yet a banana republic and important principles need to be honored to make sure we don’t become one, in spite of people who seem determined to take us in that direction.
Lastly, the wording of the rule reveals its improper purpose or intent. No one “appears” before a judge “regularly.” What on earth does that mean? It means that no would-be “donors” get excluded from appearing before that judge.
I am afraid of any situation where Judges are soliciting money-period. I am terrified of a situation where Judges solicit money for their personal “judicial projects” or “judicial projects” of other Judges. Talk about inviting conflicts of interest. This is a very bad idea. Wrong.
We encourage the Court to rescind and reject this proposed rule. We believe that any benefits to the courts and the public from this rule change will be significantly outweighed by the harm to the perception of impartial justice in our state. Courts and judicial activities should be funded as an independent branch of government rather than as public charities.
Utah’s judicial selection process has blessed our state with a judiciary insulated from partisan pressures and financial conflicts of interest. It is, rightfully, the envy of the nation.
We are concerned that this proposal could undermine our system by opening the door to real or perceived conflicts of interest. However worthy the cause, whenever a judge solicits (or receives) a contribution from a lawyer, a party, or a potential party, that interaction holds the potential to subtly alter the balance of power in the relationship.
True, the proposed rule would prohibit judicial solicitations to “individuals or entities that have cases pending before a judge or that regularly appear in the court of which the judge is a member,” but we question whether that prohibition is sufficient to address our concerns. Often a judge will not be in a position to anticipate whether a potential donor is likely to appear before that judge. This danger is especially acute for appellate judges, given that appeals can be years in the making, and given the lengths that motivated potential litigants might take to influence or disqualify a judge. When word of a jurist’s favorite cause gets around, donations could flow in either to curry favor or to be weaponized to seek recusal. Either way, justice suffers.
The bottom line, in our view, is that the perception of judicial integrity and independence is priceless, and should not be put at risk. We urge the Supreme Court to rescind and reject this proposed rule.
Paul C. Burke & J. Frederic Voros, Jr.