Thursday Thinkpiece: Pitel and Malecki on Policy Arguments About Judicial Fundraising

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Judicial Fundraising in Canada
Stephen G. A. Pitel and Michal Malecki
Alberta Law Review, Forthcoming

5. Policy Arguments about Judicial Fundraising

Judges play an indispensible role in the administration of justice. Their position requires that they be “held to higher standards of integrity and ethical conduct than attorneys or other persons not invested With the public trust”.[89] To ensure that the public does not lose confidence in the judicial system, a delicate balance is required to maintain a degree of judicial insulation from society so that judges remain impartial arbitrators While at the same time allowing them to be active members of the community. Too restrictive measures on extrajudicial activities carry the risk that judges will “lose contact with the world outside the court, which in turn will result in judicial short sightedness and unresponsiveness to the ever changing needs of society”.[90] On the other hand, permitting judges to freely engage in extrajudicial activities introduces the danger of weakening public confidence in the courts.[91] It also risks individuals believing that justice can be purchased.[92] The issue of whether to allow judges to fundraise for civic and charitable organizations requires resolution of the tension between these positions.

At the outset it should be noted that fundraising is not simply one of several forms of possible community involvement. Fundraising for a cause shows a much stronger degree of support for that cause than indications of personal agreement, volunteering of time and activity, and even personal financial contributions. It moves beyond one’s own individual support to the active seeking out of expressions of support from others. It encompasses an advocacy function, championing the cause and seeking to rally others to it. Moreover, unlike other involvement it entails a specific and identifiable response by others, who must either agree to donate or not.

There are many arguments in favour of a ban on judicial fundraising. It has been long recognized that “ethical system[s] must be framed as to prevent judges from being activists, mavericks, [and] publicity-seekers”.[93] In view of this, judicial fundraising presents ethical problems as it can directly or indirectly result in a judge being publically associated with an organization as its advocate. This in turn may have significant negative repercussions as it could undermine the perceived impartiality of the judge and reduce the public’s trust in the justice system.

(a) Erosion of Public Confidence in the Impartiality of Judges

Judges are expected to be impartial, which “connotes [the] absence of bias, actual or perceived”.[94] Impartiality is so important that it is a constitutional right of all Canadians that they are entitled “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.[95] Judicial fundraising can place that impartiality in jeopardy. Every time judges solicit funds for any cause there is always the risk that those that appear before the court may suspect that the judge may be affected by the resulting financial support.[96] A “system of justice based on how much money you gave or raised for the judge before whom you are appearing cannot sustain public trust, and inevitably the public will believe about the judiciary what they believe about politics: money is what determines results”.[97] If individuals cannot be assured that judges are impartial, this could erode public confidence in adjudication and could result in people becoming reluctant to seek the aid of the judiciary to help resolve disputes.[98

A common concern regarding judicial fundraising is that donors (which may include lawyers and potential litigants appearing before a judge) may contribute with the expectation that they will receive future favours in return for their generosity from the soliciting judge.[99] Some have likened this to an acceptance of a gift by a judge, since a potential donor may contribute expecting a favour in return. Even if donors do not have an ulterior motive in contributing, the “public may view this generosity as an attempt to gain a courtroom advantage over a less generous attorney or litigant”.[100] As a result, the fears remain that judges who raise money may either appear beholden to those from whom funds were solicited or that they may not appear to be impartial if donors end up becoming litigants before them.[101] Since judicial impartiality is vital to inspiring public confidence in the justice system and ensuring just verdicts, any judicial fundraising which has the potential to undermine impartiality should be avoided.

(b) Identification of the Judge with the Objectives of an Organization

When judges raise money for charitable or civic causes it publically identifies them with the objectives of the organization for whom the solicitations Where made.[102] When a judge identifies himself or herself either voluntarily or as a consequence of involvement with a cause or issue this heightens the risk that the public could question the judge’s neutrality.[103] For instance, the public may view a judge that is involved with fundraising efforts for Mothers Against Drunk Driving Canada as having a pre-disposition on the issue of impaired driving, an issue which may come before the judge in a variety of cases.[104] While the cause may be worthy, it is undesirable that the public perceive a judge as having a particular attitude or opinion about an issue as a result of his or her fundraising efforts or affiliation with an organization.

(c) Increase in the Number of Recusals

It has been argued that judicial fundraising has the undesired potential of contributing to an excessive number of recusals.[105] This is problematic since regular disqualifications impose a cost on both the justice system and the public.[106] This is because such involvement “Will often necessitate the disqualification of a judge in a matter they have been involved with or have familiarly with due to their extrajudicial activities”.[107] Justice Thomas has strengthened this argument by considering the inherent incompatibility between judicial and non-judicial functions.[108] At its core, the argument states that judges should be hesitant when engaging With organizations, as the nature of charitable and civic groups has changed as they are now more frequent litigants than in the past.[109] Simply, judges should refrain from engaging with charities

that could be involved in legal disputes or could cause controversy. This has become a more salient issue over time as organizations are now more likely to be involved in “political disputes over funding, the role of labour unions, abortion and other matters”.[110] There is some evidence that judges have taken notice of these changes, as for instance they have reduced their involvement of any kind in organizations like the Canadian Red Cross and the Canadian National Institute for the Blind as compared to their more active involvement in the past.[111]

(d) Detracting from the Performance of the Judicial Function

Another concern is that fundraising may detract from the time and energy that judges spend performing their judicial functions.[112] The fear is that when judges become involved in extrajudicial activities their efficiency suffers.[113] Judges should devote themselves entirely to judging, which demands that they refrain from pursuing other goals regardless of how worthy or beneficial they may be.[114] If judges were allowed to engage in fundraising activities this would reduce the amount of time judges spent adjudicating disputes.[115] This in turn could result in a backlog of cases and a reduction in the speed at which disputes are resolved.[116] There is also the danger that if a fundraising activity becomes too time-consuming, the public may mistakenly believe that the judge is “not a full-time judge, or to take the view that the office of the judge is not a full-time occupation”.[117]

(e) Improper Use of the Prestige of the Judicial Office

A more general concern regarding judicial fundraising is that it is incompatible with the exercise I of judicial power. Arguably when judges use their position to solicit contributions they misuse the judicial office and may cause people to feel intimidated or coerced into donating.[118] Judges might take advantage of the prestige of their office to solicit money for an organization, and this may occur even in circumstances where such conduct cannot be described as involving intimidation.[119] The prestige of the judicial office is not intended to be used as a vehicle to advance economic, financial, social, political or other interests including a charity’s interests.[120] The motivation behind this concern is the “fear [that] not only [will] a future decision be tainted, but also that the public will lose confidence in the character of a judge who seeks, takes or appears to take any advantage of his or her office”.[121] Some have suggested that the best way to guard against such dangers is to entirely preclude fundraising. This would prevent judges from åany enticement to lend the prestige of the judicial office to benefit other interests.[122] It would also have the beneficial effect of preventing the appearance of judicial impropriety.[123] . . . .

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84 Judiciary of England and Wales, Guide to Judicial Conduct 2013 (London: Judges’ Council, 2013) Acknowledgements at 4 [Guide], online: Judicial Office <http://www.judiciary.g0v.uk/Resources/JCO/Documents/Guidance/judicial_conduct_2013.pdf> (date accessed: 22 September 2013).

85 [bid at ch 8, ruls 8.4.1.

86 Ibid at ch 8, rule 8.4.2.

87 Ibid.

88 Ibid.

89 Jeffrey M Shaman, Steven Lubet & James J Judicial Conduct and Ethics (Charlottesville: The Michie Company, 1990) at 1.

90 Shimon Shetreet, “Standards of Conduct of International Judges: Outside Activities” (2003) 2 Law & Prac Int’l Courts & Trib 160 at 161. See also John Sopinka, “Must a Judge Be a Monk — Revisited” (1996) 45 UNBLJ 167.

91 Steven Lubet, “Judicial Ethics and Private Lives” (1984) 795 NW UL Rev 983 at 1007.

92 In Re Amendments to the Code of Judicial Conduct — Limitations on Judges’ Participation in F undraising Activities, 983 So 2d 550 at 566 (Fla Sup Ct 2008).

93 James Thomas, Judicial Ethics in Australia (Sydney: The Law Book Company Limited, 1988) at 42.

94 R v Valente, [1985] 2 SCR 673 at para 15.

95 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(d).

96 Micheal Mone, “An impartial and independent judiciary” (2002) 20:4 Advocates’ Soc J 15 at 17.

97 Ibid.

98 Shetreet, supra n 90 at 161.

99 Ian Binnie, “Judicial Independence in Canada” (Paper delivered at the World Conference on Constitutional Justice, Rio de J aneiro, 16-18 January 201 1), online: Supreme Court of Canada <www.venice.coe.int/wccj/rio/papers/can_binnie_e.pdf> (date accessed: 15 May 2013) at 25. See Alfini, supra n 41 at 368-69.

100 Raymond J McKoski, “Charitable Fund-raising by Judges: the Give and Take of the 2007 ABA Model Code of Judicial Conduct” [2008] MSU L Rev 769 at 772-73. 101 Jackson, supra n 13 at para 41.

102 Binnie, supra n 99 at 25.

103 Thomas, supra n 93 at 39-40.

104 lbid.

105 Binnie, supra 11 99 at 25.

106 E Wayne Thode, Reporter’s Notes to Code of Judicial Conduct (Chicago: ABA, 1973) at 79.

107 Shetreet, supra n 90 at 160.

108 James Thomas, Judicial Ethics in Australia, 2d ed (Sydney: LBC Information Services, 1997) at v.

109 Ibid.

110 Celeste McGovern, “Unelected and unmuzzled: New ethical guidelines allow judges to enter the political arena” (1998) 26: 1 Alberta Report 26 at 26.

111 Jackson, supra n 13 at 9.

112 McKoski, supra 11 100 at 779-81.

113 Shetreet, supra n 90 at 160. “4 Lubet, supra 11 91 at 988.

115 Shetreet, supra 11 90 at 160.

116 Ibid.

117 Thomas, supra n 93 at 37-38.

118 Alfini, supra n 41 at 368~69; Candice Goldstein, “Fundraising by judges: ethical restrictions on assisting civic, cgaritable and other organizations” (1986) 70:1 Judicature 27 at 30.

119 Ibid.

120 Pierre Noreau & Chantal Roberge, Applied Judicial Ethics, 2d ed (Montreal: Wilson & LaFleur, 2008) at 186; Lubet, supra 11 91 at 986; Goldstein, supra n 118 at 30.

121 Lubet, supra n 91 at 987.

122 Goldstein, supra n. 118 at 30.

123 Ibid.

124 McKoskie supra note 117 at 774.