Judge Douglas Mattson, Chair
Judge Sonja Clapp
Bill Neumann, Executive Director, State Bar Association
Chair Mattson called the meeting to order at 10:05 a.m. and outlined the issues before the Committee with respect to possible amendments to Canon 5, and related canons, in response to recent court decisions.
At the request of Chair Mattson, staff briefly reviewed Attachment C (December 9, 2005) - draft amendments to Canons 5, 3B, and 3E and the Terminology Section of the Code of Judicial Conduct. He explained that the draft amendments to Canon 5 set out two alternatives. The first alternative, he said, would simply delete the language relating to pledges, promises, and commitments from Canon 5A(3)(d). The second alternative, he said, would amend Canon 5A(3)(d) to follow the ABA amendments to the Model Code of Judicial Conduct adopted in August 2003. He emphasized that the draft amendments to Canons 3B (Adjudicative Responsibilities) and 3E (Disqualification) and to the Terminology Section (adding a definition of "impartial" and "impartiality") are related only to the second alternative. He drew attention also to Attachment D (December 9, 2005) - excerpts from Canon 5 Comment amendments contained in the preliminary report of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct. He noted the comment excerpts may provide useful language to include in North Dakota's commentary if the ABA approach is followed.
With respect to the ABA amendments to the Model Code of Judicial Conduct, Judge McCullough expressed concern about an apparent tension between the Canon 5 changes and the disqualification or recusal provision (Canon 3E). He noted that the federal district court in ND Family Alliance v. Bader had concluded the pledges, promises, and commit restrictions were not narrowly tailored because recusal was an option. He said the ABA amendments to Canon 3E(1) (Disqualification), which add as a ground for recusal the candidate having made a statement that commits or appears to commit the judge with respect to an issue, seem to undercut justification for the changes to Canon 5. That language directs that a candidate shall not make pledges, promises, or commitments that are inconsistent with the performance of adjudicative duties of the offices. Additionally, he said his initial research indicates that North Dakota has the third fewest number of trial judges of all the states. In light of that, he said, it may be an oversimplification to suggest that recusal is a viable option if candidates make public statements during campaigns that later require disqualification from a case.
In response to a question from Justice Sandstrom, Judge McCullough said it appears that South Dakota has only 38 general jurisdiction trial judges, although magistrates are used, and Rhode Island has 22 general jurisdiction trial judges and 12 family court judges. North Dakota, he said, appears to be tied with Wyoming in having the third fewest number of trial judges.
Judge Severin noted that the Commentary to Canon 3E explains that the rule of necessity may override the rule of disqualification and wondered if that may address issues related to the small number of judges and the potential impact of disqualifications.
With respect to the Alternative 2 draft amendments to Canon 5A(3)(d), which follow the ABA amendments, Judge McCullough said the deletion of language relating to statements that "appear to commit" a candidate seems appropriate in light of Justice Scalia's discussion of the three possible definitions of impartiality in the U.S. Supreme Court's White decision. He said the federal district court in Bader seems to have followed that analysis and, consequently, the deletion of the "appear to commit" language may address one of the principal failings found by the two decisions. Nonetheless, he said he is uncertain whether the ABA amendments will be seen as correctly addressing the requirement that any restriction be narrowly tailored to serve the identified compelling interest. He said it is also unclear whether the ABA amendments adequately address the under-inclusiveness problem found by the U.S. Supreme Court decision and by Bader, one example of which is the lawyer who right up to the point of becoming a candidate has made numerous pledges, promises, or commitments (if the lawyer were ever to become a judge), but upon becoming a candidate can no longer make such statements.
Judge McCullough, a member of the SBAND Task Force on Judicial Selection, informed the Committee that at its last meeting the Task Force concluded that the preferred approach to any canon
changes is to develop alternative language, whether based on the ABA amendments or some other source, rather than to simply remove the pledges, promises, and commit provisions from the canon.
In response to a question from Chair Mattson, Bill Neumann said the Task Force members agreed that narrowly drawn amendments in response to the court decisions are preferable until it becomes clearer where the line regarding acceptable campaign conduct can be drawn. He said the Task Force agrees there are compelling interests to be served by some level of restriction on campaign conduct.
With respect to the draft amendments, Lisa McEvers noted that the "appear to commit" language is removed from the Canon 5 provisions, but is retained in the amendments to Canon 3E concerning disqualification. She wondered why there are different approaches. Bill Neumann observed that it may be because the two canons are directed at different targets: Canon 5A(3)(d) addresses specific kinds of conduct by candidates, while Canon 3E is concerned with statements that may cause someone to reasonably question a judge's impartiality. Thus in a Canon 3E situation, he said, the "appearance" of a commitment may be an issue regarding a judge's perceived impartiality.
Chair Mattson directed Committee members to the alternative amendments to Canon 5 and asked whether the Committee should consider Alternative 1, which would simply delete the pledges, promises, and commit provisions declared unconstitutional in Bader.
Joel Fremstad said the Committee should not pursue Alternative 1. He expressed concern that campaign conduct would be reduced to the lowest common denominator if all restrictions were removed. He suggested further consideration of Alternative 2, which would link the restrictions on pledges, promises, and commitments to impartial performance of adjudicative duties.
Judge McCullough asked whether there are any compelling state interests beyond those reviewed in Bader and the U.S. Supreme Court's White decision which can be identified and addressed in comment language.
Joel Fremstad noted the constitutional provision entitling every person to a remedy. He said if candidates are permitted to pledge, promise, or make commitments and then must disqualify from future cases, a person's constitutional right to an effective judicial remedy may be impaired.
Bill Neumann wondered whether the concept of impartiality was defined too narrowly in the two court decisions and whether it is possible to devise a broader definition that would qualify as a compelling state interest. Judge McCullough noted the three meanings of impartiality discussed by Justice Scalia in the U.S. Supreme Court's White decision: lack of bias for or against a party; lack of preconception in favor of or against a particular legal view; and open-mindedness. The second kind of impartiality, he said, was found not to be a compelling state interest for purposes of the campaign speech restrictions reviewed in White, while the other two were found to be not narrowly tailored to serve a compelling state interest.
With respect to other possible compelling state interests, Judge McCullough noted North Dakota constitutional provisions regarding due process, ensuring justice, and equal treatment under the law. Joel Fremstad noted also the open courts provision under the state constitution.
With respect to Judge McCullough's earlier concern regarding amendments to Canon 3E regarding disqualification, Justice Sandstrom asked whether the amendments should be considered further. Judge McCullough reiterated his concern that if the amendments to Canon 5 and Canon 3E are adopted, at some future point it may be argued that the need to address pledges, promises, and commitments in Canon 3E may imply that Canon 5, as also amended, is not narrowly tailored. He suggested that amendments to Canon 5 would provide guidance to candidates and suggested that amendments to Canon 3E should be deferred until some later time. Joel Fremstad agreed.
After further discussion, it was moved by Joel Fremstad and seconded by Joe Larson that the Committee consider the Alternative 2 amendments to Canon 5A(3)(d) [the ABA approach] and the amendments adding the definition of "impartiality" and "impartial" to the Terminology Section.
Referee Freed expressed concern that the amendments may not fully satisfy the Bader decision. Joel Fremstad agreed there is uncertainty but said the amendments represent a good faith effort to find a reasonable answer.
The motion carried.
It was moved by Judge McCullough, seconded by Joel Fremstad, and carried that the Committee consider the draft amendments to Canon 3B (Adjudicative Responsibilities).
Committee members then reviewed Attachment D (December 9, 2005) - excerpts from the Canon 5 comment amendments prepared by the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct.
Sen. Lee noted comment paragraph  concerning candidates responding to questionnaires and observed that as a legislative candidate she does not respond to such questionnaires. She acknowledged that candidates should be permitted to answer the questionnaires but cautioned that such questionnaires are often written and constructed to almost result in the candidate demonstrating a commitment on certain issues.
Joel Fremstad said the comment paragraphs identified in Attachment D provide good explanations of the interests to be served by some level of restriction on campaign conduct. He suggested that an additional paragraph be added or a paragraph be expanded to address issues unique to North Dakota, such as the small number of judges, various constitutional provisions, and the limitations on recusal as a viable response.
Joe Larson cautioned against referring to any specific cases or court decisions in the comment language.
Joel Fremstad said another factor to be considered is the impact of the demand for judge statute. Lisa McEvers agreed and suggested that the issue of where judges are located across the state may be an additional complication if recusal is considered an acceptable response.
Following discussion, Committee members agreed a paragraph should be added to the comment articulating compelling interests unique to North Dakota and including: reference to relevant constitutional provisions, factors relating to the small number of judges in the state, potential impact of the demand for change of judge statute, and the limited usefulness of recusal as a response to potentially future disqualifying statements by a candidate.
In response to a question from Judge McCullough regarding the timeframe for adoption of any amendments in time for the upcoming election cycle, Justice Sandstrom said it is possible amendments could adopted on an emergency basis.
Chair Mattson suggested a short meeting of the Committee could be scheduled, perhaps for January 29, to consider any additional substantive revisions to the draft amendments. He said a vote by email may also be an alternative.
After discussion, it was moved by Joel Fremstad, seconded by Referee Freed, and carried that the Committee include in the draft amendments comment paragraphs , , , and , with necessary technical changes, as set out in Attachment D.
It was moved by Joel Fremstad, seconded by Lisa McEvers, and carried that an additional comment paragraph, as previously described and discussed, be added which addresses compelling interests unique to North Dakota.
To expedite consideration of additional comment language, Judge McCullough offered to draft possible comment language while the Committee continued its discussion.
Committee members then discussed the recent 8th Circuit opinion regarding Minnesota provisions relating to partisan political activities and solicitation of contributions and support. Staff explained that the 8th Circuit in Republican Party of Minnesota v. White, 416 F.3d 738 (August 2005), an opinion on remand from the U.S. Supreme Court, held unconstitutional several other provisions of the Minnesota Code of Judicial Conduct. Specifically, he said, the Court invalidated prohibitions against a candidate identifying as a member of a political organization, attending political gatherings, and seeking or accepting an endorsement or letter of support from a political organization. He said the Court also invalidated part of a prohibition against personally soliciting contributions. He said the approximate counterparts in the North Dakota Code of Judicial Conduct are Canon 5A(1)(d) [seek or accept endorsements or letters of support], Canon 5A(1)(f) [attend political gatherings], and Canon 5C(2) [prohibiting personal solicitation of contributions and requiring campaign committees]. He noted that a petition for writ of certiorari has been filed with the U.S. Supreme Court.
Lisa McEvers wondered whether the 8th Circuit opinion requires simply removing similar North Dakota provisions from the Code of Judicial Conduct. Joel Fremstad observed that if the 8th Circuit opinion is considered binding, then the provisions likely must be revised or removed. With respect to the binding nature of the 8th Circuit opinion, Judge McCullough said he had located a 1938 Wisconsin opinion that seems to indicate an opinion is not considered final until the petition for writ of certiorari is denied.
Upon receipt of Judge McCullough's faxed draft paragraph articulating compelling interests unique to North Dakota Committee members returned to a discussion of additional changes to the Canon 5 draft amendments. A copy of the draft paragraph is attached as an Appendix.
After discussion, Committee members agreed the draft paragraph was revised as follows: 1) the sentence describing North Dakota as a geographically large state was modified to include a reference to the state having a largely rural, sparse population and a small number of judges; 2) a sentence was added noting that North Dakota has a very liberal statute providing for a change of judge upon demand; and 3) the reference to Canon 3B(10) was deleted from the last sentence and a concluding sentence was added providing "See also limitations imposed under Canon 3B(10).
It was moved by Judge McCullough, seconded by Lisa McEvers, and carried that the draft paragraph, as modified, be approved and included in the comment paragraphs for Canon 5A(3)(d).
It was moved by Judge McCullough, seconded by Joel Fremstad, and carried on a roll call vote that the draft amendments to Canon 5A(3)(d), Canon 3B, and the Terminology Section, be approved and recommended to the Supreme Court for its consideration.
It was moved by Joe Larson, seconded by Lisa McEvers, and carried that the minutes of the November 22, 2005, meeting be approved.
Chair Mattson said the Committee would retain its currently scheduled January 13 meeting for purposes of discussing the 8th Circuit's recent opinion if necessary. He said if research indicates the opinion is binding, notwithstanding the filing of the petition for writ of certiorari, then the Committee can review possible additional changes to Canon 5. If it is not binding, he said, then it would likely be premature to discuss changes until it is learned whether the U.S. Supreme Court has granted the petition. Committee members agreed.
There being no further business, the meeting was adjourned at 1:20 p.m.
Jim Ganje, Staff
The compelling interests of the State of North Dakota supporting the language of Sections3B(10)
and 5A(3)(d) are recognized and supported by several provisions of the North Dakota Constitution, specifically in regard to ensuring the citizens of North Dakota due process of law (N.D. Const. art.I,
§§9 & 12), equal protection of law (N.D. Const. art.I, §9). Further, because of the circumstances found in the State of North Dakota, it is necessary to protect these interests by placing the least restrictive limits of the Free Speech of candidates* and Judges* possible. North Dakota is a geographically large state with relatively lightly concentrated population. There are only 42 general
jurisdiction trial court judges in the entire state. Within a relatively short period of time (6 years), every one of those judges will have been subject to election. Without the provisions of Section
3B(10) and 5A(3)(d), it is reasonably foreseeable that on a particular issue, every general jurisdiction trial court judge in the State could have pledged, promised, or made a commitment that was
inconsistent with the impartial* performance of the judge's adjudicative duties. The language of paragraphs 3B(10) and 5A(3)(d) is necessary, as disqualification provisions alone may not
sufficiently protect those interests.