Judge Douglas Mattson, Chair
Bill Neumann, Executive Director, State Bar Association
It was moved by John Mahoney, seconded by Judge Anderson, and carried that the minutes be approved.
Canon 5 Subcommittee Report and Amendments
Judge McCullough, Chair of the Subcommittee, summarized the task assigned to the Subcommittee, which was to consider possible amendments to Canon 5 provisions that may be affected by the 8th Circuit Court of Appeals 2005 opinion in Republican Party of Minnesota v. White. He said the Subcommittee sought to retain as much of the current canon language as possible but still address the failings of similar Minnesota provisions found in the 8th Circuit opinion. He noted that one principal constitutional defect addressed by the 8th Circuit opinion was that of underinclusiveness, i.e., the Minnesota Canon 5A prohibition against seeking or accepting endorsements applied narrowly to political parties but did not apply to many other kinds of entities that might make endorsements. He explained that the 8th Circuit also found it unconstitutional to prohibit candidates from soliciting support from large groups or soliciting support or contributions through the use of documents bearing the candidate's signature or a mechanical reproduction of the signature.
Judge McCullough then reviewed Attachment C (February 10, 2005) - draft amendments to the Terminology Section and Canons 5A(1) and 5C(2) prepared by the Subcommittee. [Staff note: All following references to page and line numbers are with respect to Attachment C.]
Judge McCullough said the amendments to the Terminology Section are the first step in addressing the problem of underinclusiveness and would expand the current definition of "political organization" to encompass more groups than political parties. Particularly, he said, the amended definition would also include any group a principal purpose of which is to support or oppose the continuation, amendment, repeal, enactment, initiative, or referendum of any constitutional, statutory, or regulatory provision. He said an exception is provided for groups comprised of judges, attorneys or law students. He said the exception was included to ensure judges could continue membership in the District Judges Association, which sometimes seeks legislative changes concerning judge salaries. The exception also includes the State Bar Association and the American Bar Association as examples of groups that would not be considered political organizations. He explained further that the draft commentary language provides various factors to be considered in determining whether a group should be considered a political organization.
With respect to the draft amendments to Canon 5A(1), Judge McCullough said the expanded approach to the meaning of political organization is applied by amending Section 5A(1)(d) to prohibit seeking or accepting an endorsement or letter of support from a political organization, rather than political party. He said Section 5A(1)(f) is similarly amended to prohibit, with an exception, purchasing tickets for or attending political gatherings or events sponsored by a political organization or candidate for political office. The exception, he said, recognizes that Section 5C(1)(a) permits a candidate to speak on the candidate's own behalf at gatherings sponsored by a political organization. He explained that several paragraphs were added to the commentary in explanation and support of the amended language. He said the language added to the commentary was adapted from a variety of sources: the Final Report of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct, various references from the state constitution, and a recent law review article discussing partisan activities in light of the 8th Circuit's White opinion. He noted particularly that paragraph  explains the significance of judicial independence as a compelling state interest and paragraph  incorporates state constitutional provisions that illustrate the basis for the compelling interest. He said language in paragraphs  -  are adapted from the ABA Joint Commission's Final Report. He said paragraph , also from the Joint Commission's Final Report, explains that a candidate is prohibited from filling out a questionnaire if the candidate knows, or has reason to know, that the questionnaire will be used by an organization to decide whom to endorse. The provision, he said, is a recognition of the prohibition in Section 5A(1)(d) and illustrates that a candidate cannot accomplish indirectly what Section 5A(1)(d) prohibits directly.
With respect to paragraph , Justice Sandstrom asked whether the restriction would apply to questionnaires distributed, for example, by newspapers for purposes of deciding which candidate to endorse. Judge McCullough responded that a newspaper likely would not be considered a "political organization" but a factual determination on the question may be required. Judge Clapp observed that in past instances questionnaires were distributed and it was not clear whether responses would be used for purposes of endorsement. Judge McCullough said that in those circumstances he would likely inquire of the organization whether the questionnaire results would be used for endorsement purposes. Sen. Lee observed that she generally does not complete questionnaires and candidates for judicial office should probably be released from any obligation to respond to questionnaires. John Mahoney noted that a candidate is not required to respond to questionnaires and paragraph  provides a good rationale for not responding. He agreed that contacting the particular organization to determine the purpose of a questionnaire would be a good practice.
Bill Neumann noted that paragraph  discusses questionnaires being used for purposes of endorsement, while Section 5A(1)(d), to which the paragraph is linked, also prohibits seeking or accepting letters of support. He asked whether paragraph  should be modified to also refer to letters of support. Judge McCullough agreed the change should be made.
Continuing with his summary of the draft amendments, Judge McCullough noted that paragraph  in the commentary following Section 5A(3), which was added recently by the Supreme Court and reflected the filing of the petition for writ of certiorari concerning the 8th Circuit decision, would be deleted as no longer necessary since the U.S. Supreme Court denied the petition. Turning to Canon 5C(2) regarding solicitation, Judge McCullough said the principal amendments are set out at page 9, lines 16-21, which would permit a candidate to solicit contributions and support from large groups or organizations and would permit the candidate's signature or a mechanical reproduction of the signature to appear on letters or other printed material soliciting contributions or support. These changes, he said, closely follow the 8th Circuit decision with respect to what might be considered permissible "faceless" solicitations for contributions or support. He said amendments to the opening sentences of Section 5C(2) [page 9, lines 9-10] clarify that a candidate is prohibited from "directly and personally" soliciting and accepting contributions or publicly stated support. He said language is added to the commentary to explain the limitation on solicitation by direct, personal contact and the objective of guarding against allegations of bias or lack of impartiality based on personal involvement in soliciting contributions or support.
Judge Severin noted that the amendments in the first sentence to Section 5C(2) provide that a candidate cannot directly and personally solicit contributions, but the first sentence of the amendments mid-paragraph provides that a candidate "generally" may not solicit contributions and support; an exception permitting some kinds of solicitation then follows. He suggested the relationship between the prohibition and the limited exception is not entirely clear.
Judge Mattson suggested a reference to email be included in the language permitting use of the candidate's signature on letters or other printed material. Judge McCullough agreed.
Dan Dunn observed that it is unclear what would constitute a "large" group or organization [page 9, line 18]. Additionally, he said the previously noted reference to a candidate "generally" not being permitted to personally solicit contributions is confusing in meaning and application. He suggested deleting the reference to "generally" [page 9, line 16] and tracking the language in the opening sentence amendments, i.e., a candidate
generally may not directly and personally solicit contributions ... ." The change, he said, would provide consistency in describing the general prohibition and the limited exception.
Judge Clapp wondered whether the prohibition against direct and personal solicitation would also prohibit a candidate from appearing before large groups or organizations for purposes of soliciting contributions or support. Judge McCullough responded that in his estimation the prohibition against direct and personal solicitation is directed at solicitation that is focused on individuals or small groups to the extent that the individual identities of the contributors or supporters are known to the candidate. He said the coercive effect potentially associated with solicitations directed towards individuals or very small groups is likely much less of an issue when the candidate is addressing a large group. John Mahoney noted that the language in the commentary explains the objective of lessening the opportunity for direct contact with individual contributors.
Sen. Lee asked whether there is any difficulty posed if the candidate appears before a small group comprised of members of a much larger group. Judge McCullough said the important factor would be the size of the group before which the candidate appears.
After further discussion, it was moved by Judge McCullough, seconded by John Mahoney, and carried that the underscored language on page 9, line 16, be modified to read "While a candidate may not directly and personally solicit ...", which would make the changes previously suggested by Dan Dunn.
Joe Larson asked whether the first sentence of Section 5C(2) [page 9, lines 9-10] should be modified to make clear that the prohibition against direct and personal solicitation applies to solicitation of individuals. Judge McCullough responded that a candidate who appears before a large group and asks for contributions may be considered as, in effect, soliciting contributions from individuals in the group, rather than soliciting a contribution from the group as a whole. He said an explicit prohibition against soliciting contributions from individuals may have the unintended consequence of preventing solicitations in a large group setting. Joe Larson said it is unclear how a request for contributions directed to a group could be considered an individual solicitation.
(At this point, Joel Fremstad excused himself from the meeting to attend to a previously scheduled court hearing.)
Dan Dunn observed that the commentary addresses the prohibition's focus on face-to-face, individual contacts for purposes of soliciting contributions or support, as opposed to looking out over a sea of faces and asking for contributions or support.
Justice Sandstrom noted the language on page 9, line 18, concerning permissible solicitation of contributions or support from "large groups or organizations." He wondered whether a qualifier such as "other than political organizations" should be added to recognize the general prohibition against endorsements or expressions of support from political organizations. Judge McCullough suggested as a possible alternative replacing "from large groups or organizations" with "in front of large groups or organizations" and then adding language in the commentary concerning the prohibition under Section 5A(1)(d) against seeking or accepting endorsements or letters of support from political organizations.
Lisa McEvers asked whether a candidate appearing before a political organization, such as a political party event, would be prohibited from receiving contributions from the party or from individuals present at the event, or both. Judge McCullough said a candidate could receive contributions from individuals and Section 5A(1), either in its current form or as amended, would not appear to prevent receiving contributions from the party.
Following discussion, it was moved by Judge McCullough, seconded by Dan Dunn, and carried that page 9, line 18, and the commentary be modified in the manner previously described.
In response to an earlier observation by Judge Mattson concerning email communications, Judge McCullough suggested that page 9, line 19, be modified to delete the reference to "mechanical" with respect to reproductions of candidate signatures and that page 9, line 20, be modified to include a reference to electronic, as well as printed, material that can be distributed by a candidate committee for purposes of soliciting contributions or support.
It was moved by Judge McCullough, seconded by John Mahoney, and carried that page, lines 19 and 20, be modified as described.
Chair Mattson then requested discussion or motions concerning further changes to the draft commentary language.
Lisa McEvers noted commentary language that reiterates the canon language changed in the previous motion. She suggested the commentary language should be modified to reflect the new canon language.
It was moved by Judge Anderson, seconded by Lisa McEvers, and carried that page 10, line 4, be modified to delete "mechanical" and to insert "or electronic" after "printed".
Chair Mattson next requested further discussion concerning the draft amendments regarding the definition of "political organization" [Attachment C, page 1].
Referee Freed noted the exception concerning entities comprised of judges, attorneys, or law students. He wondered whether the exception would allow a political action committee comprised only of attorneys to engage in activities with respect to candidates for judicial office that would otherwise be prohibited for a political organization. Judge McCullough said the objective of the exception language was to enable judges and attorneys to continue to participate in groups such as the District Judges Association and the State Bar Association, which arguably would not be permissible if the associations were considered "political" organizations. He said the language admittedly attempts to strike a balance but, absent a detailed listing of potential organizations, it is unclear how a more refined approach could be structured.
John Mahoney recognized the possibility that a group of lawyers might organize based on a particular political issue and engage in related lobbying activities, but suggested the possibility is unlikely. Referee Freed agreed the situation may never arise but the language seems to permit it.
Staff suggested one approach might be to modify the exception language to clarify that the excepted groups are groups whose principal purpose is other than the purpose identified in the definition for political organizations.
Lisa McEvers wondered whether the category of excepted organizations could be limited to those comprised only of judges. Alternatively, she suggested the language could be revised to explicitly state what organizations judges and others can belong to rather than referring generally to "any association or entity" comprised of judges, attorneys, or law students and providing non-exclusive examples.
Justice Sandstrom suggested referring simply to "any bar or judges association". Dan Dunn said he would support that simpler approach, which would recognize legitimate activities of such associations rather than focusing on the political arm, if there is one, of the organization. Judge McCullough observed that such a general reference may not address Referee Freed's earlier question concerning lawyer political action committees, but that is a concern that may be difficult to address in any event.
Bill Neumann suggested the possibility of modifying the exception language to, in essence, repeat the earlier language pertaining to activities that define an entity as a political organization and then clarifying that an association or entity to which the exception applies would be one whose principle purpose is other than engaging in such activities. Judge Severin asked whether the suggested language would address the issue of underinclusiveness.
Judge McCullough said it is likely unnecessary to retain the reference to law students in the exception language since the American Bar Association, which is identified, has a law student section.
Following discussion, it was moved by Referee Freed and seconded by John Mahoney that the exception language be modified to read as follows: "Political organization" does not include any association or entity composed of active or retired judges or attorneys whose principal purpose is other than to further the election or appointment of candidates for legislative or executive office or to support or oppose the continuation, amendment, repeal, enactment, initiative, or referendum of any constitutional, statutory, or regulatory provision. Examples of such associations or entities include the North Dakota Judges Association, the State Bar Association of North Dakota, and the American Bar Association."
Justice Sandstrom observed that a major activity of the Judges Association is to hire a lobbyist for the purpose of lobbying for changes in judge compensation and benefits and to also lobby in support of legislative changes considered important to the effective administration of the judicial branch. He said such activity may conflict with language defining an excepted association as one whose principal purpose is other than seeking changes to statutory provisions. Bill Neumann suggested one method of addressing the issue could be to delete the reference to "statutory" provisions in the exception. Judge McCullough said doing so may create a potential problem in allowing only certain associations to lobby for statutory changes and not be considered a political organization. Justice Sandstrom suggested that, given its responsibilities and composition, the Judicial Conference should also be added to the list of excepted entities.
After further discussion, the motion was withdrawn with the consent of the second.
Justice Sandstrom said a preferable approach may be to identify specifically the entities that would not be considered political organizations, followed by a general reference to any other organization whose principal purpose is other than engaging in the activities linked to political organizations.
For purposes of discussion, it was moved by Judge McCullough and seconded by John Mahoney that the exception language be modified to read as follows: "Political organization" does not include the North Dakota Judges Association, the North Dakota Judicial Conference, the State Bar Association of North Dakota, the American Bar Association or any other group whose principal purpose is other than to further the election or appointment of candidates for legislative or executive office or to support or oppose the continuation, amendment, repeal, enactment, initiative, or referendum of any constitutional, statutory, or regulatory provision."
Joe Larson said the language concerning "any other group" would extend the exception to any organization, rather than a bar association or other group composed of judges or attorneys. Judge McCullough agreed.
With the consent of the second, the motion was amended to replace "any other group" with "any association or entity composed of active or retired judges or attorneys."
Paul Ebeltoft asked why the American Bar Association is specifically identified. Judge McCullough said many judges are members of the ABA's judicial division and likely would want to continue to participate.
The motion, as amended, carried.
Chair Mattson then requested discussion of the draft commentary language on page 1.
It was moved by Judge McCullough, seconded by Referee Freed, and carried that "primary" be replaced with "principal" in the first sentence of the draft commentary.
It was moved by Judge McCullough, seconded by John Mahoney, and carried that the draft commentary, as modified, be approved.
Chair Mattson next requested discussion of the draft amendments to Section 5A(1)(d) and (f ) [page2].
Referee Freed drew attention to the amendments on page 2, line 15, regarding the prohibition
against purchasing tickets for or attending an event sponsored by "a candidate for political office".
He wondered whether there may be some confusion if the reference to "political" were construed as applying to a judicial office. He said it would be clearer to explicitly refer to legislative or executive offices.
It was moved by Referee Freed, seconded by Judge McCullough, and carried that page 2, line 15, be modified to replace "political" with "legislative or executive".
Referee Freed said the League of Women Voters likely would be considered a political organization and, if so, candidates would be prohibited from attending meetings sponsored by the League. Judge McCullough noted that Section 5C(1)(a) allows a candidate to attend a gathering and speak on the candidate's own behalf even if the gathering is sponsored by a political organization. In response to a question from Referee Freed, Judge McCullough said a candidatevcould attend the gathering and speak on the candidate's own behalf but could not simply attend for purposes of being present and otherwise participating. He said the principal objective of the various amendments is to separate the political and judicial election processes and thereby serve the interest in judicial independence. He said if the League of Women Voters sponsors a forum it is probable that it will be attended by candidates for political office and attendance by a candidate for judicial office other than for the purpose of speaking on the candidate's own behalf could be viewed simply as political activity.
Dan Dunn drew attention to the reference to "gatherings or other events" on page 2, line 14, and wondered whether it is necessary to refer specifically to gatherings. He said the meaning of event would likely encompass whatever might be considered a gathering. Judge McCullough said the reference to "gatherings" reflects current canon language.
It was moved by Dan Dunn and seconded by John Mahoney that page 2, line 14, be modified to delete "gatherings or other".
Lisa McEvers asked whether a more specific meaning may be attributed to "event", such as a picnic or dinner, which might not encompass something like a regular monthly meeting of an entity.
Judge Clapp observed that Section 5C(1)(a) also refers to "gatherings".
After further discussion, the motion was withdrawn with the consent of the second.
Chair Mattson next requested discussion of the draft amendments to the commentary following Section 5A(1) [pages 2-4].
Referee Freed noted the references in paragraph  (page 2, lines 21-22) to "undue" political influence and "inappropriate" political pressure. He said the language implies there are such things as acceptable or appropriate political influence or pressure. Judge McCullough said the language reflects language contained in the Final Report of the ABA Joint Commission.
With respect to paragraph , Sen. Lee drew attention to the language on page 3, line 4, regarding the judiciary acting as a check on the "other, political" branches and suggested the comma was unnecessary. Judge McCullough said there may be an inference, without the comma, that the judiciary is simply another kind of political branch of government.
Following discussion, it was moved by Judge McCullough, seconded by Sen. Lee, and carried that "other, political" be replaced with "legislative and executive".
As a point of clarification, Judge Anderson noted alternative amendments in Attachment D (February 10, 2005), which would simply delete from Section 5A(1) the provisions similar to the Minnesota canons found unconstitutional by the 8th Circuit. He asked whether the Committee has impliedly concluded, in its consideration of the Attachment C amendments, that the Attachment D amendments will not be considered. He said he prefers the amendments, and subsequent changes, set out in Attachment C. Dan Dunn agreed
It was moved by Judge Anderson, seconded by Dan Dunn, and carried that the Committee not consider the Attachment D amendments.
Committee members then returned to discussion of the draft commentary language. With respect to paragraph , Referee Freed suggested including, as a further illustration of the state's compelling interest in the various restrictions on election activity, information concerning judicial caseloads, the frequency of recusals, and the history of non-partisan elections in North Dakota. Judge McCullough said the hearing before the Supreme Court on the proposed amendments may be the better venue to present such information.
With respect to paragraph , Lisa McEvers drew attention to the language on page 3, lines 23-24, which discusses sitting judges and candidates being able to register to vote as members of a political party. She said the Subcommittee discussed the language but its purpose remains unclear. Justice Sandstrom said the language likely does not apply well in North Dakota, which does not have voter registration. John Mahoney said the language may serve some future purpose if voter registration is ever adopted in the state. Justice Sandstrom observed that the clause with the noted language may be superfluous to the purpose of the sentence, which appears to simply explain that judges and candidates are prohibited from assuming leadership roles in a political organization.
After further discussion, it was moved by Judge McCullough, seconded by judge Anderson, and carried that the clause relating to judges and candidates registering to vote as members of a political party [page 3, lines 23-24] be deleted.
With respect to paragraph , Lisa McEvers suggested the reference to "however" on page3, line 30, adds nothing to the sentence and should be deleted. Committee members agreed.
There were no suggested changes to paragraphs , , and .
Judge Anderson drew attention to paragraph  (page 4, lines 19-21), which discusses the prohibition against a candidate completing a questionnaire if the candidate knows or has reason to know that the purpose of the questionnaire is to decide who to endorse. Recalling earlier discussion, he suggested line 21 should be modified to reflect the decision is with respect to whom to endorse or support. Judge McCullough said the language should track the prohibition in Section 5A(1)(d), which refers to providing an endorsement or "letter of support".
It was moved by Judge Anderson, seconded by John Mahoney, and carried that paragraph  (page 4, line 21) be modified to insert "or provide a letter of support" after "endorse".
There were no further suggested changes to the draft amendments.
It was moved by Judge McCullough, seconded by John Mahoney, and carried that the draft amendments to the Terminology Section, Section 5A(1)(d) and associated commentary, and Section 5C(2) and associated commentary, as further modified, be approved and recommended to the Supreme Court for its consideration.
Committee members agreed the next meeting would be at the call of the Chair.
There being no further business, the meeting was adjourned at 12:30 p.m.