Judge Douglas Mattson, Chair
Bill Neumann, Executive Director, State Bar Association
Chair Mattson called the meeting to order at 12:00 noon and drew Committee members' attention to the minutes of the December 16, 2005 meeting, which were distributed by email. It was noted that Judge Anderson should have been reflected as absent from the meeting.
It was moved by Wayne Sanstead, seconded by Referee Freed, and carried that the minutes, as corrected, be approved.
Chair Mattson said the principal issue for discussion is the 8th Circuit Court of Appeals 2005 opinion in Republican Party of Minnesota v. White and whether the opinion requires changes to Canon 5 of the Code of Judicial Conduct. The opinion, he said, invalidated on constitutional grounds Minnesota ethical provisions essentially similar those set out in Canon 5A(1)(d) and (f) and Canon5C(2). He noted that a petition for a writ of certiorari has been filed with the U.S. Supreme Court and the initial question, briefly discussed at the last meeting, is the extent to which the 8th Circuit opinion is considered binding precedent while the petition is pending.
Staff said research disclosed court opinions that discuss the binding nature of court of appeals decisions on state appellate courts but do not offer clear direction. He noted a 1968 opinion of the 8th Circuit Court of Appeals, Glick v. Ballantine Produce, Inc., 397 F.2d 590,594, which offered the following observation: "We find no support for the contention that the filing of a petition for a writ of certiorari prevents the judgment of this court from becoming final until the Supreme Court acts upon the petition where no stay of mandate has been filed under 28 U.S.C.A. § 2101(f)."
Justice Sandstrom distributed information collecting court opinions that indicate some state appellate courts have opined that court of appeals decisions will be followed, while others have found such opinions to be only persuasive. He said the U.S. Supreme Court has apparently not directly addressed the issue.
Judge Anderson observed that the better course would likely be to treat the 8th Circuit opinion as binding, but at a minimum it should be considered persuasive. Joel Fremstad said he would find it difficult to conclude that a court of appeals decision on a matter of federal constitutional law could be considered anything other than binding.
Judge McCullough said the issue may be one of timing, i.e., whether there is time to carefully consider changes, if necessary, because the opinion may only be persuasive or whether changes must be made quickly because the opinion is binding. He said his preference would be to take the time to carefully consider any changes because of the importance of the issues involved. Additionally, he said there may be more options to consider with respect to candidate affiliation with political organizations then were available when addressing issues concerning the pledges, promises, and commit clauses.
Judge Mattson noted that the Supreme Court, in adopting the amendments previously submitted by the Committee, did include language in the commentary to Canon 5A concerning the 8th Circuit Court of Appeals opinion and the fact that a petition for writ of certiorari had been filed.
Judge McCullough observed that another difference in the current situation, as opposed to the Committee's earlier consideration of the pledges, promises, and commit clauses, is that the federal district court in Bader had specifically ruled that those clauses were unconstitutional, whereas there is no direct court ruling on the validity of North Dakota provisions concerning partisan political activity and solicitation of contributions. Consequently, he said it is likely not necessary to make a final decision today on canon changes. It will be a different matter, he said, if the U.S. Supreme Court denies the petition.
Chair Mattson requested comments regarding issues and information that would require specific attention if the Committee were to take additional time to review any possible changes.
Judge McCullough suggested that the Committee review changes proposed by the ABA Joint
Commission to Evaluate the Model Code of Judicial Conduct, as well as the draft amendments set out in Attachment C (January 6, 200
5 6 ). He suggested the Committee should consider the option of saving as much of the current canons as possible. He noted that the 8th Circuit opinion found
under-inclusiveness to be one of the principal failings of the Minnesota provisions, that is, candidates were restricted from participating in political party activities but were not similarly restricted from
participating in other kinds of "political" activity. One option, he said, might be to make the current provisions more restrictive, more inclusive by extending their application beyond political parties and addressing other kinds of special interest groups.
Judge Anderson suggested that the Committee consider amendments in deference to the 8th Circuit opinion but which are as narrowly directed in scope as possible. There was general Committee agreement.
Committee members then generally discussed issues concerning endorsements of candidates for judicial office by political parties or other political groups.
Joel Fremstad said it is important to limit political activities by candidates for judicial office and do so in a way that supports significant interests in judicial independence and impartiality.
Sen. Lee observed that even though she has studied the different methods for selecting judges and is generally familiar with candidates who have run for office in her area, it remains difficult to gain any particular knowledge about a candidate. The challenge, she said, is how to facilitate the electorate's ability to obtain useful information about judicial candidates. She said it is not clear that a party endorsement of a candidate would serve a useful purpose, but it is also unclear that such an endorsement would have undue influence on a candidate. The final goal, she said, is a process that will not result in undue influence on candidates or candidates being expected to indicate how they will decide cases, but which will provide sufficient information to the public so that an informed decision can be made about a candidate. Additionally, she said it would be helpful if candidates for judicial office and incumbent judges could participate as observers in certain political functions. She said there are separate issues to consider in deciding whether candidates or judges should participate as delegates or as part of political organization decision-making.
John Mahoney said he would prefer that judicial races not become political in nature. Judge Severin agreed that politics should be kept out of elections for judicial office.
Judge McCullough said increased involvement of special interest groups may be an equal or greater concern than involvement by political parties. He noted that during the 2004 elections for members of state supreme courts, 89% of negative advertisements during those elections were purchased by special interest groups as well as parties. He said judicial candidates tend not to purchase advertisements against opposing candidates.
Sen. Lee agreed about the impact of special interest groups and noted the aggressiveness with which some groups expect candidates to respond to questionnaires. She said endorsements by organizations should not be expected but it would be helpful if a candidate for judicial office could speak to various groups as a means of providing information about the candidate.
Judge McCullough noted that a candidate for judicial office is permitted by Canon 5C to speak to organizations on the candidate's own behalf even if the organization is political in nature.
Rep. Hawken observed that political party endorsements sometimes make no difference and sometimes can be regarded as a negative. She agreed the crux of the issue is how to allow candidates to prove to the public that they are qualified to hold judicial office.
Sen. Lee and Joel Fremstad had to leave the meeting at 1:00 p.m.
Judge McCullough explained that polls conducted in states that have partisan judicial elections indicated that a substantial majority of poll respondents regarded party affiliation as the most important consideration in voting for a judicial candidate.
Dan Dunn agreed there is a concern about party affiliation and the tendency of some to simply vote based on party affiliation. He said it is important to maintain a no-party affiliation for judge elections.
Judge Clapp agreed the public should learn more about candidates for judicial office but said political endorsements are not the way to achieve that objective.
Chair Mattson said there appeared to be a general consensus that changes should be made to Canon 5 in response to the 8th Circuit opinion but that candidates for judicial office should not be able to engage in clearly political activity, such as seeking endorsements by political organizations.
Lisa McEvers suggested a subcommittee might be the best way to develop proposals for review by the full Committee.
In response to a request by Chair Mattson for volunteers, Judge McCullough, Lisa McEvers, and John Mahoney agreed to serve on a subcommittee. Joel Fremstad was also selected to serve as a subcommittee member. Judge McCullough will serve as Chair.
Committee members agreed the next meeting of the full Committee will be Friday, February 17, at which time the subcommittee will present its proposed draft amendments.
There being no further business, the meeting was adjourned at 1:15 p.m.