Judge Douglas Mattson, Chair
Rep. Kathy Hawken
Chair Mattson called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment A (January 7, 2008) - minutes of the September 7, 2007 meeting.
It was moved by Justice Crothers, seconded by Referee Portscheller, and carried that the minutes be approved.
Review of (Annotated) Model Code Canon 2
Chair Mattson first drew attention to Attachment C and D (December 18, 2007) - respectively, Conference of Chief Justices Resolutions recommending amendments to Canon 2 rules ("CCJ amendments") and draft amendments to Canon 2 rules proposed by Montana Chief Justice Carla Gray which address assistance to pro se litigants ("Gray amendments"). He asked that Committee members consider each proposed amendments as the relevant Canon 2 rule is reviewed.
Justice Crothers noted that task forces in Minnesota and Oklahoma have completed proposed revisions to their state codes of judicial conduct and he would note relevant revisions to those codes as the Committee reviews related rules.
Committee members then turned to review of the Canon 2 rules.
Rule 2.1 - (Giving Precedence to the Duties of Judicial Office). Staff explained that Model Rule 2.1 is largely a restatement of current ND Canon 3A, except for using a more specific reference to "personal and extrajudicial" activities rather than the Canon 3A reference to "other" activities.
There were no changes to Rule 2.1
Rule 2.2 - (Impartiality and Fairness). Staff said the Reporter's Explanation indicates that Rule 2.2 is a reflection of, but not a verbatim restatement of, the general content of Canon 3B(2) and (8). He said the model rule requirement that a judge "uphold and apply the law", rather than be "faithful" to the law, was considered a clearer emphasis on the essential point that a judge should interpret and apply the law. He noted the Gray amendments in Attachment D (December 18, 2007), which would add language to the rule and delete language from the rule's comment. The proposed additional language emphasizes that a judge's nonprejudicial steps to provide pro se litigants the opportunity to have their cases fully heard do not raise a reasonable question about the judge's impartiality.
Justice Crothers noted that the Gray amendments were submitted as part of the ABA Joint Commission's review of the Model Code. He said his recollection was that the study group was generally reluctant to begin carving out exceptions to code provisions for specific groups of litigants.
Joel Fremstad said the better course may be to retain the language in the Comment relating to self-represented litigants, which the Gray amendments would delete, and consider whether to add additional language when the Committee reviews the Comment later in the process.
After further discussion, it was moved by Joel Fremstad, seconded by Paul Ebeltoft, and carried that the issue be reserved for discussion when the Comment is reviewed.
There were no changes to Rule 2.2.
Rule 2.3 - (Bias, Prejudice, and Harassment). Staff noted that Rule 2.3 is very similar to ND Canon 3B(5) except that the model rule refers to "duties of judicial office" while the ND Canon refers to "judicial duties". He said the model rule change to "duties of judicial office" was intentional and is meant to emphasize that the rule's application extends beyond adjudicative functions to reach more of the responsibilities that accompany judicial office. He said Rule 2.3(B) and ( C) are similar to ND Canon 3B(5) and (6) except for the additional inclusion of gender, ethnicity, marital status, and political affiliation. Additionally, he said Rule 2.3(A) and (B) refer generally to "harassment", rather than "sexual" harassment, as a reflection of the intention that the model rule address other forms of harassment.
With respect to protected categories reflected in Rule 2.3(B), Lisa McEvers wondered whether "sexual orientation", which is included in the existing ND Canon, should be defined. She noted that some state human rights acts include transgendered individuals under the category of "sexual orientation". Staff said the Reporter's Explanation indicates that "gender" was added as a category in Rule 2.3 with the intention that it include transgendered individuals.
Linda Bata said Rule 2.3(B) includes a laundry list of factors that are prohibited bases of bias or prejudice and wondered whether it would be worthwhile instead to follow language in state law, i.e., the ND Human Rights Act, which describes state policy with respect to discrimination. Judge McCullough said there is more value in following the model rule approach because statutes establish minimum obligations concerning conduct while rules for judges more broadly govern the ethical conduct of judges in the treatment of litigants, lawyers, and others in the judicial system and process. Justice Crothers agreed the rules, and the present ND canons, impose restrictions on judges that are greater than those otherwise imposed by statutes. Additionally, he emphasized that, as a general matter, following model rule language is advantageous in that judges and the judicial discipline system benefit from ethical opinions and adjudications in other jurisdictions that adopt similar rules. Judge Anderson observed that making a change with respect to the attributes listed in Rule 2.3(B) may have the unintended consequence of suggesting that a deleted attribute was not considered significant or worthy of protection.
Following further discussion, there were no changes to Rule 2.3(A).
Justice Crothers drew attention to Rule 2.3( C), which provides that a judge shall require lawyers in proceedings before the court to refrain from manifestations of bias or prejudice. He said both paragraph ( C) and paragraph (B) use the phrase "including but not limited to" when beginning the list of attributes, while Rule 2.3(D), which addresses the "legitimate advocacy" exception refers back to the "listed factors, or similar factors". He said there appears to be something of a disconnect between the internal references, with one implying there is a "list" while the other indicates the factors described are non-exclusive, i.e., "including but not limited to".
Staff noted that Rule 2.3(D) is different from its North Dakota counterpart language in Canon 3B(6) in that it generally and inferentially refers back to the factors set out in paragraphs (B) and ( C), while current language in Canon 3B(6) reiterates all the factors when describing the legitimate advocacy exception. Additionally, he said, Rule 2.3(D) includes judges, as well as lawyers, when describing the allowance for reference to an otherwise prohibited factor when it is relevant to a proceeding.
Judge McCullough said the language in Rule 2.3(D) ["paragraphs (B) and ( C) do not preclude judges or lawyers from making ... reference"] is also somewhat inapposite because the ethical rules for judges cannot prohibit lawyers from doing anything. The rules, he said, impose a duty on judges to control the conduct of lawyers. Nevertheless, he said the language is not so different that it should require diverging from the model rule.
Judge Clapp noted the different construction in Rule 2.3(A), which requires ("[a] judge shall") the judge to perform the duties of judicial office without bias or prejudice, and Rule 2.3(B), which provides that the judge "shall not" manifest bias or prejudice in the performance of judicial duties.
Staff drew attention to the overarching language of Canon 2, which provides that "a judge shall perform the duties of judicial office impartially, competently, and diligently". He said the Reporter's Explanation describes Canon 2 as the heart of the model code in that it governs core judicial functions: adjudicative, administrative, disciplinary, and reporting. He reiterated that the use of "duties of judicial office" is intended to encompass all of those core functions. He said there may be a difference, then, between Rule 2.3(A), which, in using "duties of judicial office", may be intended to address all of the core functions, and Rule 2.3(B), which requires a judge not to manifest bias while performing "judicial duties" and which may have a narrow application to adjudicative duties. He said it is unclear whether different references were intentional or were simply drafting oversights.
Judge McCullough said he would consider "judicial duties" as referring to both adjudicative and administrative duties. Otherwise, he said, "adjudicative duties" would be used as an alternative reference when applying only to judicial conduct in the courtroom.
Linda Bata noted the provision in Rule 2.3(B) which requires the judge to control the conduct
of court staff, court officials, and others subject to the judge's control. That, she said, appears to be
an administrative function, which would be at odds with the notion that the reference to "judicial
duties" means only adjudicative duties.
Judge McCullough said the phrases are not used consistently within the rules. For example, he said, Rule 2.5(A) requires a judge to perform "judicial and administrative duties" competently and diligently. He said it may be preferable, if it is deemed necessary, to clearly distinguish between "duties of judicial office" and "judicial duties", if those phrases are to be used broadly to describe all judicial functions, and use, for example, "adjudicative duties" or "administrative duties" if the specific focus is narrower. Particularly, he said the question for the Committee is whether there is a need to make clear in Rule 2.3(B) whether the reference to "judicial duties" means adjudicative duties or the more general duties of judicial office. He said he would favor the latter general meaning. Justice Crothers agreed.
It was moved by Judge McCullough and seconded by Linda Bata that "judicial duties" in Rule 2.3(B) be replaced with "the duties of judicial office".
Paul Ebeltoft observed that there are differing references in the model code to judicial duties, duties of judicial office, as well as references to particular activities with respect to which it is not clear whether they are "judicial" duties or "administrative" duties. He said the Committee should be aware of the references and consider whether differences in meaning are intended. Judge McCullough asked that staff review code provisions for references to judicial duties, in whatever form, and bring them to the Committee's attention when they appear.
Joel Fremstad asked whether a specific reference to "administrative duties" should be included where appropriate, such as in Rule 2.3(A), if the broader reference to "duties of judicial office" is to be used. Judge McCullough responded that if the Committee concludes that "duties of judicial office" is intended to mean all duties, as the Reporter's Explanation suggests, then a specific reference to "adjudicative duties" or "administrative duties" could be used elsewhere only if a narrower application is desired in a particular provision.
Joel Fremstad asked whether the reference to "including administrative duties" should be included in Rule 2.3(B) as it is included in Rule 2.3(A). Otherwise, he said, it could be argued that the direction against the manifestation of bias or prejudice in Rule 2.3(B) does not include a judge's administrative functions.
The motion carried.
Paul Ebeltoft suggested a definition of "duties of judicial office" should be included in the
Terminology section indicating the phrase has the broader meaning indicated in the Reporter's
Explanation. Joel Fremstad suggested adding to the definition "or any other duties prescribed by
law" as a catch-all. Judge McCullough emphasized that if the definition is included, the Committee
must review each subsequent reference to "duties of judicial office, "judicial duties", or a similar
reference to determine if a narrow application, e.g. "adjudicative" or "administrative" is intended.
Staff explained that Model Rule 2.3(B) is largely a restatement of a portion of ND and 1990 Model Canon 3B, which addressed a judge's adjudicative responsibilities. He said similar language is repeated in ND and 1990 Model Canon 3C, which addressed a judge's administrative responsibilities. The question, he said, is whether 2007 Model Rule 2.3, in combining certain provisions from the earlier code, is clear whether a broader or narrower meaning of "duties of judicial office" is intended in particular instances. Judge McCullough said it appears the usage in the model rule is simply imprecise and inconsistent. He noted Rule 2.5(A), which refers to "judicial and administrative duties" as an example of uncertain meaning.
It was moved by Paul Ebeltoft, seconded by Linda Bata, and carried that a definition of "duties of judicial office", as previously described, be included in the Terminology section.
It was moved by Joel Fremstad, seconded by Linda Bata, and carried that "including administrative duties" be deleted from Rule 2.3(A) as an unnecessary reference in light of the new definition.
Lisa McEvers drew attention to the proposed Gray amendment in Attachment D (December 18, 2007) which would add a new paragraph (E) to Rule 2.3 and provides that a judge is not precluded from taking discretionary, nonprejudicial steps to enable a self-represented litigant to be heard. She wondered what the particular intent and meaning of the proposed paragraph might be. Judge McCullough said his particular concern with the proposed language is that explaining things to a self-represented litigant may result in a bias in favor of the litigant. Committee members agreed the proposed amendment should be reserved for further consideration when the Comment is reviewed.
There were no changes to Rule 2.3( C) or (D).
Rule 2.4 - (External Influences on Judicial Conduct). Staff said Rule 2.4(A) is essentially the same as part of ND Canon 3B(2) except that Canon 3B(2) includes a reference to "partisan interests" while the model rule does not. He said Rule 2.4(B) is essentially similar to part of ND Canon 2B except that the model rule includes a specific reference to "financial" interests because financial interests were regarded as significant enough to merit specific mention. He said Rule 2.4( C) is similar to part of ND Canon 2B.
There were no changes to Rule 2.4(A).
Linda Bata wondered why Rule 2.4B refers to a "judge's judicial conduct or judgment" rather than to the "duties of judicial office".
Judge Severin suggested "economic interests", which is defined in the Terminology section, should be used instead of "financial interests". Justice Crothers noted that "economic interests" is used in the code primarily in provisions concerning disqualification. Dan Dunn said following the model rule's use of "financial" will enhance the rule's value as guidance because of the ability to rely on interpretations of like provisions in other jurisdictions. He said it may be prudent to adopt a change if particularly necessary but cautioned against considering and changing words or phrases in isolation. Doing so, he said, may result in moving farther from the model rule structure and losing the advantage of general uniformity with rules in other jurisdictions that adopt the model rules.
Lisa McEvers said the reference to financial interests may be intended to relate to personal interests but the general reference may inadvertently limit a judge's ability to consider financial issues, such as the cost of expert witnesses for an indigent in a criminal case, that may be pertinent. Judge Clapp agreed financial considerations can become significant factors in certain kinds of cases and a judge often must consider how to balance a financial cost and impact in a case with a defendant's right to adequate representation and defense.
Judge Anderson said if the intent behind the use of "financial" interests is to prevent a judge's personal financial situation from affecting the judge's conduct or judgment, then perhaps the earlier suggested use of "economic interests" is the better alternative.
With respect to the earlier question concerning duties of judicial office vs. judicial conduct and judgment, it was moved by Paul Ebeltoft and seconded by Linda Bata that the reference in Rule 2.4(B) to "judicial conduct and judgment" be replaced with " performance of adjudicative duties."
Linda Bata said the Comment to the rule appears directed at adjudicative duties of the judge. Joe Larson asked whether in referring only to adjudicative duties there is an implication that it is acceptable that a judge permit the various interests to affect the judge's administrative duties. Justice Crothers said he would oppose the motion because the proposed change would change the substance of the rule, rather than clarify it, and the consequences are uncertain.
The motion failed.
It was moved by Judge McCullough, seconded by Joel Fremstad, and carried that "economic" be substituted for "financial" in Rule 2.4(B).
There were no changes to Rule 2.4( C).
Rule 2.5 - (Competence, Diligence, and Cooperation. Staff explained that the Reporter's Explanation indicates the reference in Rule 2.5(A) to "judicial and administrative duties" is intended to apply the provision's requirements to both adjudicative and administrative duties. Staff noted that Rule 2.5(B) is essentially the same as part of ND Canon 3C(1) except that the model rule provides that a judge "shall" cooperate in the administration of court business while the ND canon provides that a judge "should" cooperate.
It was moved by Joel Fremstad, seconded by Linda Bata, and carried that " the duties of judicial office" be substituted for "judicial and administrative duties" in Rule 2.5(A).
There were no changes to Rule 2.5(B).
Staff drew attention to the proposed Gray amendment, which would add a reference to improvements in access to justice to Rule 2.5(B). Committee members agreed consideration of the proposed language would be deferred until the rule's Comment is reviewed.
Rule 2.6 - (Ensuring the Right to Be Heard). Staff said Rule 2.6(A) is the same as the first sentence of ND Canon 3B(7). He said Rule 2.6(B) reflects the general substance of the last sentence in the first paragraph of the Commentary to ND Canon 3B(8). He said the Reporter's Explanation indicates the language was added to the black letter rule to recognize that out-of-court settlements are commonly used but to stress that judges may encourage settlement but cannot coerce parties into settlement. With respect to Rule 2.6(A), he noted the proposed Gray amendment, which would add language indicating a judge may take affirmative, nonprejudicial steps, if considered appropriate, to enable a self-represented litigant to be heard.
Judge McCullough said the proposed Gray amendments for Rule 2.6(A) may be an appropriate addition to the rule. Justice Crothers said the language implies that if a litigant is not self-represented then the judge cannot offer assistance and if the judge did offer assistance it likely would be an ethical violation. He said once a judge begins offering assistance to a litigant the risk of becoming or being perceived as an advocate for that side is real. Notwithstanding those concerns, he noted there are major efforts around the country to provide more assistance to self-represented litigants. Judge McCullough said a significant number of judges are seeing an increasing need to assist self-represented litigants simply to get them through the court process. Justice Crothers said there is also uncertainty about what a "nonprejudicial step" might be. He asked what would be the consequence if a judge assisted a self-represented litigant and the lawyer/client on the other side starts losing the case.
Judge Clapp noted the additional proposed Gray amendment that would add a new paragraph  to the Comment to provide illustrations of what might constitute "affirmative nonprejudicial steps". She said the kinds of activities outlined in the proposed comment seem unbalanced in favor of self-represented litigants.
Linda Bata said the proposed amendments appear directed at enabling the self-represented litigant to be "effectively" heard, which amounts to advocacy on the judge's part, and for that reason she could not support the proposed language.
Dan Dunn said it is one thing for a judge to clarify court procedures or requirements, but entirely different for a judge to tell a self-represented litigant what to ask or how to direct the case.
Following further discussion, there were no changes to Rule 2.6(A) or (B).
Rule 2.7 - (Responsibility to Decide). Staff said Rule 2.7, which applies to deciding cases assigned to the judge, is the same as ND Canon 3B(1) except for the explicit cross-reference to "Rule 2.11 or other law" with respect to disqualification.
Judge McCullough wondered if there was specific need for the cross-reference. Justice Crothers said the model rules located provisions related to disqualification in one place so the cross-reference may serve as a useful starting reference point. He noted the revision to Rule 2.7 proposed by the Oklahoma task force which provides that administrative reassignment for the purpose of judicial efficiency is not prohibited.
There was no changes to Rule 2.7.
Rule 2.8 - (Decorum, Demeanor, and Communication with Jurors). Staff said Rule 2.8(A) is essentially the same as ND Canon 3B(1). He said Rule 2.8(B) is the same as ND Canon 3B(4) except for the included references to "court staff" and " court officials". He said Rule 2.8( C) is essentially similar to ND Canon 3B(11) except that the ND canon adds "but may express appreciation to jurors for their service to the judicial system and the community".
There were no changes to Rule 2.8(A) or Rule 2.8(B).
With respect to Rule 2.8( C), Justice Crothers noted that the revision proposed by the Oklahoma task force would replace "criticize the jurors for their verdict" with "criticize the verdict of the jury", which is a difference in emphasis. He said the task force also proposed adding language similar to the ND Canon expression of appreciation language.
Linda Bata asked whether the ND Canon language could be added to the Comment. Committee members agreed to reserve the question for discussion when the Comment is reviewed.
There were no changes to Rule 2.8( C).
Rule 2.9 - (Ex Parte Communications). Staff said Rule 2.9 reflects in major part the provisions of ND Canon 3B(7).
Joel Fremstad said the addition of "or consider other communications" appears to have created a conflict with the opening paragraph of Rule 2.9(A) as well as making it unclear what kinds of communications are being addressed.
It was moved by Joel Fremstad, seconded by John Mahoney, and carried that the second "consider" in the first line of Rule 2.9(A) be deleted as unnecessary.
Joel Fremstad asked whether there is a structural inconsistency in the reference in the first sentence of Rule 2.9(A) that a judge shall not "initiate" an ex parte communication or other communication "made to" the judge. He suggested deleting "made to the judge". Justice Crothers said the change may affect many different kinds of innocent communications that are "made to" the judge. Lisa McEvers said the problem may be the sequencing in Rule 2.9(A) caused by improperly placed commas. She suggested deleting the comma after "communications" in the 1st line of the opening paragraph. Judge McCullough suggested also deleting the comma after "lawyers" in the 3rd line of the opening paragraph.
It was moved by Paul Ebeltoft and seconded by Joel Fremstad that the commas be deleted from the opening paragraph as described.
In response to a question from Justice Crothers regarding why "or consider other communications" was added to the model rule, staff sheepishly responded that the phrase is not new language. He said the language was inadvertently left unshaded thereby indicating, in error, that it was new language.
Justice Crothers said the interpretation of the paragraph will not be clearer if the commas are deleted. Judge McCullough agreed and said the better change would be to reconsider the motion by which "consider" was deleted from the paragraph.
After further discussion, the motion failed.
It was moved by John Mahoney, seconded by Referee Portscheller, and carried that the motion by which "consider" was deleted from the opening paragraph be reconsidered.
The motion to delete "consider" from the opening paragraph now being back before the Committee, the motion failed.
With respect to Rule 2.9(A)(1), which addresses permissible ex parte communications regarding scheduling, administrative or emergency purposes, Joel Fremstad asked whether those categories were adequate to address a procedural question about which an ex parte communication should be permitted. Linda Bata noted that Rule 2.9(A)(1)(a) permits an ex parte communication about scheduling, administrative, or emergency purposes so long as no party gains a procedural advantage as a result of the communication.
There were no changes to Rule 2.9(A)(1).
With respect to Rule 2.9(A)(2), staff said the provision is essentially similar to ND Canon 3B(7)(b) except the model rule uses "subject matter" instead of "substance" with respect to advice sought by a judge from a disinterested expert and requires advance notice to the parties. He said the Reporter's Explanation indicates the advance notice requirement was included to address situations in which, if the consultation turns out to be problematic, post-consultation notice would be ineffectual.
In response to a question from John Mahoney regarding the substitution of "subject matter" for "substance", staff said the Reporter's Explanation does not explain why the change was made.
Justice Crothers said "subject matter" is likely considered a less demanding requirement than "substance". Joel Fremstad said that if advance notice is required it would be difficult to give notice concerning the "substance" of the advice. Justice Crothers agreed.
There were no changes to Rule 2.9(A)(2).
With respect to Rule 2.9(A)(3), staff said the rule is similar to ND Canon 3B(7)( c) except for the additional model language requiring a judge to make reasonable efforts to avoid receiving factual information that is not part of the record and to not abrogate the responsibility to personally decide the matter.
Justice Crothers drew attention to the language permitting a judge to consult "with other judges", which is also existing language in the ND canon. He said the language appears to have no jurisdictional limit, thereby arguably allowing a judge to consult with judges anywhere. He noted that some jurisdictions have deleted the reference to "other judges" from their codes.
There were no changes to Rule 2.9(A)(3).
Staff drew attention to the CCJ amendments in Attachment C (December 18, 2007), which propose adding a new paragraph (4) to Rule 2.9(A). He said the new paragraph generally provides that, with the consent of the parties, the judge and court personnel may have ex parte communications with those involved in problem-solving court teams as long as the content is provided to all parties and a party may waive the right to receive the information.
Justice Crothers noted that the Oklahoma task force adopted the CCJ amendment after changing "problem-solving court team" to "specialized court team". He said he preferred the Oklahoma language.
It was moved by Justice Crothers, seconded by Judge McCullough, and carried that the new paragraph (4), as proposed by the CCJ amendment and modified by the Oklahoma task force, be included in Rule 2.9(A).
There were no changes to Rule 2.9(A)(4) or (A)(5).
With respect to Rule 2.9(B), staff said the paragraph is new with the model rule and addresses what a judge must do if the judge inadvertently receives an unauthorized ex parte communication concerning the substance of a matter. The judge is required to notify the parties of the substance of the communication and provide an opportunity to respond. He said the new paragraph is intended to address such things a misdirected emails and faxes.
Justice Crothers noted that a somewhat similar provision had been included in the Rules of Professional Conduct.
Joel Fremstad suggested the requirement that a judge notify the parties of the "substance" of the communication should be changed to notification of the subject matter, or perhaps facts, of the communication. He said the change would be consistent with the earlier conclusion concerning notice about the subject matter of advice from an expert. Judge McCullough said notice of the "facts" of the communication may be too limiting and result in a bare notice that the communication was received. Wayne Sanstead said "subject matter" would be the preferable option.
It was moved by Joel Fremstad, seconded by John Mahoney, and carried that Rule 2.9(B) be modified to require notice of the "subject matter" of the communication.
With respect to Rule 2.9( C), staff said the rule consists of language found in the Commentary to ND Canon 3B(7) [6th paragraph]. He said the Reporter's Explanation indicates the previous commentary language was not supported by the black letter rule and that the subject matter of the commentary language warranted explicit reference in a rule. He said the model rule adds language allowing a judge to consider facts that may be properly judicially noticed, which was considered a beneficial clarification. He said the ND Commentary language also includes a reference to state law concerning small claims actions which permits the court to make its own inquiry about the matter before, during, or after a hearing.
Staff also noted the CCJ amendment regarding Rule 2.9( C), which would add language permitting a judge to seek information of a general nature that does not bear on a disputed evidentiary fact or influence the judge's opinion of the substantive merits of the case. Justice Crothers said the Oklahoma task force appears to have adopted the CCJ amendment after changing "the case" to "of a specific case".
Linda Bata said the CCJ amendment appears directed at concerns about the model rule's potential limiting effect on how judges handle mass torts and other complex civil litigation.
Judge Anderson suggested that language be added to Rule 2.9( C) to reflect the allowance under state law for a judge to conduct inquiries in small claims cases. Committee members agreed.
It was moved by Judge Anderson, seconded by Wayne Sanstead, and carried that "Except as otherwise provided by law," be inserted at the beginning for Rule 2.9( C).
Committee members agreed the ND Commentary language regarding small claims cases would be considered when the Rule 2.9 comment is reviewed.
With respect to the CCJ amendments, Justice Crothers wondered why the added language is necessary because judges are generally able to educate themselves about particular matters. Linda Bata said situations involving mass torts are unusual for North Dakota and the suggested language leaves uncertainty about what a judge may be able to do. Committee members generally agreed the suggested language was unnecessary at this point.
There were no changes to Rule 2.9(D).
Rule 2.10 - (Judicial Statements on Pending and Impending Cases. Staff said Rule 2.10(A) is essentially the same as the first sentence of ND Canon 3B(9), Rule 2.10(B) is essentially the same as ND Canon 3B(10), and Rule 2.10( C) is similar in substance to the second sentence of ND Canon 3B(9).
There were no changes to Rule 2.10(A), (B), or ( C).
Staff said Rule 2.10(D) is generally similar to the penultimate sentence of ND Canon 3B(9) but is structured somewhat differently.
Judge McCullough drew attention to the opening clause of paragraph (D) ["Notwithstanding the restrictions in paragraph (A)"], which modifies when a judge can make certain public statements, explain court procedures, and comment on a proceeding in which the judge is a litigant in a personal capacity. He noted that paragraph (A) prohibits a judge from making public statements that might affect the outcome or impair the fairness of a pending or impending matter. He said it would seem more appropriate for the opening clause of paragraph (D) to read "Subject to the restrictions in paragraph (A)" because the "notwithstanding" construction seems to imply the restrictions in paragraph (A) would not apply to statements permitted in paragraph (D).
Justice Crothers said the "subject to" construction would work in paragraph (D) except with respect to the last clause, which allows a judge to comment on proceedings in which the judge is a litigant in a personal capacity.
Linda Bata wondered whether the last clause of paragraph (D) should be a separate
paragraph. She suggested placing the last clause of paragraph (D) in paragraph (E), with the opening
clause of paragraph (E) changed to read "Notwithstanding the restrictions in paragraph (A)" and
transferring the paragraph (E) language about responding to allegations to paragraph (D), with the
opening clause of paragraph (D) changed to read "Subject to the restrictions in paragraph (A).
She also suggested reversing the order of paragraphs (D) and (E). Committee members agreed the changes would clarify the purpose of the two paragraphs.
It was moved by Linda Bata and seconded by Justice Crothers that paragraphs (D) and (E) be modified as described.
Judge McCullough noted the reference in new paragraph (E) to making statements "in the course of official duties" and wondered whether the reference should be changed to "duties of judicial office", which would be consistent with the earlier Committee discussion. Justice Crothers observed that "official duties" is very broad and may be more consistent with the purpose of the rule, but he agreed a reference to duties of judicial office would be consistent with the Committee's earlier decision.
With the concurrence of the second, Linda Bata moved that the motion be amended to include substituting "performing the duties of judicial office" for "official duties" in new paragraph (E).
Following further discussion, the amended motion carried.
Chair Mattson said the Committee would continue its review, beginning with Rule 2.11, at the next meeting. There being no further business, the meeting was adjourned at 1:50 p.m.
Jim Ganje, Staff