Brian Neugebauer, Chair
Judge Richard Grosz
Sen. Judy Lee
Judge Doug Mattson
Lisa Fair McEvers
Justice Dale Sandstrom
Judge Zane Anderson
Referee Robert Freed
Chair Neugebauer called the meeting to order at 1:00 p.m. and drew attention to Attachment C (June 7, 2004) - letter and information referred to the Committee by Chief Justice VandeWalle about Code of Judicial Conduct provisions governing activities by candidates for appointment to judicial office. He also noted the June 11 mailing, which included a letter from Referee Freed regarding the subject of the Committee's meeting. Staff said the question, discussed in the material submitted by the Judicial Ethics Advisory Committee, is whether Canon 5B(2) permits a candidate to contact lawyers for purposes of soliciting support for an appointment. He said the Advisory Committee concluded that, while ambiguous, the provision probably bars a candidate from soliciting support unless the Judicial Nominating Committee has either requested or required the submission of statements of support. He said the ambiguity is whether a candidate's solicitation of support constitutes the kind of "political activity" that is generally barred by Canon 5B(2).
Brian Neugebauer observed that it is fairly well-known that lobbying on behalf of candidates for appointment takes place and that much of the activity that occurs would be permissible if it were undertaken by a candidate for election to judicial office.
Judge Grosz said that if Canon 5B(2) is considered as barring solicitation of support by candidates for appointment, the provision will almost certainly not withstand scrutiny under the U.S. Supreme Court's recent decision in Republican Party of Minnesota v. White. He suggested the Committee should focus narrowly on trying to address the limited issue before it, rather than attempt to assess the impact of White generally on Canon 5. That could be achieved, he said, by perhaps providing in the Commentary to Canon 5B(2) that "political activity" under the canon does not include the solicitation of support by a candidate for appointment to judicial office.
Brian Neugebauer agreed the Committee should, at this point, limit its review to the issue concerning permissible activity by candidates for appointment.
Lisa McEvers agreed the better approach is perhaps to except the activities in question from what may be considered "political activity". Having been a candidate for appointment, she noted that the Judicial Nominating Committee will contact lawyers identified on a list of references submitted by a candidate, and may contact others not listed if the Committee thinks useful information may be obtained.
Judge Mattson noted that a person is not considered a "candidate" for purposes of the Code until the person makes a public announcement of candidacy for the appointment. He said most people considering whether to become a candidate for appointment would likely have contacted others for support beforehand, which would not be subject to the arguable limitation under Canon 5B(2).
In response to a question from Chair Neugebauer, there was general agreement that it should not be inappropriate for a candidate to contact lawyers for expressions of support. Justice Sandstrom said a candidate should also be allowed to distribute resume information to lawyers. Senator Lee suggested that a candidate should be able to contact non-attorneys as well for support.
Following discussion, Committee members agreed Canon 5B(2) should be modified to clarify that "political activity" does not include the kinds of activities under review. Justice Sandstrom said a substantive provision should not be included in a Commentary, which is intended to offer an explanation of the substantive canon. He suggested, and Committee members agreed, the clarification should be made by modifying or adding to the provisions of Canon 5B(2).
Chair Neugebauer said draft amendments to Canon 5B(2) would be prepared for the Committee's review at the next meeting, which is scheduled for July 23. Staff noted the Committee will soon be receiving from the Gender Fairness Implementation Committee draft amendments to Canon 3B and C which will address the issue of sexual harassment within the context of the Canon's general requirements that a judge perform various responsibilities without bias or prejudice. Chair Neugebauer said the amendments, if received, would be reviewed at the July 23 meeting.
There being no further business, the meeting was adjourned at 1:35 a.m.
Jim Ganje, Staff