Judiciary Standards Committee Ramkota Hotel, Bismarck June 15, 2010
Members Present Judge Douglas Mattson, Chair Linda Bata Judge Sonja Clapp Ron Carlisle Justice Daniel Crothers Daniel Dunn (SBAND Liaison) Paul Ebeltoft Joel Fremstad Anna Frissell Joe Larson II (joined the meeting at 10:20
a.m.) Judge Steven McCullough Judicial Referee Connie Portscheller Municipal Judge William Severin
Rep. Kathy Hawken John Mahoney Sen. Judy Lee Judge Mikal Simonson
Chair Mattson called the meeting to order at 9:30 a.m. and drew Committee members'
attention to Attachment B (June 8, 2010) - minutes of the March 26, 2010 meeting.
It was moved by Justice Crothers, seconded by Judge McCullough, and carried that
the minutes be approved.
Cont'd Review - 2007 ABA Model Code of Judicial Conductand ND Code
Canon 4 (Political Activity) - Review of Revisions
At the request of Chair Mattson, staff reviewed Attachment C (June 8, 2010) - new Canon
4 (revised and renumbered ND Canon 5), with revisions resulting from the March 26 meeting.
There were no other suggested changes to revised Canon 4.
Compliance Section - Revised
Committee members next reviewed Attachment D (June 8, 2010) - ND Code Compliance
Section with revisions resulting from the March 26 meeting. Staff noted the Committee's initial
discussion of the Application Section of the ABA Model Code, revisions to which will be
considered during the ABA's August meeting. In light of the pending possible revisions, he said,
the Committee concluded to retain the current Compliance Section with changes reflecting the new
rule structure and with other minor changes in the first two paragraphs of the Section. The ABA
Model Code Application Section, with the revisions to be considered at the ABA's August meeting,
is included as Attachment E (June 8, 2010).
With respect to the revisions to the ABA Application Section, Justice Crothers said the
majority of the comments received after the Model Code was adopted concerned Application Section
provisions identifying which rule provisions would or would not apply to part-time judges. In light
of those concerns, he said, revisions were developed to address the issues raised. He said there
appears to be no major opposition to the revisions and it is expected that they will be adopted as
Judge McCullough noted that the proposed revisions to the Application Section retain the
Code's application to administrative law judges, while the current ND Compliance Section does not.
He suggested referring the issue to the Joint Committee on Attorney Standards with a request that
the Committee consider whether the Rules of Professional Conduct should be amended to provide
that a lawyer who serves as an administrative law judge must comply with the Code of Judicial
With respect to the timing for considering any revisions to the Application Section adopted
in August, Justice Crothers noted that the revisions could be reviewed at the Committee's
September 17 meeting. He said an option for the Committee is to submit the proposed revisions to
the current Code, including the Compliance Section, to the Supreme Court and after the September
17 meeting submit, if necessary, further proposed revisions to the Compliance Section as part of the
comment period. Committee members agreed.
It was moved by Judge McCullough, seconded by Paul Ebeltoft, and carried that the
issue concerning possible amendments to the Rules of Professional Conduct to address lawyers
serving as administrative law judges be referred to the Joint Committee on Attorney
Standards for consideration.
Ethics Advisory Opinion - Yard Signs and Petitions - Review
At the request of Chair Mattson, staff reviewed Ethics Opinion 2010-1, which was recently
issued by the Judicial Ethics Advisory Committee. He said the Committee, in response to a question
from a candidate for judicial office, concluded that the current Code prohibits a candidate, while
campaigning door-to-door, from personally requesting that a homeowner place a campaign sign in
the homeowner's yard. He said the conclusion was based generally on the prohibition in Canon
5C(2) against a candidate directly and personally soliciting publicly stated support. He said the
Advisory Committee, in considering the question, reviewed ethics opinions and caselaw from other
jurisdictions and was concerned that the prohibition may be too broad in light of recent court
decisions regarding political activity by candidates for judicial office. Consequently, he said, the
Advisory Committee agreed to refer the issue to this Committee for review. He said another issue
that the Advisory Committee encountered and which there is interest in this Committee discussing
concerns whether it is permissible, in light of the prohibition against soliciting publicly stated
support, for a candidate to personally solicit signatures on the candidate's nominating petition.
Sen. Lee observed that it is not sensible to regard the election process as so pure that a
candidate for judicial office should be prohibited from asking someone to sign a petition. Justice
Crothers agreed and noted that if judges are to be elected to office, it is unwise to remove the
candidate completely from the election process.
With respect to whether a candidate can solicit signatures on a petition, Judge McCullough
said language could be added to Comment  to Rule 4.6 to clarify that the rules do not prohibit
such activity. However, he said the issue regarding whether a candidate may ask a homeowner to
place a campaign sign in the homeowner's yard is more complicated. He noted that a campaign sign
placed in a homeowner's yard near a busy intersection may be as effective as a paid advertisement.
He said it would be very difficult to generally allow a candidate to personally request the posting of
a sign in a yard, but then attempt to identify particular situations in which the practice would be
Linda Bata observed that when a candidate personally requests that a homeowner place a
campaign sign in a yard the homeowner may feel imposed upon and may be concerned about
consequences if the request is denied and the candidate is then elected to judicial office.
Justice Crothers agreed with the suggestion to address the petition issue by adding comment
language. He said he would not recommend addressing the yard sign issue. He said the Judicial
Ethics Advisory Committee has researched and addressed the issue and provided guidance based on
the current Code. He said ethics advisory opinions generally add depth to the application of the
Code's provisions. It is generally unnecessary, he said, to try to respond to every issue by amending
Following further discussion, it was moved by Linda Bata, seconded by Judge Clapp, and
carried that Comment  to Rule 4.6 be modified to include that the rule does not prohibit a
candidate from personally seeking signatures on the candidate's nominating petition.
In response to a question from Chair Mattson regarding recommendation of the assembled
Code revisions to the Supreme Court, it was moved by Linda Bata and seconded by Justice
Crothers that the proposed Preamble, Scope, Terminology, Canons 1 through 3, revised ND
Canon 5 (renumbered as Canon 4), and the revised Compliance Section be approved, and a
report prepared and submitted to the Supreme Court for its consideration.
Judge McCullough said he prefers the present Code of Judicial Conduct as there is a settled
body of caselaw interpreting the code's application, which will not be the case with the new Code.
However, he said, there are useful additions in the proposed Code provisions, such as references to
judicial involvement in specialty courts and language more directly related to judge interactions in
Justice Crothers observed that at least 14 jurisdictions have now adopted codes based on or
modeled after the ABA Model Code. That, he said, will result in a developing body of caselaw and
opinions interpreting the application of the various codes.
The motion carried.
Judge McCullough observed that several jurisdictions have judicial nominating committees
similar to that in North Dakota and codes of conduct and rules governing the committees have been
developed in some of those jurisdictions. He suggested that development of similar rules governing
the operation of the ND Judicial Nominating Committee should be considered.
Staff will assemble background information regarding the operation of the Judicial
Nominating Committee in accordance with N.D.C.C ch. 27-25.
Chair Mattson noted the Committee's next meeting is scheduled for September 17, at which
time a short meeting may be held to consider any revisions to the Application Section of the ABA
There being no further business, the meeting was adjourned at 10:30 a.m.