Rep. Kathy Hawken
Joe Larson II
Municipal Judge William Severin
Chair Mattson called the meeting to order at 10:00 a.m. and welcomed Justice Crothers and Referee Portscheller as new members. He then drew Committee members' attention to Attachment B (April 19, 2007) - minutes of the February 17, 2006 meeting (previously distributed March 8, 2006).
John Mahoney noted an errant "v" on the 5th line of page 9 which should be deleted. It was moved by John Mahoney, seconded by Judge McCullough, and carried that the minutes, as corrected, be approved.
At the request of Chair Mattson, staff reviewed the background material provide in Attachments C - G (April 19, 2007). Staff said the new ABA Model Code resulted from numerous amendments, substantive and structural, to the 1990 ABA Model Code. He said the current North Dakota Code of Judicial Conduct resulted from amendments adopted in 1994 based on the 1990 ABA Model Code. The result, he said, is that the current North Dakota Code is nearly the same as the 1990 Model Code and the 2007 ABA Model Code can be viewed, essentially, as representing amendments to the current North Dakota Code. As a result, he said, Attachment F (April 19, 2007) - Correlation Table: 1990 Model Code to 2007 Model Code, can serve as a useful tool in locating and considering changes made by the 2007 Model Code. He noted that Attachment E (April 19, 2007) - the current North Dakota Code with annotations - illustrates the basic similarity between the ND Code and the 1990 Model Code. He said the primary differences between the 1990 Model Code and the current ND Code are with respect to Canon 5, which includes the most recent amendments recommended by the Committee with respect to election activity, and parts of Canon 4 concerning judge involvement in civic/charitable activities, which were not significantly amended in 1994. He then drew attention to Attachment D (April 19, 2007), which consists of Judicature and ABA Journal articles explaining changes in the 2007 Model Code considered to be significant, problematic, or both. He said the articles have staff annotations indicating the particular 2007 Model Code provisions discussed in the articles. He then briefly summarized the structure and general contents of the 2007 Model Code, as summarized in the background memorandum included in Attachment C (April 19, 2007).
Chair Mattson then requested general Committee discussion regarding possible approaches
in conducting the review of the 2007 Model Code and the current ND Code.
Judge Anderson suggested that the initial, fundamental question is whether to use the 2007 Model Code as the basic document and add parts from the ND Code or use the current ND Code as the basic document and import provisions from the 2007 Model Code.
Sen. Lee wondered whether it is possible to lay the two Codes side-by-side and compare respective provisions. Staff noted one difficulty with that approach is that while the 2007 Model Code has many provisions that are the same or similar to current ND Code provisions, the 2007 Model Code has been substantially reorganized, which complicates a side-by-side comparison.
Judge McCullough noted that the Reporter's Explanation of Changes regarding the 2007 Model Code is available on the ABA website. He said the Reporter's Explanation will be an important resource in considering changes made in the 2007 Model Code.
Justice Crothers said the approach to the review will be an important decision for the Committee, but he cautioned that when the review is complete, the end product should at least follow the structure of the 2007 Model Code. He said other jurisdictions will also be reviewing their respective Codes of Judicial Conduct and amending them in response to the 2007 Model Code. He said it is important to be as uniform as possible in the structure of the code so that North Dakota, a smaller jurisdiction with fewer judicial discipline and ethics cases, is able to consider interpretations from other jurisdictions concerning particular provisions.
In response to a question from Judge McCullough, Justice Crothers said to his knowledge no other jurisdiction has yet adopted the 2007 Model Code. Judge McCullough wondered whether North Dakota should be the leading edge for adopting the Model Code or should wait to see the results of other jurisdictions that are reviewing their own codes. He said the Committee could proceed with a review of the 2007 Model Code and the current ND Code, but should proceed at a slower pace so the Committee could benefit from review activities in other jurisdictions.
Joel Fremstad suggested that the 2007 Model Code, with relevant annotations, should be used as the basic working document and provisions from the current ND Code that should be retained could be inserted into the working document. He said particular attention could be paid to those 2007 changes that are considered most significant.
Staff noted that it would be possible to use the 2007 Model Code as the basic document and annotate the Model Code to indicate, where appropriate, related or similar provisions from the current ND Code. He said the Reporter's Explanation of Changes would also be provided so that the reasons for particular changes could be considered.
Judge McCullough cautioned that although the 2007 Model Code may be substantively similar in many respects to the current ND Code, the Committee should nevertheless carefully consider all of the particular Model Code changes. He said an apparently slight change of emphasis or restructuring of sentences or addition or deletion of a few words may have significant effect.
In response to a question from Chair Mattson on agreement concerning the basic working approach of the Committee, it was moved by Joel Fremstad, seconded by Judge Anderson, and carried that the Committee proceed with the 2007 Model Code as the basic working document, with the Model Code annotated to indicate related or similar provisions of the current ND Code.
Judge McCullough explained that he tentatively agreed with using the 2007 Model Code as the basic working document but that he would reserve an opinion about whether the Model Code's structure and organization should, in the end, replace the current Code's structure and organization.
Chair Mattson next requested discussion concerning the preferred approach for reviewing
particular Code provisions.
Justice Crothers observed that reviewing the Model Code, and the current Code, rule by rule and section by section will obviously require a good amount of time. He suggested the possibility of using a subcommittee process to review individual canon provisions.
Judge McCullough said subcommittees may not be necessary as long as the Committee, as a whole, is able to work with manageable portions of Code information.
Judge Clapp agreed that a subcommittee process may not be necessary at the outset, but could be an alternative in the future depending on a particular issue or canon provision.
After further discussion, there was general agreement that the review would be conducted by the full Committee with particular segments of the 2007 Model Code being reviewed at each meeting. Subcommittee work will be considered as the need arises.
With respect to a future meeting schedule, Committee members agreed a quarterly schedule over the next year or so should be sufficient to conduct the review. Justice Crothers said activity in other jurisdictions may become apparent during that time as well and could be helpful to the Committee in its work.
Chair Mattson said a meeting schedule would be distributed as quickly as possible.
There being no further business, the meeting was adjourned at 11:45 a.m.
Jim Ganje, Staff