Judge Douglas Mattson, Chair
Judge Zane Anderson
Justice Daniel Crothers
Dan Dunn (SBAND Liaison)
Joel Fremstad (joined meeting at 11:15 a.m.)
Rep. Kathy Hawken
Joe Larson II
Sen. Judy Lee
Judge Steven McCullough
Judicial Referee Connie Portscheller
Municipal Judge William Severin
Judge Sonja Clapp
Lisa Fair McEvers
It was moved by John Mahoney, seconded by Wayne Sanstead, and carried that the minutes be approved.
Review of Model Code Comment Language - Approach
Chair Mattson drew attention to a staff inquiry concerning how the Committee should review ABA Model Code comment language as the Committee proceeds through its review of canon and rule language.
Paul Ebeltoft noted that during past reviews of the lawyer discipline rules and rules of professional conduct comment language had been reviewed after substantive discussion of rule provisions. He said that approach worked well and likely would work well during the Committee's review of the ABA Model Code.
Justice Crothers observed that review of Model Code comment language will be of more consequence when discussing Model Code Canons 1 and 2. He said the Committee's review of canon and rule provisions may bog down if the Committee attempts to review comment language and canon and rule language at the same time. Changes to comment language, he said, will depend on what the Committee concludes to do with particular canons and rules.
After further discussion, Committee members agreed consideration of comment language should be deferred until after the canons and rules have been reviewed.
Conference of Chief Justices' Resolution Concerning Numbering and Format
Chair Mattson then drew attention to Attachment C (August 29, 2007) - a resolution adopted by the Conference of Chief Justices urging that the ABA Model Code's format and numbering system be followed without regard to particular substantive provisions are adopted.
Committee members agreed the Committee's decision at the May 4, 2007, meeting to use the ABA Model Code as the basic working document implicitly conformed to the CCJ resolution recommendation that the model code's format and numbering be followed.
Review of ABA Model Code Preamble
Chair Mattson then directed Committee members' attention to the annotated Model Code Preamble contained in the Committee Notebook and requested discussion of whether the model code preamble should be tentatively adopted or modified. Staff noted that the shaded language in the annotated preamble indicates language that is the same as or very similar to preamble language in the current North Dakota Code.
Justice Crothers noted that in paragraph  references to "independent" judiciary have been retained. He said some groups have reviewed code terminology and suggested that "fair and impartial" be used rather than "independent" because independence raises alarm in some quarters about use of judicial authority. He asked whether there was any discussion in background material concerning the continued use of "independent". Staff noted that references to the independence of the judiciary are common throughout the Model Code and reflect the Model Code's emphasis on the three central principles to be served by a code of ethics: independence, impartiality, and integrity. The three principles, he said, are linked throughout the model code, beginning with Canon 1.
Judge McCullough recalled that when the Committee previously recommended amendments to current Canon 5 governing election activities, the amendments were supported by reference to the independence of the judiciary as an important principle served by constraints on election activity by judicial candidates. He noted the corollary in paragraph  of the model preamble between the importance of avoiding impropriety and the importance of ensuring independence, impartiality, integrity, and competence. He said that connection is at least part of the basis for retaining reference to independence in the code.
Paul Ebeltoft noted that the model preamble, in paragraph , explicitly includes "judicial candidates" with judges as being subject to the standards of ethical conduct established by the model code. He suggested that the obligations of judicial candidates with respect to avoiding impropriety and the appearance of impropriety should also be emphasized in paragraph . He urged that application of the code should be extended as early and often as practicable to candidates for judicial office. He emphasized that general code concepts such as the dignity of the judiciary and the importance of propriety in conduct should be as important to candidates for judicial office as they are for judges, rather than leaving the conduct of candidates to be addressed primarily in Model Code Canon 4 governing election activities.
John Mahoney recalled the substantial work done by the Committee in reviewing and recommending revisions to current Canon 5, which was motivated by concerns about permissible conduct by candidates. He said it is important to keep in mind the distinction between judge and candidate for purposes of the scope of ethical rules.
In response to a question from Sen. Lee, Judge McCullough observed that there are ethical restrictions on the conduct of persons who are candidates for judicial office. The question, he said, is whether the other, broader provisions of the code should also be applied to candidates.
Justice Crothers noted that the code applies not only to judges who are elected to office, but also to judges who are appointed to judicial office. Additionally, he said, ethical rules governing lawyer conduct provide a basis for imposing lawyer discipline upon a candidate for judicial office for misconduct during election activities. He expressed concern about extending code provision other than those pertaining election activities to candidates because many code provisions apply not only to adjudicative duties but also to administrative duties, which arguably would not apply to candidates.
Paul Ebeltoft observed that Canon 1 establishes affirmative obligations, while Canon 4 (elections) primarily expresses negative limitations. He noted that Rule 1 of Canon 1 requires that a judge "comply with the law" and asked why a candidate for judicial office should not also be expected to abide by that direction.
Justice Crothers noted that Canon 1 and Rule 1.2 retained provisions concerning impropriety and appearance of impropriety. He explained that this subject matter was hotly debated during consideration of the model code language when there were early unsuccessful suggestions that the impropriety standard was too vague and should be deleted from the code. He said extending provisions such as Rule 1.2 to candidates for judicial office would likely be cause for another controversy.
Judge Anderson said it is important to establish a basic platform for further discussion of the model code to ensure issues are adequately addressed. Therefore, it was moved by Judge Anderson and seconded by Sen. Lee that the Committee tentatively approve the Model Code Preamble, Scope, Terminology, and Canon 1 with such further modifications or exceptions as the Committee concludes are necessary.
Judge McCullough said he could not commit to approving model code language and would prefer considering code provisions piecemeal. He said the Committee could then entertain a motion at the end of its work to approve the code and any modifications to it.
Sen. Lee emphasized the importance of diligently moving forward with review of the model code.
The motion carried (7-yes; 6 - no).
It was moved by Paul Ebeltoft, seconded by Wayne Sanstead, and failed that paragraph  of the model Preamble be modified on line 10 to insert "and judicial candidates" after "Judges" and to substitute "the judiciary" for "judicial office".
Committee members then continued with the review of the model code Preamble.
Justice Crothers drew attention to paragraph , which on line 20 refers to "highest"
standards of conduct while the current North Dakota preamble refers to "high" standards. He
recommended that the North Dakota term be retained.
It was moved by Justice Crothers and seconded by John Mahoney that the current reference to "high" standards be substituted for the reference to "highest" standards in the paragraph .
Judge McCullough suggested "highest" is used in the model preamble to express a much more aspirational sentiment than the reference to "high" might be thought to encompass. He said he could support either reference.
John Mahoney said all the standards of conduct in the code are considered "high" standards and to refer to "highest" standards suggest that some may be superior to others.
The motion carried.
Review of ABA Model Code Scope
Committee members next reviewed the model code Scope. Staff explained that the Reporter's Explanation of Changes indicates the new Scope contains the concepts of the 1990 model code preamble and explains how the various rules are intended to operate. He noted the language in paragraph  which explains that a judge can be disciplined only for violating a rule and not just a canon provision. He said that language, if retained, may be important if the Committee finds a restriction that is in canon language but not reiterated in rule language and the Committee would like the canon restriction to be a basis for discipline. In that event, he said, it would be necessary to include the canon language in the substantive body of a rule.
In keeping with the earlier agreed-to change concerning paragraph  of the Preamble, it was moved by Justice Crothers, seconded by Wayne Sanstead, and carried that paragraph  of the Scope be modified on line 24 to refer to "high" standards rather than "highest" standards.
Paul Ebeltoft observed that the Scope does explain general application of the code to judicial conduct and he asked that the Committee reserve the opportunity to discuss whether language should be added clarifying application of code provisions to candidates for judicial office.
Judge McCullough drew attention to paragraph , which explains that the code is not intended as a basis for criminal "liability". He noted that the current North Dakota Code refers to criminal "prosecution".
It was moved by Judge McCullough, seconded by Justice Crothers, and carried that paragraph  of the Scope be modified on line 5 to refer to "civil liability or criminal culpability".
Review of ABA Model Code Terminology
Committee members next turned to a review of the Terminology provisions of the ABA Model Code.
With respect to the definition of "aggregate", Judge McCullough noted the reference to "in kind" contributions to candidates. He wondered what would constitute an in kind contribution. The definition of aggregate was included in the 1990 Model Code, but not adopted as part of the current North Dakota Code. Judge McCullough requested that background information be obtained concerning the meaning and application of the definition.
With respect to the definition of "domestic partner", which is a new definition added to the 2007 Model Code, Justice Crothers asked what the legal implications might be if the definition were adopted as part of the code of conduct. He wondered whether it would constitute a de facto recognition of domestic partnerships and whether it would raise public policy issues. Staff noted that the phrase recurs throughout the model code, particularly where there is a reference to the judge's spouse or family members.
Judge McCullough said the definition may be appropriate in light of recent statutory changes concerning cohabitation. He said any unanticipated consequences beyond the area of judicial ethics is likely something outside the judiciary's control.
Justice Crothers noted the definition of "members of a judge's family residing in the judges household", which addresses any relative of the judge by blood or marriage or a person treated by the judge as a member of the judge's family who resides in the judge's household. He wondered whether that definition would encompass relationships addressed in the definition of domestic partner. Judge McCullough said the scope of the definition may be limited by the previous definition of "members of the judge's family".
With respect to the definition of "economic interest", Paul Ebeltoft asked why there would be particular exceptions, as noted in the definition, to what would constitute an economic interest, particularly for purposes of disqualification. For example, he wondered why an interest in individual holdings within a mutual or common investment fund, one of the exceptions, should not be a basis for disqualification.
Judge McCullough noted there are some kinds of funds for which a judge's involvement may pose ethical issues, but involvement in some funds may be so distant that ethical issues may be remote.
Justice Crothers noted that there are numerous ethical opinions on the issue of economic interest and disqualification and the general approach revolves around application of the de minimis standard, a definition of which is included in the Terminology section.
With respect to the definition of "independence", Judge McCullough said there is a lengthy comment in current Canon 5 governing election activity that explains the importance of limitations on certain election activities to judicial independence. He suggested discussion of the definition be deferred until the Committee reviews mode codel Canon 4 and current Canon 5.
With respect to the definition of "judicial candidate", Judge Mattson asked whether the reference to retention is necessary. Justice Crothers wondered whether a judge who is initially appointed to the office would be considered as seeking retention when the judge later stands for election. Staff noted that the reference to retention in the definition is not explicitly tied to the idea of retention elections.
It was moved by Judge Anderson, seconded by John Mahoney, and failed that the reference to retention be deleted from the definition of judicial candidate. (5 - yes; 6 - no).
With respect to the definition of "law", Judge McCullough observed that the definition does not contain any reference to administrative rules or regulations. He said the definition should likely include such a reference since there are administrative code provisions that have the force of law. Judge Severin suggested adding a reference to ordinances as well.
It was moved by Judge McCullough and seconded by Joel Fremstad that the definition of "law" be modified to include ordinances and administrative rules and regulations.
Justice Crothers expressed concern with how the suggested language might apply within the code. For example, he said Rule 1.1, requires that a judge "comply with the law" and wondered whether including the language would require a judge to comply with all sorts of provision, such as a barking dog ordinance, or be subject to discipline.
Joe Larson said the definition's use of "encompasses" (' "Law" encompasses') may be cause for uncertainty about application. He said use of "includes" would more clearly indicate the listing of what constitutes "law" is not exclusive and the definition would then be applied depending on context.
It was moved as a substitute motion by Joe Larson, seconded by Judge Anderson, and carried that the definition of "law" be modified to replace "encompasses" with "includes".
Judge McCullough observed that the definition of "nonpublic information" is identical to the current North Dakota definition except the model code definition does not contain the reference to information that ", by law", is not available to the public
It was moved by Judge McCullough, seconded by Joe Larson, and carried that the definition of "nonpublic information" be modified to include the reference to "by law" as in the current North Dakota definition.
With respect to the definition of "public election", Justice Crothers noted that there are only nonpartisan elections in North Dakota and there are no partisan or retention elections. He said there are, however, on occasion special elections.
It was moved by Justice Crothers, seconded by Judge McCullough, and carried that the definition of "public election" be modified to refer to special, primary, and general elections.
Judge Anderson suggested discussion of the definition of "political organization" be deferred until the Committee reviews Canon 4 regarding election activity. Judge McCullough noted the definition of "personally solicit" contains a reference to "in kind" services and suggested the Committee defer discussion of the definition pending additional information concerning the scope and application of the in kind reference.
Review of the ABA Model Code Application Section
Staff noted that the Application section of the current North Dakota Code is located at the end of the code, while the section is placed after the Terminology section and before the canons in the model code. He said changes to the Application section will depend on the ultimate arrangement of the canons and rules following the Committee's review.
It was moved by Judge Anderson, seconded by Sen. Lee, and carried that review of the Application section be deferred until the Committee completes its review of the model code.
Review of ABA Model Code Canon 1
Staff noted that Canon 1 and Rules 1.1 through 1.2 are largely restatements and relocations of provisions of current North Dakota Canon 2. He said the significant difference is the prohibition in Rule 1.3 against the "abuse" of the prestige of judicial office. He said the 1990 Model Code and the current North Dakota provision prohibit lending the prestige of judicial office to advance private interests. He noted that the substitution of "abuse" was the source of considerable debate during development of the model code.
There were no suggested changes to Canon 1 and Rules 1.1 and 1.2.
With respect to the reference to "abuse" in Rule 1.3, Justice Crothers noted there are many ethics opinions discussing what constitutes lending the prestige of judicial office. There are very few, if any, opinions, he said, that address the concept of "abusing" the prestige of judicial office. He said a change to the abuse standard will set aside a wealth of guidance provided in ethics opinions.
Staff noted that the ABA Joint Commission supported the language concerning abuse of prestige because it was considered more likely be a more precise or meaningful concept under circumstances, rather than the concept of "lending" prestige, which was regarded as less useful and more uncertain in meaning. However, he said, the American Judicature Society opposed the "abuse" standard regarding it as being more vague than "lend" and suggesting that the abuse standard would encourage the use of the prestige of office unless it could be argued it was "abusive".
Sen. Lee wondered whether the prohibition would cause judges to be less involved in community activities and less inclined to speak to community gatherings. She suggested the Committee should be wary of using such prohibitive language that further isolate from the community in which they are located.
Paul Ebeltoft suggested the term "abuse", as used in the model rule, appears to have a quantitative as well as qualitative component. He wondered how it would be determined that "abuse" had occurred.
It was moved by Paul Ebeltoft, seconded by John Mahoney, and carried that Rule 1.3 be modified to retain the reference to lending the prestige of judicial office.
With respect to the reference in Rule 1.3 to using the prestige of judicial office to advance personal or economic interests, Judge McCullough suggested including a reference to "significant" interests to address concerns expressed about language that is so restrictive that judges are further isolated and over-cautious about appearing before groups where funds might be raised.
It was moved by Judge McCullough and seconded by Sen. Lee that Rule 1.3 be modified to refer to "significant" personal or economic interests.
Joe Larson suggested that the issue might be better addressed in comment language much like the use of official letterhead by a judge is addressed.
Justice Crothers said he would oppose the motion because it risks considering the issue in isolation. He noted that ethics opinions considering the lending of the prestige of the office usually address the issue in the context of current Canon 4 or new model Canon 3, which govern a judge's personal and extrajudicial activities. He suggested the issue be discussed further when the Committee considers those two canons.
After further discussion, the motion failed.
Chair Mattson said the Committee would continue its review, beginning with model Canon 2, at the next meeting.
There being no further business, the meeting was adjourned at 11:45 a.m.
Jim Ganje, Staff