Members Present Justice Daniel Crothers, Acting Chair Judge Zane Anderson Judge Sonja Clapp Dan Dunn (SBAND Liaison) Joel Fremstad John Mahoney Lisa Fair McEvers Judge Steven McCullough Judicial Referee Connie Portscheller Wayne Sanstead Municipal Judge William Severin
Members Absent Linda Bata Paul Ebeltoft Rep. Kathy Hawken Joe Larson II Sen. Judy Lee Judge Douglas Mattson
Justice Crothers served as Acting Chair as Chair Mattson was unable to attend due to a
pressing family matter. Chair Crothers called the meeting to order at 10:00 p.m. and drew Committee
members' attention to the minutes of the June 10, 2008 meeting, which were distributed by email.
The minutes were approved as distributed.
Review - (Annotated) 2007 ABA Model Code of Judicial Conductand ND Code
Cont'd Review of (Annotated) Model Code Canon 3: Rules 3.13 - 3.15
Chair Crothers drew attention to background material distributed May 19, 2008, which
includes Rules 3.13 -3.15 along with rule provisions developed in other jurisdictions. He noted also
the ABA Comparison of the model rules with various state variations included as Attachment B
(September 5, 2008). Committee members then continued review of the Canon 3 rules, beginning
with Rule 3.13.
Rule 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things
of Value). Justice Crothers explained that Rule 3.13 represents a tiered approach to addressing
acceptance of the gifts, loans, bequests, etc., with paragraph (A) being the general prohibition,
paragraph (B) permitting acceptance without reporting, and paragraph ( C) permitting acceptance
but requiring reporting. He noted particularly that paragraph (A) incorporates a "reasonable person"
standard in determining whether acceptance of a particular item would appear to undermine a judge's
independence, integrity, or impartiality.
Judge McCullough observed that Ohio proposed changes to delete the reasonable person
standard from paragraph (A) and suggested the change may have been intended to establish a bright-line prohibition. Staff said the ABA Reporter's Explanation of Changes indicates, somewhat
unhelpfully, that the "reasonable person" language was included with the intention that it require
judges to evaluate conduct as a "reasonable person" would. It was noted that Ohio had then linked
modified paragraph (A) to the listing in paragraph (B) of things that can be accepted without
reporting. Ohio had also deleted the introductory language to paragraph (B). Judge McCullough said
he preferred the Ohio approach as it seems more precise in clearly declaring what is prohibited and
what can be accepted. Judge Clapp said she also tended to prefer the Ohio changes.
It was moved by John Mahoney and seconded by Judge McCullough that paragraph
(A) be modified to incorporate the Ohio changes, except for the additional language relating
to the judge's spouse, domestic partner, and other members of the judge's family residing in
the household, and that paragraph (B) be modified to delete the introductory language as
reflected in the Ohio changes.
Judge Anderson said "reasonable person" is a known standard and he preferred retaining the
model rule language. He observed that any of the allowed acceptances set out in subparagraphs (1) -
(7) could be abused and therefore incorporating a general reasonable person standard seems
John Mahoney said the Ohio approach provides more clarity and would appear to establish
a more restrictive standard, which is the better approach.
Judge McCullough noted that while deleting the reasonable person standard from paragraph
(A) and deleting the introductory language to paragraph (B), which referred back to the standard in
paragraph (A), the Ohio changes resurrected the reasonable person standard in subparagraph (8)
regarding acceptance of gifts, awards, or benefits associated with a business or other activity of a
spouse that incidentally benefits the judge.
Following further discussion, the motion carried.
It was moved by Judge McCullough, seconded by Wayne Sanstead, and carried that
subparagraph (8) be modified to include at the end of the subparagraph the following Ohio
language: ", provided the gift, award, or benefit does not give the appearance of influencing
the judge in his or her judicial dutiesthe performance of the duties of judicial office or
otherwise appear to a reasonable person to undermine the judge's independence, integrity, or
impartiality"with the added language further modified as indicated to reflect the Committee
decision regarding use of "duties of judicial office".
Judge McCullough drew attention to subparagraph (6)regarding the permitted acceptance
of scholarships, fellowships, and other awards if they are available on the same terms to similarly
situated persons who are not judges. He noted that he has attended judicial seminars after having
received a scholarship. He wondered how those scholarships, offered to judges, could be available
to someone who is not a judge. Justice Crothers observed that receiving scholarships for attendance
at judge-only seminars is likely addressed by Rule 3.14, otherwise there would be a difficult conflict
that would require attention.
Judge McCullough drew attention to paragraph (7) and the phrase "official use", which
modifies the acceptance of books, magazines, and other materials on a complimentary basis. He
wondered whether the phrase should be changed to "duties of judicial office".
Lisa McEvers noted that there are many kinds of complimentary magazines received in an
office that might not be provided for "official use".
Judge Anderson recommended retaining the model rule reference.
It was moved by Judge McCullough, seconded by Lisa McEvers, and carried that
paragraph (7) be modified to replace "official use" with "use in the duties of judicial office".
With respect to revised paragraph (B), Justice Crothers noted that Ohio proposed adding
three subparagraphs addressing various other kinds of gifts and invitations. He said Oklahoma
proposed a new paragraph that explicitly permit acceptance of scholarships, fellowships, and similar
benefits or awards specifically for judicial education.
With respect to paragraph ( C), which permits acceptance of various things but requires
reporting, Justice Crothers explained that Minnesota proposed deleting the entire paragraph and the
other state provisions reflected in the May 19 material propose various revisions.
Judge Anderson said a simplified reporting process would be a positive change. He noted
that Ohio's proposed changes retain the model rule reporting in accordance with Rule 3.15 and
would move the required reporting items from paragraph ( C) to revised paragraph (B). Judge McCullough suggested incorporating in paragraph ( C) something similar to the current
requirement in ND Canon 4D(h) that if the value of a gift, bequest, loan or favor exceeds $150, the
judge must report it in the same manner as compensation is reported under Canon 4H. He said a
reporting requirement linked to some threshold level of value should be considered with respect to
acceptance of any gift, benefit, etc. Below the threshold value, he said, reporting would not be
Joel Fremstad suggested reporting linked to an aggregate amount may be an alternative to
consider. He noted that the Ohio provision requires reporting in accordance with Rule 3.15, but that
rule was modified to refer to filing a disclosure statement as required by Ohio law.
Judge Anderson suggested, and Committee members agreed, a reporting requirement linked
to a particular dollar amount is something that can be discussed during the review of Rule 3.15.
Judge Anderson said he would prefer that some of the items listed in paragraph ( C), for
which reporting is required, be relocated to revised paragraph (B). He said the number of things for
which reporting is required raises concern because it increases the chances for innocent mistakes
Judge Clapp noted that judges sometimes receive scholarships for educational events
conducted by private entities, such as the Brookings Institute, and sometimes receives scholarships
from non-private entities, such as the Judicial College. The concern, she said, is whether acceptance
of those scholarships would be allowed and whether they must be reported. Justice Crothers said the
issue is addressed too some degree in the Comment to Rule 3.14.
Judge McCullough observed that the Ohio changes appear to have drawn a distinction
between acceptance of gifts, etc., and reporting, with acceptance being governed by Rule 3.13 and
reporting being governed by Rule 3.15. He said Model Rule 3.13 seems to combine the acceptance
and reporting concepts. He said he preferred the Ohio approach. Justice Crothers said the Ohio
approach may reflect that Ohio has an external, statutory reporting requirement, while North Dakota
does not. However, he agreed a possible approach could be to follow the general structural approach
taken in Ohio, i.e., Rule 3.13 would address what can and cannot be accepted, and Rule 3.15 would
address reporting requirements.
Judge McCullough agreed with Judge Anderson's suggestion to move the items identified
in paragraph ( C) to revised paragraph (B) and retain in paragraph ( C) the general direction to refer
to Rule 3.15 for reporting requirements. He said the determination can then be made whether to
identify those things for which reporting is and is not required. Judge Anderson agreed.
It was moved by Judge Anderson and seconded by Judge McCullough that
subparagraphs (1)-(3) in paragraph ( C) be relocated to revised paragraph (B) and that the
introductory language to paragraph ( C) be modified as indicated in the Ohio revisions to
establish the reporting cross-reference.
In response to a question from Lisa McEvers, Judge McCullough said Rule 3.15 could then
be modified to indicate which specific items in Rule 3.13 must be reported, with acceptance of other
items perhaps being reported based on an aggregate amount of value.
After further discussion, the motion carried.
Rule 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges). Justice Crothers
described Rule 3.14 as essentially the "judge only" rule.
Judge McCullough expressed concern about the reference to "extrajudicial activities" because
it is unclear exactly what the phrase might mean.
Justice Crothers noted that Ohio had deleted the references in paragraph (A) to "Rules 3.1
and 3.13(A) or other law" and added a new subparagraph in paragraph (A), but otherwise did not
substantially revise the rule.
Lisa McEvers drew attention to the new subparagraph Ohio added to paragraph (A), which
requires that the source of any reimbursement or waiver received by a judge not give the appearance
of influencing the judge or otherwise appear to a reasonable person to undermine the judge's
independence, integrity, or impartiality. She suggested the provision may be a worthwhile addition
to the rule. Justice Crothers noted that ND Canon 4H(1), which addresses similar issues, refers to
the source influencing the judge's performance or otherwise giving the appearance of impropriety.
Judge McCullough noted the general prohibition in Rule 3.1 against participating in activities
that would appear to a reasonable person to undermine the judge's independence', integrity, or
impartiality. Justice Crothers said Ohio seems to have imported that concept into paragraph (A) as
the new subparagraph.
Judge McCullough suggested it may be the better choice to retain the model rule approach
in paragraph (A).
Joel Fremstad noted that the previous changes to Rule 3.13, in following the Ohio changes,
removed the reasonable person/independence, integrity, impartiality language, but Ohio now
resurrects the language in paragraph (A) of Rule 3.14. He wondered why that change may have been
made. Justice Crothers observed that the current cross-reference in paragraph (A) to Rule 3.1
supplies the link to considerations of independence, integrity, and impartiality. He said Ohio had
deleted the cross-reference to Rule 3.1 so Ohio's incorporation of similar language in the new
subparagraph may be a method of reestablishing consideration of matters perceived as affecting a
judge's independence, integrity, or impartiality.
Judge McCullough drew attention to the reference in paragraph (A) to "Unless otherwise
prohibited by ... Rule 3.13(A)" and noted the reference to the rule was deleted in the Ohio changes.
He said, given the earlier changes to Rule 3.13(A), it would be consistent to delete the reference to
Rule 3.13(A) from paragraph (A).
It was moved by Judge McCullough, seconded by John Mahoney, and carried that the
reference to Rule 3.13(A) be deleted from paragraph (A) of Rule 3.14.
With respect to paragraph (B) of Rule 3.14, Justice Crothers noted that Ohio had added
language providing that any reimbursement in excess of actual cost of food, travel, lodging, or other
incidental expenses is considered compensation and must be reported under Rule 3.15. He said the
general requirement is also reflected in ND Canon 4H(b). He said leaving out the similar Canon
4H(b) languagewould represent a substantive change.
John Mahoney asked whether the model rule is more restrictive in that it does not appear to
permit receiving reimbursement in excess of the actual cost. He wondered whether reimbursement
over the actual cost should be allowed, even if the excess is reported as compensation.
It was moved by Judge McCullough and seconded by Referee Portscheller that
paragraph (B) be modified to include the language reflected in the Ohio changes.
John Mahoney asked whether a judge could receive, for example, $1500 for reimbursement
of expenses for which the actual cost was $200 and then report the excess as compensation. Judge
McCullough said a judge receiving reimbursement for food, travel, lodging, or other incidental
expenses must show that the expense was "necessary", which should limit receiving an excessive
reimbursement that could then be kept and reported as compensation.
John Mahoney wondered whether the general limitations of Rule 3.1 should apply to
paragraphs (B) and ( C), as well as paragraph (A). That, he said, may address situations in which
a judge were to receive, as "compensation", an amount considerably above the amount of expenses
incurred by the judge.
Judge McCullough noted that, under Rule 3.12, a judge is permitted to be reasonably
compensated for extrajudicial activities, as long as acceptance of the compensation would not appear
to a reasonable person to undermine the judge's independence, integrity, or impartiality.
After further discussion, the motion carried.
With respect to paragraph ( C), staff observed that Minnesota, Oklahoma, and Hawaii had
deleted paragraph ( C), which requires reporting by the judge of any reimbursement of expenses or
waivers of fees received on behalf of the judge or the judge's spouse, domestic partner, or guest.
Joel Fremstad suggested modifying paragraph ( C) in a manner similar to the change to
paragraph ( C) of Rule 3.13, i.e., simply limit the paragraph to a requirement that any reimbursement
or waiver accepted under Rule 3.14 must be reported in accordance with Rule 3.15.
Justice Crothers noted that current ND Canon 4H only requires reporting of compensation.
He said paragraph ( C) would appear to require a judge to report reimbursement from, for example,
the Brookings Institute for attendance at a seminar sponsored by the Institute. That, he said, would
be a change from the current canon provision. The question, he said, is whether a substantive
reporting requirement should be retained in paragraph ( C) of Rule 3.14 or placed in Rule 3.15.
Judge McCullough said paragraph ( C) appears to already establish a reporting requirement,
with reporting done in accordance with Rule 3.15. He said paragraph (A) outlines the kinds of
reimbursements and waivers a judge may accept and paragraph (B) more particularly addresses
permissible reimbursement for travel, food, lodging, and other incidental expenses.
Joel Fremstad asked whether paragraph ( C) should also address compensation. Judge
McCullough said it may be preferable to not address either reimbursement or compensation in
paragraph ( C) and, instead, leave reporting to be addressed in Rule 3.15.
Joel Fremstad noted that Rule 3.15 describes what must be reported and suggested that
paragraph ( C) of (modified) Rule 3.13 and paragraph ( C) of Rule 3.14 could perhaps simply be
Justice Crothers observed that there is nothing said about reporting in Rule 3.12 governing
compensation as the reporting requirement is set out in Rule 3.15(A)(1).
It was moved by Joel Fremstad and seconded by Wayne Sanstead that modified
paragraph ( C) of Rule 3.13 and paragraph ( C) of Rule 3.14 be deleted.
Judge McCullough said he would support the motion but would recommend adding specific
language in the Comments regarding reporting. Joel Fremstad noted that Comment  to Rule 3.12
draws attention to the reporting requirement under Rule 3.15.
The motion carried.
Rule 3.15 (Reporting Requirements).
Justice Crothers noted that with respect to paragraph (A)(1) regarding reporting of
compensation, Hawaii had incorporated a dollar amount - $1000 or more - as the level of
compensation that would trigger reporting. With respect to paragraph (A)(2) and the bracketed
"[insert amount]" regarding gifts and other things of value, he said Indiana had inserted $150 as the
amount that would trigger reporting.
With respect to paragraph (A)(1), Lisa McEvers asked whether there should be a reference
to Rule 3.14 in light of that rule having categorized reimbursement over the actual cost of expenses
as compensation. Judge McCullough said a cross-reference is likely unnecessary because Rule 3.14
simply declares the amount of excess reimbursement as being compensation. That, he said, should
then bring the compensation under the purview of Rule 3.12, which is referenced in paragraph
Judge McCullough said he would prefer a de minimis provision in paragraph (A)(1) because
situations rarely occur in which per diem received by a judge will exceed actual expenses by a
significant amount. He said if a de minimis standard is included in the rule, then a judge would not
have to report those small amounts. Additionally, he suggested it may be worthwhile to consider
including a provision addressing receipt of several amounts that exceed an identified aggregate total.
Justice Crothers wondered whether there may be some confusion about reporting if a cross-reference to Rule 3.14(B) regarding excess reimbursement is not included in Rule 3.15. Judge
McCullough suggested the matter could be addressed by including language in the Rule 3.14
Comment that clarifies that excess reimbursement, as compensation, is subject to reporting.
Judge Anderson said he preferred the Hawaii change, which identified $1000 or more as the
dollar amount of compensation that would trigger the reporting requirement. In response to a
question from Judge McCullough, Judge Anderson agreed an aggregate provision should be
included. Justice Crothers wondered whether it would be possible to track the language in paragraph
(A)(2), which requires reporting of gifts or other things if the value, "alone or in the aggregate with
other items received from the same source in the same calendar year" exceeds a certain amount.
It was moved by Judge Anderson and seconded by Joel Fremstad that paragraph (A)(1)
be modified to include $1000 in the aggregate as the amount that would trigger reporting.
Judge McCullough said $1000 seems to be a high amount. Judge Anderson said if a judge
is involved in an extrajudicial activity, such as refereeing, it may not be that difficult to reach a
$1000 level of compensation. In response to a question from Judge McCullough, Judge Anderson
said his motion contemplated the receipt of $1000 as the total of a several payments from same
source. Judge McCullough said he would consider $1000 as a high amount to be received and then
reported if the payments were received from the same source. He said it appears the intent of rule
is to address situations in which money is being paid to a judge in ways that may influence the judge.
To that end, he suggested the dollar amount that a judge could receive before reporting is required
should be lower.
It was moved by Judge McCullough, seconded by John Mahoney, and carried that the
motion be amended to change the dollar amount to $500 and to incorporate the "alone or in
the aggregate from the same source" language reflected in paragraph (A)(2). (6-yes; 3-no)
The motion, as amended, carried.
Joel Fremstad drew attention to the reference in paragraph (A)(2) to Rule 3.13( C), which
would be an incorrect reference in light of the earlier changes to Rule 3.13. He suggested the Rule
3.13 reference should be linked to those items identified as subparagraphs (1)-(3) of Rule 3.13( C),
which were relocated to follow the listing of items in modified paragraph (B) of Rule 3.13.
It was moved by Joel Fremstad, seconded by Judge McCullough, and carried that the
reference to Rule 3.13( C) be modified as described.
With respect to the dollar amount to be inserted in paragraph (A)(2), it was moved by Joel
Fremstad that $150 be included in the paragraph. The motion died for lack of a second.
It was moved by Judge Anderson and seconded by Wayne Sanstead to select $250 as
the dollar amount to be included in paragraph (A)(2).
Lisa McEvers said gifts should be treated differently from compensation and she would
regard $250 as too high of a value to be received before reporting is required.
The motion carried. (5-yes; 4-no)
With respect to paragraph (A)(3), which governs reporting of reimbursement of expenses
and waivers of fees or charges, Joel Fremstad asked whether there is a substantive difference in the
kinds of reimbursements addressed in paragraphs (A)(2) and (A)(3) that would justify selecting a
different dollar amount for (A)(3) than was selected for (A)(2). As with paragraph (A)(2), paragraph
(A)(3) would require reporting if the amount exceeded a certain level.
Justice Crothers noted that current ND Canon 4H does not require reporting of
reimbursements, but rather requires reporting of compensation. He said paragraph (A)(3), in
requiring the reporting of reimbursements would represent a substantive change from the current
It was moved by Joel Fremstad and seconded by Lisa McEvers that $1000 be selected
as the amount reflected in paragraph (A)(3).
Judge Clapp gave the example of attending a course at the National Judicial College which
cost $1500 and for which the judge received a scholarship of $700. That, she said, would not be
reported. However, she said, if the judge attended a second, similar course in the same year and
received the same scholarship, then reporting would be required.
After further discussion, the motion carried. (5-yes; 3-no)
Judge Anderson questioned the need to establish a new reporting requirement for
reimbursements when the current canon does not require reporting.
It was moved by Judge Anderson and seconded by Judge Clapp that paragraph (A),
as amended, be deleted.
Justice Crothers noted that paragraph (A)(3) was deleted in the changes proposed by
Minnesota, Hawaii, and Oklahoma.
Judge Anderson said there apparently has been no problem under the current canon's
reporting requirement, which suggests creating a new requirement is not necessary.
Justice Crothers observed that deleting paragraph (A)(3) would mean that compensation
would be reported in accordance with paragraph (A)(1), which would be similar to the current
reporting requirement under ND Canon 4H(2).
Dan Dunn said it is important that the public be aware of trips and other functions in which
judges participate. He said transparency is better served by retaining the reporting requirement and
he would, therefore, oppose the motion.
The motion carried. (5-yes; 4-no).
Judge McCullough drew attention to paragraph (B), which describes the particulars of what
must be reported by the judge if reporting is required under paragraph (A). He said the concluding
reference to reimbursement of expenses or waivers should be deleted in light of the decision to delete
the corresponding paragraph (3) in paragraph (A).
It was moved by Judge McCullough, seconded by Judge Anderson, and carried that
paragraph (B) be modified to replace "reimbursement of expenses or waiver or partial waiver
of fees or charges" with "compensation or gifts and other things of value".
Judge McCullough drew attention to paragraph ( C), which governs when reports must be
made. He said in light of the deletion of paragraph (A)(3) regarding reimbursement reporting, the
last clause of paragraph ( C), which governs the time within which reporting of reimbursements must
be made, should also be deleted.
It was moved by Judge McCullough, seconded by Referee Portscheller, and carried that
paragraph ( C) be modified as described.
With respect to paragraph (D) regarding the filing of required reports, it was moved by
Judge McCullough, seconded by John Mahoney, and carried that paragraph (D) be modified
to read: "Reports made in compliance with this Rule shall be filed as public documents in the
office of the clerk of the supreme court."
Judge Anderson noted that Minnesota added a new paragraph (E), which provides that
income from investments is not extrajudicial compensation if the judge does not render current or
future service in exchange for the income. He said it may be worthwhile to consider a similar
Judge McCullough said the provision may be a useful addition but it may be better placed
in a Comment. Justice Crothers agreed. Committee members generally agreed the matter should
be revisited when the Comment is reviewed.
Chair Crothers said the Committee would take up consideration of Canon 4 regarding
political activity at the November meeting.
There being no further business, the meeting was adjourned at 1:20 p.m.