North Dakota Supreme Court
Judiciary Standards Committee
600 E Boulevard Ave Dept 180
Bismarck, ND 58505-0530
Brian Neugebauer, Chair
Re: Proposed Amendments to Canon 3B and C, Code of Judicial Conduct
Dear Chief Justice VandeWalle:
The Judiciary Standards Committee recently reviewed draft amendments to Canon 3B and C of the Code of Judicial Conduct submitted to it by the Gender Fairness Implementation Committee. Canon 3B governs a judge's ethical obligations with respect to adjudicative matters and Canon 3C governs ethical obligations with respect to administrative responsibilities. The draft amendments addressed conduct that may be perceived as sexual harassment and whether such conduct should be governed by the black-letter ethical canon rather than addressed in commentary. Following review, the Judiciary Standards Committee agreed the matter warranted attention in the Code's black-letter provisions.
The background information reviewed by the Committee indicated similar amendments have been recommended by the American Judicature Society to the ABA Joint Commission to Evaluate the ABA Model Code of Judicial Conduct. To date, the ABA Joint Commission has not included the recommended changes in its draft amendments to the Model Code. Committee members concluded there was no compelling reason to await action, if any, by the Joint Commission on this important subject, particularly since similar changes have been made to codes of judicial conduct in states such as Kansas, Idaho, and most recently in December 2003, California. The proposed amendments are briefly described below.
The proposed amendments to Canon 3B(5) would include language requiring a judge to refrain from speech, gestures, or other conduct that could reasonably be perceived as sexual harassment. The amendment would also require the judge to ensure the same conduct of those subject to the judge's direction and control. A related amendment would delete the reference to sexual harassment from the Commentary as it is now addressed in the black-letter canon. The proposed amendments would also include "court staff" among those identified in Canon 3B(4) whom a judge must treat with patience, dignity, and courtesy. This particular change has been included in draft amendments under consideration by the ABA Joint Commission.
The proposed amendments to Canon 3C would create a new provision, Section C(2), requiring that a judge, in the performance of administrative duties, not engage in speech, gestures, or conduct that could be reasonably perceived as sexual harassment. As with the proposed change to Canon 3B(5), language would be added to also require that a judge ensure the same conduct of those subject to the judge's direction and control. A relatively minor change to renumbered Section C(3) describes a judge's obligation to require staff and others to observe the "high" standards of fidelity and diligence that apply to the judge. The Committee declined to approve additional changes to this section included in the draft amendments submitted to it. Those amendments would have required a judge to ensure court staff and others observe the "high standards of conduct expressed in this code." This language is included in amendments under consideration by the ABA Joint Commission but Committee members were concerned that the more expansive language may inadvertently subject court staff, for example, to limitations in many areas of judicial conduct, such as political activity. There are other minor changes in renumbered Section C(4). No substantive change is intended.
The Judiciary Standards Committee voted unanimously to submit the proposed amendments to Canon 3B and C to the Supreme Court for its consideration. If I can be of any assistance in the Supreme Court's review of the proposed amendments, please do not hesitate to contact me.
Sincerely,
Brian Neugebauer, Chair
Judiciary Standards Committee