Judiciary Standards Committee Minutes April 4, 2008

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee

Judiciary Standards Committee Doublewood Inn, Bismarck April 4, 2008

Members Present

Judge Douglas Mattson, Chair
Judge Zane Anderson
Linda Bata
Judge Sonja Clapp
Justice Daniel Crothers
Lisa Fair McEvers
Joe Larson II
Judge Steven McCullough
Judicial Referee Connie Portscheller

Members Absent

Dan Dunn (SBAND Liaison)
Paul Ebeltoft
Joel Fremstad
Rep. Kathy Hawken
Sen. Judy Lee
John Mahoney
Wayne Sanstead
Municipal Judge William Severin

Chair Mattson called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (March 27, 2008) - minutes of the January 11, 2008 meeting.

It was moved by Judge McCullough, seconded by Justice Crothers, and carried that the minutes be approved.

Review - (Annotated) 2007 ABA Model Code of Judicial Conduct and ND Code

Cont'd Review of (Annotated) Model Code Canon 2: Rules 2.11 - 2.16

Committee members continued review of Annotated Mode Code Canon 2 rules

Rule 2.11 (Disqualification). Staff noted that the Reporter's Explanation of Changes indicates Rule 2.11 is largely a restatement of Canon 3E, the previous disqualification provision. He said the notable new provisions in the model rule are the references to "domestic partner" throughout the rule, paragraph A(4) concerning disqualification based on the judge's knowledge that a lawyer or law firm involved in a proceeding contributed funds to the judge's election campaign, paragraph A(5) concerning disqualification based on the judge having made statements that appear to commit the judge to a particular result, and paragraph A(6)(b) concerning disqualification based on the judge having previously served in government employment as a lawyer or public official regarding the proceeding. He said rule proposals from Arkansas, Indiana, Minnesota, Ohio, and Oklahoma indicate that all have included paragraphs A(5) and A(6)(b) in their proposals. He noted that with respect to paragraph A(6)(b), Ohio changed "proceeding" to "particular matter". With respect to paragraph A(4), he said Indiana, Minnesota, and Ohio did not include the paragraph in their proposed amendments, while Oklahoma retained the paragraph with additional language and Arkansas deleted the paragraph but included related language in the Comment. He said Oklahoma had substituted "a member of the judge's household" for "domestic partner" throughout the rule. He then drew attention to Attachment C (March 27, 2008), the proposed amendments recommended by the Conference of Chief Justices. He said the CCJ recommends adding a new paragraph (D), which would provide that official communications received while performing judicial functions and information gained through training programs and from experience would not create a basis for disqualification. He said none of the noted states had included the recommended provision in their reports.

With respect particularly to paragraph A(2), staff noted the language concerning "a person within the third degree of relationship to either of them", which is a qualifier for the previous reference in the rule to "the judge, the judge's spouse or domestic partner". He said Oklahoma had changed "either" to "any".

Committee members then reviewed the particulars of Rule 2.11.

There were no changes to paragraph A(1).
It was moved by Judge Anderson and seconded by Justice Crothers that "either" be changed to "any" in paragraph A(2).

Lisa McEvers said "either" may be the appropriate word since "to either of them" modifies the reference to a person with a third degree of relationship and them relates back to "the judge, or judge's spouse or domestic partner". Judge McCullough agreed.

Justice Crothers said "any", as used in the Oklahoma revision, may be appropriate in light of the Oklahoma substitution of "a member of judge's household" for "domestic partner", thereby creating three possible relationships - the judge, the judge's spouse, or a member of the judge's household. Additionally, he said the Oklahoma use of a member of the judge's household may be a better alternative to domestic partner since use of the latter may be perceived as creating a new legal entity or concept under North Dakota law. He said Oklahoma had defined "member of the judge's household" as "any person residing in the judge's home on a permanent basis regardless of the relationship of that person to the judge". Staff noted that the explanation in the Oklahoma report for using the phrase was that the phrase was considered to be broader in meaning than "domestic partner".

Following further discussion, the motion failed.

It was moved by Justice Crothers and seconded by Joe Larson that paragraph A(2) and all other relevant references in the rules be modified to replace "domestic partner" with " a member of the judge's household", that the definition of "domestic partner" be deleted from the Terminology section, and that the definition of "member of the judge's household", as reflected in the Oklahoma report, be added to the Terminology section.

Justice Crothers suggested that the current definition, and use of, "members of the judge's family residing in the judge's household" should be reviewed on an individual basis to determine whether a more specific meaning is required.

Lisa McEvers recalled the Committee's earlier discussion of the issue and wondered why "domestic partner" should not be retained in the rules. Joe Larson said the definition of "member of the judge's household" does appear more inclusive and would arguably have broader scope with regard to those who may be considered as having influence over the judge.

Judge McCullough said there may be interpretive questions concerning what constitutes residing in the judge's household on a "permanent" basis.

Lisa McEvers said the rule's reference to " a person with a third degree of relationship", in concert with the suggested broader meaning of "member of the judge's household", may considerably extend the reach of the rule's disqualification requirements.

Judge Clapp observed that the current definition of "members of the judge's family residing in the judge's household" seems broad enough to encompass anyone who would be considered a domestic partner and including another, somewhat similar definition, may create unanticipated problems.

With respect to the proposed addition of the Oklahoma definition, Linda Bata said "permanent" may be a generally helpful qualifier but there is still uncertainty about application. She wondered, for example, whether a foster child or a foreign exchange student would be considered as residing in the household on "permanent" basis.

Justice Crothers agreed with concerns about the broader nature of the proposed definition and the possible expansion of the scope of the disqualification requirement.

Judge McCullough recalled the Committee's earlier discussion concerning retention of "domestic partner" and said he would oppose the motion for the sake of consistency with the earlier discussion.

The motion failed.

There were no other suggested changes to paragraph A(2).

With respect to paragraph A(3) concerning disqualification based on the presence of an economic interest in the subject matter, Linda Bata noted the reference to "any member of the judge's family residing in the judge's household". She said the definition of that phrase seems quite broad and essentially is a judge-based determination about who is in the judge's family.

Following discussion, there were no changes to paragraph A(3).

With respect to paragraph A(4) regarding disqualification based on previous lawyer or law firm contributions to the judge's election campaign, staff explained, as previously noted, that none of the referenced state reports had included the provision in their recommendations. Justice Crothers noted that the report from New Hampshire, which was just released, indicates the provision was retained by that study group.

Judge Mattson noted state laws regarding campaign contributions to judges were recently changed to require more disclosure.

It was moved by Judge McCullough and seconded by Judge Anderson that paragraph A(4) be deleted.

Lisa McEvers wondered how the situation would be handled, in the absence of a rule provision, if a party were to find out that a substantial contribution had been made to the judge's campaign by the other party's lawyer or law firm. Justice Crothers said under existing caselaw the party could file a motion requesting that the judge recuse from the case.

The motion carried.

With respect to paragraph A(5), which requires disqualification if the judge has made public statements that commit or appear to commit the judge to reach a particular result or rule in a particular way, Judge McCullough observed that the permissible activity of a judge or candidate for judicial office is extensively covered in ND Canon 5, largely as a result of amendments previously recommended by the Committee. Committee members agreed paragraph A(5) should be retained at this point and noted for further discussion when the Committee reviews Canon 4.

With respect to paragraph A(6)(a) regarding disqualification if the judge previously served as a lawyer in the matter in controversy, or was associated with a lawyer who participated in the matter, staff said the provision is essentially similar to ND Canon 3E(1)(b) except the model rule requires substantial participation by the associated lawyer.

There were no changes to paragraph A(6)(a).

With respect to paragraph A(6)(b) regarding disqualification if the judge previously served in government employment and participated as a lawyer or public official concerning a proceeding or expressed opinions on the merits of the matter, staff said the Reporter's Explanation of Changes indicates the rule provision is intended to make explicit what is stated generally in the Commentary to Canon 3E(1)(b).

Judge McCullough said the related Commentary is somewhat different and more vague than the language incorporated in the rule. The Commentary language, he said, links disqualification to questions about the judge's impartiality, while the rule requires personal and substantial participation as a lawyer concerning the proceeding or public expressions on the merits of the matter. The rule, he said, appears more restrictive.

Justice Crothers noted that the Ohio report replaces the reference to "proceeding" in paragraph A(6)(b) with "particular matter". He wondered whether that is a worthwhile change. Judge Mattson noted that "particular matter" is used as well later in paragraph A(6)(b).

It was moved by Justice Crothers and seconded by Judge Anderson that paragraph A(6)(b) be modified to replace "proceeding" with "particular matter".

Linda Bata wondered whether there is any particular significance in referring to a "particular" matter and said she preferred simply referring to "matter". She noted that "matter" is used in paragraphs A(6)(a), ( c), and (d).

Judge McCullough said "proceeding", rather than "matter", likely was used because that is the term used in the old Commentary, which formed the basis for the rule provision. He noted additionally that in government matters there sometimes will not be a "proceeding".

After discussion and with the consent of the second, the motion was amended to replace "proceeding" with "matter" and to delete "particular" as it later appears in paragraph A(6)(b).

Judge Clapp said of the definitions of "matter" and "proceeding" in Black's Law Dictionary, the definition of "proceeding" seems to be the broader in meaning and scope.

Following further discussion, the motion, as amended, carried.

There were no changes to paragraphs A(6)( c) or (d).

Justice Crothers noted that Ohio had added a new paragraph A(6), which requires disqualification if the judge knows that the judge's spouse or domestic partner or a person within a third degree of relationship has acted as a judge in the proceeding. He said the provision may be useful in explicitly addressing situations in which judges are, for example, married to each other. He noted, however, that the particular provisions of Rule 2.11 are not the exclusive bases for disqualification. The opening language of paragraph A, he said, underscores that disqualification is required when a judge's impartiality might reasonably be questioned in any proceeding, "including, but not limited to" the particular circumstances identified in the rule. Judge McCullough said the issue becomes important in light of Rule 2.7, which requires a judge to hear and decide matters unless disqualification is required under Rule 2.11 or other law.

There were no changes to paragraphs B or C of Rule 2.11.

Staff drew attention to new paragraph D recommended by the Conference of Chief Justices which would provide that "Official communications received in the course of performing judicial functions as well as information gained through training programs and from experience do not in themselves create a basis for disqualification."

Judge McCullough wondered what an "official communication received in the course of performing judicial functions" might be. He said the new paragraph seems inconsistent with the general structure of Rule 2.11 in that it identifies when disqualification is not necessary, while the rule generally discusses when disqualification is necessary. He said adding the new paragraph is likely unnecessary although language could be added to the Comment if attention to the issue is considered helpful.

Justice Crothers observed that there is an entire body of law that distinguishes between judicial knowledge and extra-judicial knowledge.

Committee members agreed the recommended new paragraph D should not be included in the black-letter rule.

Rule 2.12 (Supervisory Duties). Staff explained that Rule 2.12(A) provides that a judge must require court staff, officials, and others subject to the judge's direction and control to act in "a manner consistent with the judge's obligations" under the Code. He said the Reporter's Explanation of Changes indicates the particular language is used, instead of the ND Canon's reference to observing "high standards of fidelity and diligence that apply to a judge", to emphasize that court staff and others must act consistent with all of the judge's Code obligations.

Judge Mattson asked whether employees are now subject to any particular standards and, if so, wondered whether the broader language in paragraph A would pose any problems for employee obligations.

Staff noted that an Employee Code of Conduct was recently adopted by the Supreme Court and, by its terms, the Code is to be interpreted in a manner consistent with the Code of Judicial Conduct. He said, given the interpretive guidance set out in the Employee Code, there may be some points of tension between that Code and interpretations of the Code of Judicial Conduct.

Staff will review the recently adopted Employee Code of Conduct and report at the next meeting.

There were no changes to Rule 2.12(A).

Judge McCullough drew attention to Rule 2.12(B), which requires a judge with supervisory authority over for the performance of other judges to ensure the judges properly discharge their "judicial responsibilities". He wondered whether the reference to "judicial responsibilities" has a broad meaning or if a narrower application is intended.

It was moved by Judge McCullough, seconded by Justice Crothers, and carried that Rule 2.12(B) be modified to replace "judicial responsibilities" with "adjudicative duties".

Staff drew attention to new paragraph C recommended by the Conference of Chief Justices which would provide that "A judge should seek the necessary docket time, staff, expertise and resources to discharge all judicial and administrative responsibilities." He said the new paragraph was not adopted by any of the noted state study groups and the Oklahoma report indicates the language is already in the Rule 2.5 Comment and, therefore, was considered unnecessary as a rule provision.

It was moved by Linda Bata, seconded by Judge Anderson, and carried that paragraph C not be included in Rule 2.12 as it is duplicative of existing Comment language.

Rule 2.13 (Administrative Appointments). Staff noted that Rule 2.13 is essentially similar to ND Canon 3C(5) except for the inclusion of paragraph B, which generally prohibits the appointment of a lawyer who has contributed a defined amount to the judge's election campaign. He said Oklahoma included paragraph B in its recommended rules, while Arkansas, Indiana, Minnesota, and Ohio did not.
It was moved by Judge McCullough, seconded by Justice Crothers, and carried to delete paragraph B from Rule 2.13.

There were no other changes to Rule 2.13.

Rule 2.14 (Disability and Impairment). Staff noted that Rule 2.14 is an entirely new rule to address disability and impairment issues pertaining to judges.

Lisa McEvers noted that the rule discusses only impairment and questioned the inclusion of "Disability" in the title.

There were no changes to Rule 2.14.

Rule 2.15 - (Responding to Judicial and Lawyer Misconduct). Staff noted that Rules 2.15(A) and (B) are essentially similar to ND Canon 3D(1) and (2). He said Rules 2.15 ( C) and (D) apply to situations in which a judge receives information indicating a substantial likelihood that another judge has violated the Code or a lawyer has violated the Rules of Professional Conduct. The rule provisions, he said, are essentially similar to ND Canon 3D(1) and (2) except that the rules provide that the judge "shall" take appropriate action, while the ND canons provide that the judge "should" take such action. He noted that Indiana modified Rule 2.15( C) and (D) to refer to the judge receiving "credible" information. Additionally, he said ND Canon 3D(3) providing immunity from suit for actions by a judge in discharging disciplinary responsibilities would be deleted. He said the Reporter's Explanation indicates Canon 3D(3) was deleted in response to the conclusion that neither the ABA nor an adopting court is in a position to grant or deny judicial immunity in a rule.

With respect to the deletion of ND Canon 3D(3), Judge McCullough observed that the ND canon, in addition to providing immunity, provides that a judge's acts in the discharge of disciplinary responsibilities are "absolutely privileged". He said while it may be correct that immunity cannot be provided by rule, courts do have authority to control evidentiary matters. He said the privilege may be more appropriate for an evidentiary rule. But, he noted that Rule 2.15, if adopted, would mean the loss of the current immunity and privilege provisions.

There were no changes to Rule 2.15(A) or (B).

It was moved by Judge Anderson, seconded by Referee Portscheller, and carried that Rule 2.15( C) and (D) be modified to refer to the judge receiving "credible" information.

Rule 2.16 - (Cooperation with Disciplinary Authorities). Staff noted that Rule 2.16 is also an entirely new rule. He said the Reporter's Explanation indicates the rule was included to correct what was regarded as an important omission from the previous Model Code and to stress the importance of a judge's cooperation with disciplinary authorities.

Judge Anderson said the rule is a reasonable addition to the Code.

There were no changes to Rule 2.16.

Canon 3 Rules

Committee members then turned to a review of the Canon 3 rules.

Staff explained that the Canon 3 title is very similar to the title of ND Canon 4. The exceptions, he said, are the reference to "personal" activities, which is intended to address less formal, less public activities, and the reference to "obligations of judicial office", which is intended to emphasize that judges have a variety of duties that go to the judicial office.

Linda Bata wondered whether it would be more consistent with earlier discussions to use, in the title, "duties of judicial office", rather than "obligations of judicial office".

In response to a question from Lisa McEvers, Judge Clapp said Black's Law Dictionary defines "extrajudicial" generally as "that which is done, given, or effected outside the course of regular judicial proceedings".

Lisa McEvers said she had wondered whether there was value in referring both to "personal" and "extrajudicial" activities, but the definition indicates it may be worthwhile to retain both terms.

Judge Anderson said while he is unsure of the extent of the difference between "obligations" and "duties" of judicial office, there likely is not enough of a difference to change the title language.

There were no changes to the Canon 3 title.

Rule 3.1 (Extrajudicial Activities in General). Staff said Rule 3.1 is generally new, although some language from ND Canon 4A appears in the rule.

With respect to Rule 3.1(A), Committee members agreed "the judge's" should be deleted and "judicial duties" replaced with "duties of judicial office".

Judge McCullough observed that ND Canon 4A(1) refers to extrajudicial duties that "cast reasonable doubt on the judge's capacity to act impartially..." He said it is uncertain whether the change from "reasonable doubt" to references in Rule 3.1( C) and (D) to "reasonable person" was intended to be a significant change. Staff said the Reporter's Explanation indicates "reasonable person" was used because it was considered the more familiar standard and because of the criminal law connotation associated with "reasonable doubt".

Judge McCullough said the meaning is also unclear with respect to Rule 3.1(D), which prohibits a judge from engaging in conduct that a reasonable person might consider coercive. Staff said the Reporter's explanation indicates paragraph D was added to "guard against overt or subtle efforts by a judge to coerce others into participating in extrajudicial activities favored by the judge", which was considered particularly problematic in small communities with a small number of judges and lawyers.

Committee members tentatively agreed the black-letter language of Rule 3.1 may be acceptable but the Comment should be reviewed closely.

Rule 3.2 (Appearances before Governmental Bodies and Consultation with Government Officials). Staff noted that the opening paragraph of Rule 3.2 and paragraphs A and C are essentially similar to language in ND Canon 4C(1). He said paragraph B is new and would allow a judge to appear at a public hearing or consult with executive or legislative bodies "in connection with matters about which the judge acquired knowledge or expertise in the course of the judge's judicial duties."

Judge McCullough wondered what the purpose of paragraph B might be. Staff noted that the Reporter's Explanation indicates the provision was intended to reflect recognition that in the course of carrying out their judicial duties, judges often gain expertise and insight into legal and social problems as well as matters of public policy. Lisa McEvers wondered whether paragraph A(appearing in connection with matters concerning the law, legal system, or the administration of justice) would suffice to achieve the stated objective. Judge McCullough said paragraph B is arguably broader in its reach and would allow a judge to appear on matters that go beyond those identified in paragraph A. Judge Anderson said the Comment appears to clarify what would be permissible under the rule. Judge McCullough agreed. Judge Clapp noted that there are several pilot projects underway around the state and although they operate under the judicial system, a judge participating in the projects will often acquire particular knowledge that goes beyond narrow legal issues. She said she would want to be able to comment on how well the projects are working and achieving their purpose to ensure continued funding.

Following further discussion, there were no changes to Rule 3.2.

Rule 3.3 (Testifying as a Character Witness). Staff noted that ND Canon 2B requires that a judge not "voluntarily" testify as a character witness. He said the Indiana report indicates the rule was modified to place "except when duly summoned" immediately following "proceeding" rather than the phrase appearing at the end of the rule.

Judge McCullough said the placement of "except when duly summoned" at the end of the rule seems a too distant reference to the rule's general prohibition against testifying as a character witness.

Lisa McEvers wondered whether "duly summoned" means the same as "subpoenaed". She said if the same meaning is intended perhaps the rule should simply say "subpoenaed". Linda Bata noted that the Comment to the rule refers to a judge being "subpoenaed".

Judge Anderson suggested simply retaining the current language directing a judge to not "voluntarily" testify as a character witness.

Judge McCullough said he would prefer retaining the model rule's reference to "duly summoned", which would encompass any other possible methods of being called to testify in a proceeding.

After discussion, it was moved by Judge McCullough, seconded by Referee Portscheller, and carried that the rule be modified to place "except when duly summoned" at the beginning of the rule.

Rule 3.4 - (Appointments to Governmental Positions). Staff said Rule 3.4 is essentially the same as current ND Canon 4C(2) except for the model rule's inclusion of "board" in the kinds of governmental entities identified in the rule.

Judge Anderson noted that under N.D.C.C. � 44-02-05 a district judge may be "selected" by a board of county commissioners to act along with members of the board to appoint someone to fill a vacancy on the board of commissioners. He said the rule's general prohibition, with the narrow exception related to the law, legal system, or the administration of justice, may cause a problem for a judge selected as the statute provides. He suggested the rule should be modified to recognize situations in which a judge may be required by law to participate in the activities of some governmental entity.

After further discussion, it was moved by Judge Anderson, seconded by Judge McCullough, and carried that the rule be modified to add "or is authorized by law" to the end of the rule.

Rule 3.5 (Use of Nonpublic Information). Staff noted that Rule 3.5 is essentially similar to ND Canon 3B(12) except that the model rule provides that a judge shall not "intentionally" use or disclose nonpublic information.

Judge McCullough observed that "intentionally" is not defined in the Terminology, while "knowingly" is defined. He said the rule should use terms that are defined.

It was moved by Judge McCullough and seconded by Lisa McEvers that Rule 3.5 be modified to replace "intentionally" with "knowingly".

Joe Larson suggested "recklessly" should be included as well since a judge should not recklessly, or knowingly, use or disclose nonpublic information. It was noted that "recklessly" is not defined in the Terminology.

The motion carried.

It was moved by Joe Larson and seconded by Lisa McEvers that Rule 3.5 be further modified to include "or recklessly".

Linda Bata noted other provisions in the rules that require a judge to ensure that those subject to the judge's supervision do not engage in conduct that the judge is prohibited from doing. She wondered whether a judge could then be disciplined if an employee "recklessly" used or disclosed nonpublic information.

After further discussion, the motion failed.

Next Meeting

Chair Mattson said the Committee would continue its review, beginning with Rule 3.6, at the next meeting. There being no further business, the meeting was adjourned at 1:05 p.m.

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Jim Ganje, Staff