Judiciary Standards Committee Minutes August 28, 2009

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee

Doublewood Inn, Bismarck August 28, 2009

Members Present
Judge Douglas Mattson, Chair
Linda Bata
Judge Sonja Clapp
Justice Daniel Crothers
Daniel Dunn (SBAND Liaison)
Paul Ebeltoft
Joel Fremstad
Rep. Kathy Hawken
Joe Larson II
Sen. Judy Lee
John Mahoney
Judge Steven McCullough
Lisa McEvers
Municipal Judge William Severin
Judge Mikal Simonson

Members Absent
Ron Carlisle
Judicial Referee Connie Portscheller

Chair Mattson called the meeting to order at 9:00 a.m. and drew Committee members' attention to the minutes of the June 9, 2009 meeting, which were distributed by email.

It was moved by Joel Fremstad, seconded by Dan Dunn, and carried that the minutes be approved.

Review - 2007 ABA Model Code of Judicial Conduct and ND Code

Comment Review - Cont'd

Committee members continued review of rule comments in light of revisions, if any, to the model rules under review. As a reference point, staff drew attention to Attachment B (August 20, 2009) - revised memorandum regarding comment review issues related to amendments to the model rules.

Canon 3 Rules

Rule 3.1 (Extrajudicial Activities in General). Staff said the Committee revised paragraph (A) to refer to "duties of judicial office", which does not appear to require a related amendment to the comment.

There were no changes to the comment.

Rule 3.2 (Appearance before Governmental Bodies and Consultation with Government Officials). Staff said the Committee revised paragraph (B) to refer to "duties of judicial office", which does not appear to require any related amendments to the comment.

There were no changes to the comment.

Rule 3.3 (Testifying as a Character Witness).Staff said the model rule was modified to clarify, by changing location of the phrase, application of language relating to a judge being "duly summoned" to testify in a proceeding. He said the revision does not appear to require any changes to the comment. He noted, however, the reference in the comment to "abuses the prestige of judicial office", which reflects the model rule change from the current Code reference (lending the prestige of judicial office). He said the Committee had previously concluded that the current Code reference should be retained.

It was moved by Judge McCullough, seconded by Paul Ebeltoft, and carried that "abuses the prestige of judicial office" be changed to "lends the prestige of judicial office.

Rule 3.4 (Appointments to Governmental Positions). Staff said the model rule was amended (to allow appointment to a governmental position if "authorized by law") to recognize situations under N.D.C.C. § 44-02-05 in which a judge may be appointed to act with county commissioners to fill a commission vacancy. He distributed a draft comment [3] for Committee review in the event an explanation of the authorization would be considered useful. A copy of the draft comment is attached as Appendix A.

Joel Fremstad asked whether "authorized by law" in the rule and draft comment is the proper expression. He said the statute appears to require, rather than merely authorize, involvement of a judge. He suggested "mandated by law" or "provided by law" as an alternative phrase.

Judge McCullough observed that the commentary to current Canon 4C(2) uses the term "authorized" with respect to permissible acceptance of a governmental position.

Judge Simonson suggested that the statute should probably be amended to remove the district judge reference as the judge's role is likely a hold-over from when county judges were involved.

Sen. Lee said the Association of Counties should be contacted to determine whether there would be any concerns about changing the statute. Additionally, she asked whether a bill draft should be considered or whether the matter should be referred to the Supreme Court for consideration. Justice Crothers said one option may be to recommend that the Supreme Court review the appropriateness of a district judge's involvement under the statute and pursue whatever action is considered necessary.

Staff noted that if the district judge involvement is removed from the statute, then there may be a question about whether some other official should be identified to participate in the selection process.

It was moved by Joe Larson, seconded by Sen. Lee, and carried that the issue be referred to the Chief Justice for consideration of the appropriateness of judicial involvement under Section 44-02-05.

There were no changes to the draft comment.

Rule 3.5 (Use of Nonpublic Information). Staff said the model rule was amended to substitute "knowingly" for "intentionally" with respect to disclosure or use of nonpublic information as "knowingly" is a defined term. Additionally, he said the rule was amended to refer to "duties of judicial office".

There were no changes to the comment.

Rule 3.6 (Affiliation with Discriminatory Organizations). Staff said there were no revisions to the rule and, therefore, related changes to the comment appear unnecessary.

Judge McCullough drew attention to Comment [4], which provides that a judge's membership in a religious organization as a lawful exercise of the freedom of religion does not violate the rule. He said his first question is whether the reference to "religious organization" in the comment should be modified to refer to a "bona fide" religious organization. He said there are examples of entities that might claim to be a religious organization, but there may be some doubt regarding whether the entity is bona fide religious organization. A more important question, he said, is whether it is appropriate for freedom of religion to be given more importance than freedom of association when both are constitutionally protected rights. Additionally, he asked whether Comment [4] seemingly overrides the black-letter prohibitions of the rule with respect to organizations that practice invidious discrimination.

Justice Crothers said the likely intent of the comment is to avoid a First Amendment challenge to the rule based on freedom of religion.

Staff said the ABA Reporter's Explanation explains that "[t]he tenor of new Comment [4] was implicit in the Commentary to Canon 2C of the 1990 Code. Comment [4] makes clear that while many religious organizations engage in some forms of discrimination, and some religious organizations may engage in some invidious discrimination, participation by a judge in any bona fide religious organization cannot be prohibited or punished by governmental authorities because of the constitutional guarantee of the free exercise of religion."

Judge McCullough said the focus of the rule is on a judge's "membership" in an organization, which invites the question regarding why freedom of association is given lesser status than freedom of religion with respect to the rule's prohibitions.

In response to a question from Sen. Lee, Judge McCullough suggested one solution to the issue may be to simply delete Comment [4]. Lisa McEvers said deleting the comment may invite a constitutional challenge to the rule. Judge McCullough responded that a constitutional challenge will arise only if a judge is complained against and discipline is imposed for violating the rule, which may be an unlikely occurrence. He said another reason for deleting the comment is that a comment should not have the substantive effect of overriding a black-letter rule prohibition.

Staff noted that the Model Code Scope section explains, in part, that comments are to "provide guidance regarding the purpose, meaning, and proper application of the Rules"; they "contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct"; and the "[c]omments neither add to nor subtract from the binding obligations set forth in the Rules".

Paul Ebeltoft suggested Comment [4] serves more to confuse than explain application of the rule.

It was moved by Paul Ebeltoft and seconded by Judge McCullough that Comment [4] be deleted from Rule 3.6

Sen. Lee asked how the rule would apply with respect to a judge who, for example, is a member of the Evangelical Lutheran Church of America in light of the recent decision to allow a congregation not to hire a pastor who is in a committed gay relationship. That, she said, would seem to be contrary to the rule's prohibition against membership in an organization that discriminates based on sexual orientation, one of the identified categories in the rule.

Paul Ebeltoft said the example seems to illustrate the tension that Rule 3.6(A) creates for judges with respect to the actual meaning of the limitation. He wondered whether it is appropriate to use the comment to eliminate that tension and to possibly allow some conduct that the rule may otherwise prohibit. Joe Larson said there likely is no tension in the rule as the operative wording in the comment is the "lawful exercise of the freedom of religion."

Paul Ebeltoft said judges will have difficult decisions to make with respect to application of Rule 3.6(A) regardless of whether Comment [4] is deleted. He said the important modifier in the rule is "invidious" with respect to the kind of discrimination. He said there may be arguable reasons why a particular kind of discrimination is not considered "invidious", and judges have a certain risk in determining their association with an organization that discriminates on one basis or another.

In response to a question from Judge McCullough regarding whether "invidious" also means "illegal", Joe Larson said he would consider invidious as generally synonymous with illegal, but there may certain exceptions.

Justice Crothers recalled the Committee's earlier discussion of the rule and the approach taken in Minnesota which replaced "invidious" with "unlawful". Linda Bata wondered whether there is a workable, useful definition of "invidious".

Following further discussion, the motion carried (8 - yes; 4 - no).

Judge Simonson wondered why comment [5], which provides that the rule does not apply to national or military service, is included in the rule. Staff said the ABA Reporter's Explanation notes that "military organizations often engage in discrimination or sometimes engage in discrimination that would be found to be invidious in other contexts", but "practical difficulties involved in enforcing a ban on holding membership in military organizations, and the necessity for uniform rules across the military service, justified an interpretation that service in state or national military organizations does not violate the Rule".

Rule 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities). Staff said paragraph (A)(4) of the model rule was amended to permit a judge's participation (appearing, speaking, receiving an award, allowing use of the judge's title) in an event with a fund-raising purpose only if doing so does not reflect adversely on the judge's independence, integrity, or impartiality. The model rule language, which was deleted, allowed participation only if the event concerned the law, the legal system, or the administration of justice. He said the Committee's revision to the model rule was based on rule changes made by Ohio study group, which did not make any related changes to the comment.

Staff said paragraph (A)(5) was amended to change language regarding a judge's making recommendations about fund-raising programs and activities of an entity. The revision was based on rule changes made by the Minnesota study group, which did not make any related changes to the comment.

Staff noted that Comment [3], on the 5^th line, and Comment [5], on the 3^rd line, refer to"abuse" of the prestige of judicial office. He said these references would be inconsistent with the Committee's earlier revisions, particularly with respect to Rule 1.3, regarding retention of references to "lending" the prestige of judicial office.

It was moved by Sen. Lee, seconded by Rep. Hawken, and carried that Comments [3] and [5] be revised to replace "abuse" with "lend" in the noted locations.

There were no other changes to the comments.

Rule 3.8 (Appointments to Fiduciary Positions). Staff said paragraph (A) of the model rule was amended to refer to "duties of judicial office". He said for purposes of consistency, paragraphs (B) and (D) were amended to refer to fiduciary "capacity" rather than "position". He said there is no Comment language directly related to or affected by these amendments, therefore changes to the Comment appear unnecessary.

With respect generally to the revisions related to "duties of judicial office", Judge Severin noted that the title of Canon 3 refers to the "obligations of judicial office". He asked whether there is an inconsistency in using "obligations" in the canon but "duties" elsewhere in the rules.

It was moved by Linda Bata, seconded by Judge Clapp, and carried to replace "Obligations" with "Duties" in the Canon 3 title.

Rule 3.9 (Service as Arbitrator or Mediator). Staff said the model rule was amended to refer to "duties of judicial office", which does not appear to require any changes to the Comment. He drew attention to the explanation in Comment [1] that a judge is not prohibited from participating in arbitration, mediation, or settlement conferences performed as part of "assigned" judicial duties. He said the reference to "assigned" may be a point for review.

Judge McCullough noted that some judges participate in mediation as provided by court rule, but wondered whether the reference to "assigned" judicial duties is accurate.

It was moved by Judge McCullough, seconded by Justice Crothers, and carried that the Comment be revised to replace "assigned judicial duties" with "the duties of judicial office".

Staff drew attention to the Commentary to current ND Canon 4F (the counterpart to Rule 3.9), which provides that "service as a tribal judge by a county or district judge, with the approval of the Supreme Court, is not considered the performance of judicial functions in a private capacity". He said the language was added to the current canon in recognition of instances in which judges, then more often county judges, had served as tribal judges. He noted that Rule 3.9 does not contain the reference to "private capacity".

In response to a question from Justice Crothers, staff said he is unaware of any district judges having recently served as tribal judges.

It was moved by Justice Crothers and seconded by John Mahoney that the Comment to Rule 3.9 be modified to include language similar to that included in the Commentary to current Canon 4F.

Judge McCullough wondered whether the language should center on being expressly authorized by law, which is referenced in the rule. He said Supreme Court approval for a judge to serve as a tribal judge would likely be considered the equivalent of being authorized by law. Justice Crothers asked whether it would be appropriate to identify service as a tribal judge as not being the performance of judicial duties, which would be the consequence of mirroring the current Canon 4F Commentary language.

Linda Bata suggested adding a second comment to provide that the rule does not prohibit a district judge from serving as a tribal judge with the approval of the Supreme Court. She also suggested that the reference to "those duties" in the last sentence of Comment [1] be changed to "the duties of judicial office" for purposes of clarification.

Following further discussion, the suggested changes were accepted as a friendly amendment to the motion.

The motion, as amended, carried.

Rule 3.10 (Practice of Law). Staff said there were no revisions to the model rule, and therefore revision-related changes to the comment appear unnecessary. He drew attention to language unique to North Dakota in the Commentary to Canon 4G, the equivalent to Rule 3.10, which addresses service as a military judge advocate. He said the language, added in response to a specific question regarding the potential impact of the ethical limitation on military service, provides: " For purposes of the prohibition under this Canon and N. D. Const. art. VI, § 10, against the practice of law, service in a judge advocate position in a military reserve or guard unit may constitute the practice of law, unless the duties are judicial in nature." He said the language was added to alert state judges to possible ethical issues if they should perform legal work apart from judicial functions while serving as a judge advocate.

Joe Larson cautioned that those who serve in a judge advocate's office often perform a wide variety of legal work in addition to possibly serving as military judges. He said a strict limitation on what a judge in military service can do may result in fewer judge's being able to serve in the guard or reserve.

Justice Crothers said the constitutional provision prohibiting the practice of law is clear, which the current Commentary recognizes. He noted that ethics opinions in a variety of jurisdictions have reached differing conclusions on this issue.

It was moved by Justice Crothers, seconded by Dan Dunn, and carried that the current commentary language be added as Comment [2] to Rule 3.10.

Rule 3.11 (Financial, Business, and Remunerative Activities). Staff said paragraph ( C)(1) was amended to refer to "duties of judicial office".

Committee members agreed the reference to "judicial duties" in Comment [1] (line 9) should be changed to "duties of judicial office".

There were no other changes to the comment.

Rule 3.12 (Compensation for Extrajudicial Activities). Staff said there were no revisions to the model rule and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 3.13 (Acceptance of Gifts, Loans, Bequests, Benefits, or Other Things of Value). Staff said there were numerous revisions to the rule based on the Committee's review of and preference for the approach taken by the Ohio study group (see minutes of the September 12, 2008,meeting).He said in addition to the Ohio-related revisions, the Committee restructured the rule to address only the acceptance of gifts, etc., and moved reporting requirements to Rule 3.15. He distributed for Committee review draft amendments to the Rule 3.13 comment which follow the amendments made by the Ohio study group in response to their rule amendments. He said language is also included on page 4, lines 9-10 and 17-18 to explain reporting requirements under Rule 3.15. A copy of the draft amendments is attached as Appendix B.

Sen. Lee wondered why gifts from family members would be subject to reporting. Judge McCullough said the issue is likely one for discussion when Rule 3.15 is reviewed.

There were no changes to the draft comment revisions.

Rule 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges).Staff said paragraph (B) of the model rule was amended to include a requirement that any reimbursement for travel, food, lodging, etc., above the actual cost must be reported as compensation. He said the revision followed a similar revision made by the Ohio study group, which made no related change to the comment. He said paragraph ( C) concerning acceptance and reporting of tuition waivers was deleted, but there is no language in the Comment related to deleted paragraph, therefore any related change to the Comment appears unnecessary.

There were no changes to the comment.

Rule 3.15 (Reporting Requirements). Staff said there were several revisions made to the model rule at the September 12, 2008, meeting, but there is no comment to the rule.

With respect to Sen. Lee's earlier question regarding reporting of gifts from family members, Judge McCullough noted that paragraph (B)(2) links the reporting requirement to gifts received under paragraph (A)(9) through (10) of Rule 3.13. He said gifts from family members are addressed in paragraph (A)(8), and therefore are not subject to reporting based on the amount involved. As a consequence, he said, the reference to possible reporting in revisions to Comment [2] of Rule 3.13, which discusses gifts from family members, is probably unnecessary.

It was moved by Judge McCullough and seconded by Justice Crothers that the draft revisions to Comment [2] of Rule 3.13 be modified to remove the last full sentence (page 4, lines 15-18).

Linda Bata asked whether there was any need to retain any of Comment [2] as it discusses gift-giving by family members, which is not subject to reporting. Justice Crothers observed that the comment does provide a general rationale for those elements of the rule that address gift-giving by family and friends.

The motion carried.

Following further discussion, there were no changes to Rule 3.15.

Canon 4 Rules and Draft Comments

Committee members next turned to a review of restructured Canon 4 regarding political and campaign activity. Staff drew attention to Attachment D (August 20, 2009) - revisions to Canon 4 based on the Committee's June 9 meeting discussion and a first attempt to include commentary language from current ND Canon 5

Rule 4.1 (Applicability). Staff said the Applicability section in current Canon 5 was relocated to the beginning of the Canon 4 rules following discussion at the June 9 meeting. There is no comment following the rule.

Rule 4.2 (All Judges and Judicial Candidates). Staff said the draft crudely consolidates, under Rule 4.2, commentary language from Canon 5A(1) and Canon 5A(3)(d) since the black-letter provisions of those canons have been relocated to Rule 4.2. The questions, he said, are whether the comment paragraphs are properly arranged, are unnecessarily duplicative, or should be modified in some way.

With respect to general arrangement, Joel Fremstad suggested comment paragraphs without internal references to rule provisions should be first in order and paragraphs that have internal references should be placed in order of the rule provisions referred to in the paragraph.

Judge McCullough noted that the commentary paragraphs in current Canon 5 are often interspersed among and following particular relevant canon provisions. He said it may be helpful to follow a similar approach in arranging the comment paragraphs for Rule 4.2. Justice Crothers said he would not favor placing comment paragraphs in the body of the rule as it risks losing the rule's focus.

Joel Fremstad noted that Comment [6] is the same as the first sentence in Comment [1] and suggested Comment [6] could be deleted. Committee members agreed.

Following further discussion, Judge McCullough agreed to draft revised comments for Rule 4.2 which will be reviewed at the next meeting.

Rule 4.3 (Political and Campaign Activities of Judicial Candidates in Public Elections). Staff said Rule 4.3 is largely the equivalent of current Canon 5C(1), which does not have an associated comment. He noted that the draft includes, unrequested, Comment [1] which is the model rule comment related to paragraph (B)(4) regarding publicly endorsing or opposing other candidates for the same judicial office. He said the comment was included for discussion as it offers an explanation of paragraph (B)(4), which is the same as current Canon 5C(1)(b)(iii).

Justice Crothers wondered whether there is a clear understanding of the meaning of "same judicial office". For example, he said, district judgeships are numbered in North Dakota and the reference to "same judicial office" would seem to imply that a candidate for a district judgeship could oppose or endorse another candidate for the same numbered judgeship or, conversely, could not oppose or endorse a candidate for a different numbered judgeship. He noted that justices of the Supreme Court are "generic" in the sense that there are no numbered judgeships. As a consequence, he wondered whether, if he is seeking reelection as a justice and another justice is seeking reelection, he could oppose or endorse the other justice/candidate. The comment, he said, suggests he could oppose or endorse that candidate.

Judge Mattson drew attention to the explanation in the Reporter's Notes to the Model Code regarding Model Rule 4.2(B)(3), which is the equivalent of Rule 4.2(B)(4) in the draft (p. 107 of the
Notes). The explanation discussed the possibility of members of a multimember court, who are candidates for reelection, publicly endorsing or opposing each other, while their colleagues would be required to refrain from comments. The ABA Commission recognized that the rule provision could cause tension among members of multimember courts, but concluded that the provision would be retained from the 1990 Model Code because the pros and cons were evenly balanced.

Following further discussion, it was moved by Justice Crothers and seconded by Judge McCullough to delete Comment [1].

Linda Bata wondered what the effect would be of having no comment to explain the rule provision.

Justice Crothers suggested paragraph (B)(4) leaves the question open regarding candidates for the same judicial office. He said under North Dakota law a candidate is required to file for a particular ballot position and the rule provision would seem to then mean that the endorsing or opposing activity could be with respect only to a candidate for that same ballot position.

Paul Ebeltoft said if the comment is deleted it will likely require an amendment to paragraph (B)(4) to clarify its meaning.

Joe Larson suggested, as an alternative to deleting the entire comment, revising the comment to read: "For purposes of paragraph (B)(4), candidates are considered to be running for the same judicial office if they are campaigning for a single judgeship."

Justice Crothers said the discussion of paragraph (B)(4)'s meaning seems related to what paragraph (B)(1) permits [publicly speaking on the candidate's own behalf]. Judge McCullough disagreed and said there is a difference between speaking about yourself as a candidate and speaking about an opponent.

Linda Bata suggested paragraph (B)(4) could perhaps be combined with paragraph (B)(1). She said the basic question is whether a candidate for judicial office should be able to speak about other candidates for the office and, if so, how to modify the rule to make that clear.

Following further discussion, the motion carried.

It was moved by Paul Ebeltoft, seconded by Judge McCullough, and carried that paragraph (B)(4) be modified to read "publicly speak in regard to opponents for the same judicial office."

Paul Ebeltoft drew attention to paragraphs (B)(2) and (3), which permit a candidate to appear in newspaper, television, and other media advertisements and to distribute pamphlets and other promotional campaign literature supporting the candidacy. He suggested the provisions, in identifying particularly means of communication, seem too limiting in light of current technology and means of distributing information.

It was moved by Paul Ebeltoft and seconded by Linda Bata to modify paragraph (B)(2) to read: "appear in advertisements supporting his or her candidacy" and to modify paragraph (B)(3) to read: "distribute information supporting his or her candidacy".

Judge McCullough said he would oppose the motion as the current language seems clear enough and he is concerned about returning to a wholesale review of black-letter provisions previously reviewed.

Judge Clapp said the current language does not seem to contemplate the use of current Internet capabilities such as websites and blogs or the use of other electronic media.

The motion carried.

It was moved by Justice Crothers and seconded by Lisa McEvers that paragraphs (B)(1), (2), and (3), as amended, be deleted and replaced with Model Rule 4.2(B)(2). The new provision, as new (B)(1), will read: "speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature."

Linda Bata said the motion would delete the second portion of paragraph (B)(1), which permits the candidate to speak "on behalf of measures to improve the law, the legal system, or the administration of justice, whether or not at a gathering sponsored by a political organization". Justice Crothers agreed there may be a concern that requires attention but said the issue could be addressed in a separate motion.

The motion carried. (6 - yes; 5 - no).

It was moved by Linda Bata and seconded by Sen. Lee to add as a new paragraph (B)(2): "speak on behalf of measures to improve the law, the legal system, or the administration of justice."

Judge Clapp said the suggested provision would appear to not permit a candidate to speak on the candidates own behalf "whether or not at a gathering sponsored by a political organization", which is an activity the current provision permits.

Judge McCullough said the suggested language could be interpreted to permit the candidate to only speak in person about the subject matter, as opposed to the revision just approved which would allow the candidate to speak "through any medium".

With the consent of the second, the motion was amended to add new paragraph (B)(2) to read: "speak through any medium, including but not limited to advertisements, websites, or other campaign literature on behalf of measures to improve the law, the legal system, or the administration of justice, whether or not at a gathering sponsored by a political organization."

The motion carried.

It was moved by Linda Bata, seconded by Justice Crothers, and carried that new paragraph (B)(1) be further modified to read: "speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature, whether or not at a gathering sponsored by a political organization."

Rule 4.4 (Activities of Candidates for Appointive Office). Staff said the Committee retained ND Canon 5B as Rule 4.4 but limited it to candidates for appointive office. He said Comment [1] is retained from current ND Canon 5B but is revised to reflect changed rule references. He said the Comment is also revised to delete the reference to "other governmental office" as appointments to other governmental offices are addressed in Rule 4.6. He said Comment [2] is added from the Model Rule comment and explains the prohibition imposed by Rule 4.2(A)(7) against making pledges, promises, or commitments. He said the reference to "confirming" authority is changed to "nominating" authority to reflect the state judicial selection process for appointments.

Justice Crothers suggested the reference to "confirming" should be retained in Comment [2] as there is a confirmation process for lawyers and judges considered for federal judgeships. He asked whether "confirming" should also be added in the black-letter rule.

Judge McCullough suggested "confirming" should be added to paragraph (B)(1). Linda Bata suggested modifying the paragraph so that it first refers to communications with selection, and nominating entities and then refers to communications with an "appointing or confirming authority".

Justice Crothers noted that Model Rule 4.3(A) permits the candidate to "communicate with the appointing or confirming authority, including any selection, screening, or nominating commission or similar agency."

After further discussion, it was moved by Judge McCullough, seconded by Rep. Hawken, and carried to insert "or confirming" after "appointing" in paragraph (B)(1) and to modify the first sentence of Comment [2] to refer to "appointing, confirming, or nominating authority".

There were no other changes to the rule or comments.

Rule 4.5 (Campaign Committees). Staff said the Committee retained ND Canon 5C(2) as Rule 4.5. He said the comments are all North Dakota comments with only changes to internal rule references.

There were no changes to the comments.

Rule 4.6 (Activities of Judges Who Become Candidates for Non-Judicial Office). Staff said paragraph (A) of the rule is relocated ND Canon 5A(2) with minor revisions and paragraph (B) is from Model Rule 4.5(B). He said Comments [1] and [2] are comments from Model Rule 4.5 with the exception that Comment [2] is revised to reflect the allowance in paragraph (A) for participation in a state constitutional convention.

There were no changes to the comments.

Judicial Disqualification

Chair Mattson drew attention to Chief Justice VandeWalle's referral to the Committee of issues related to judicial disqualification in light of the U.S. Supreme Court's recent opinion in Caperton v. A.T. Massey Coal Co. Inc.

Staff drew attention to the background memorandum included in Attachment E (August 20, 2009) and the draft comment for Rule 2.11 should the Committee decide to consider a narrow approach to responding to issues raised in Caperton. He also distributed a revised draft report on disqualification prepared by the ABA's Standing Committee on Judicial Independence. A copy of the report is on file with staff.

Justice Crothers noted that recommendations on the disqualification issue will likely be submitted at the ABA's February 2010 meeting. He said there is considerable discussion and concern about the recommendations contained in the report.

Chair Mattson said the subject would be held over for additional review at the next meeting and further discussion following action at the ABA's February 2010 meeting.

There being no further business, the meeting was adjourned at 1:40 p.m.

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Jim Ganje, Staff