Judiciary Standards Committee Minutes June 10, 2008

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee

Alerus Center, Grand Forks June 10, 2008

Members Present
Judge Douglas Mattson, Chair (joined at 1:25 p.m.)
Judge Zane Anderson
Linda Bata
Judge Sonja Clapp
Justice Daniel Crothers
Dan Dunn (SBAND Liaison)
Paul Ebeltoft
Joel Fremstad
Rep. Kathy Hawken
Sen. Judy Lee
Lisa Fair McEvers
Joe Larson II
Judge Steven McCullough
Municipal Judge William Severin

Members Absent

Judicial Referee Connie Portscheller
John Mahoney
Wayne Sanstead

Justice Crothers, serving as Acting Chair pending Chair Mattson's delayed arrival, called the meeting to order at 1:00 p.m. and drew Committee members' attention to the minutes of the April 4, 2008 meeting - Attachment (June 5, 2008). It was noted that "was" on page 11, 1^st sentence, should be changed to "were".

It was moved by Judge Clapp, seconded by Joel Fremstad, and carried that the minutes, as corrected, be approved.

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

Cont'd Review of (Annotated) Model Code Canon 3: Rules 3.6 - 3.15

Committee members continued review of Annotated Mode Code Canon 3 rules.

Rule 3.6 - (Affiliation with Discriminatory Organizations). Staff noted that the model rule includes references to "gender", "ethnicity" and "sexual orientation", which have been previously discussed with regard to earlier rules. With respect to how other jurisdictions have modified the rule, he explained that Minnesota had replaced "invidious discrimination" with "unlawful discrimination" and Oklahoma had separated the last sentence of paragraph (B) into a new paragraph ( C).

In response to a question from Joel Fremstad regarding whether "membership" has been defined in any other code, Justice Crothers said he is unaware of any interpretation of what might constitute membership in a particular organization. Joel Fremstad wondered whether "affiliation" might be a better concept. He observed that a judge may be involved with an organization, such as receiving a newsletter, in a manner that falls short of official membership but which may nevertheless be cause for concern.

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 is not a violation of the rule. He said the provision may be more appropriately placed in the black-letter rule, as it does not seem to be in the nature of an explanatory comment.

With respect to the Minnesota change to "unlawful discrimination", Lisa McEvers noted that several of the bases of discrimination addressed under the rule would not be unlawful under current state or federal law.

Following further discussion, there were no changes to Rule 3.6.

Chair Mattson joined the meeting at 1:25 p.m.

Rule 3.7 - (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities). Staff drew attention to the May 19, 2008, mailing, which included Rule 3.7 as one of the model rules that has been modified by several state groups reviewing the ABA Model Code. He noted that North Dakota did not adopt the 1990 Model Code version of Rule 3.7, consequently current ND Canon 4C(3) and (4), which generally address similar issues, is considerably different from the new model rule.

Justice Crothers drew attention to the opening language of paragraph (A) and the reference to "not conducted for profit", which relates to the kinds of organizations that sponsor activities with respect to which a judge's participation is permissible. He wondered whether "not conducted for profit" modifies only the immediately preceding reference to "civic organization", or if applies as well to the other references to educational, religious, charitable, and fraternal organizations. Judge McCullough said, given that "organizations" is the subject, modified by the preceding references to kinds of organizations, and that "not conducted for profit"modifies "organizations", he would consider "not conducted for profit" as applying to all of the types of organizations listed. Justice Crothers said if that interpretation is correct then the rule would prohibit a judge from teaching at a for-profit school such as Rasmussen College.

Sen. Lee observed that organizations such as Rasmussen College provide a valuable alternative for those seeking education in settings other than a traditional university or college setting. She said it would be unfortunate if students attending such organizations would be deprived of top level instructors because of a rule of conduct. Judge McCullough said the opening language of paragraph (A), which authorizes participation in activities sponsored by organizations concerned with the law, the legal system, or the administration of justice may provide a basis for a judge's teaching a course concerning the law offered by an organization like Rasmussen College.

Linda Bata asked how Rule 3.12, which governs compensation for extrajudicial activities, might figure in the discussion. Judge McCullough said it may be worthwhile to consider additional language to the Rule 3.12 Comment with respect to teaching issues.

Following further discussion, there were no changes to the opening language of paragraph (A).

Committee members then reviewed paragraphs (A)(1) through (6), which identify particular kinds of permissible activities with particular limitations.

With respect to paragraph A(1), staff noted that Indiana had added "volunteering services or goods at fund-raising events" as a permissible activity.

There were no changes to paragraph A(1).

With respect to paragraph A(2), staff said Minnesota replaced "soliciting contributions" with "soliciting funds and services".

There were no changes to paragraph A(2).

With respect to paragraph A(3), which permits soliciting membership for an organization or entity but only if the organization or entity is concerned with the law, the legal system, or the administration of justice, Justice Crothers said the provision might be termed the "National Judicial College/Inns of Court exception". He noted that some jurisdictions concluded that under the 1990 Model Code it was impermissible for judges to solicit other judges to become, for example, members of the Inns of Court. He said the new model provision addresses that issue. Judge McCullough said the exception may be too broad and wondered whether judges should, in fact, be able to solicit other judges, or lawyers, to become members of an organization. Staff noted that Arkansas substituted "as long as the solicitation cannot reasonably be perceived as coercive" for the model provision requiring the organization or entity to be concerned with the law, etc.

Judge McCullough said he preferred the limiting language in paragraph A(2), i.e., the judge could solicit membership but only with respect to members of the judge's family or judges over whom the judge does not have supervisory or appellate authority.

It was moved by Judge McCullough and seconded by Dan Dunn that paragraph A(3) be modified to include the limiting language as described.

Justice Crothers said the suggested language would likely be unduly restrictive in application.

Joel Fremstad said the Arkansas language may be a better alternative. Judge Anderson agreed.

Paul Ebeltoft said the basic issue appears to be how to preserve the judge's ability to solicit memberships while amending the general language without identifying clearly the objective. He said if the desire is that a judge be able to solicit memberships in the Inns of Court, for example, perhaps the rule should be amended to state that explicitly. Judge McCullough said he is, as a general matter, wary of permitting judges to solicit memberships, whether for the Inns of Court or other organizations.

Linda Bata suggested retaining the current language in paragraph A(3) and adding the Arkansas language concerning coercion. She said the concern about the risk of solicitation taking on coercive overtones is a legitimate one.

Following further discussion, the motion failed.

It was moved by Judge Anderson and seconded by Dan Dunn that paragraph A(3) be modified to reflect the Arkansas changes, i.e., delete the description concerning the organization or entity being concerned with the law, the legal system, or the administration of justice and insert language providing that the solicitation cannot reasonably be perceived as coercive.

Justice Crothers said the suggested change would essentially permit soliciting membership in any organization, subject to the coercion limitation.

Paul Ebeltoft said the language is likely a worthy addition to the rule but it probably will not eliminate the potential coercive effect.

Linda Bata said the suggested change would broaden the risk of coercive solicitation since, with the "reasonable perception" limitation, there is not much force behind the limit. She reiterated her suggestion to retain the current language and supplement it with the Arkansas language concerning coercion.

Judge Severin noted that paragraphs A(1) through (6) are a non-exclusive list of activities that are permitted, meaning that a particular activity not reflected in the list is permissible subject to other code provisions.

Following discussion, the motion failed (yes-5, no-7).

Committee members next reviewed paragraph A(4), which permits appearing or speaking at, receiving an award at, being featured on the program of, and permitting the judge's title to be used in connection with an event of an organization or entity unless the event is for fund-raising purposes. In that case, the judge may participate only if the event concerns the law, the legal system, or the administration of justice.

Judge McCullough asked whether the provision would be interpreted as not allowing him to appear and be identified as a judge at a Chamber of Commerce "Annual Event" where fund-raising occurs, but would allow it if the name was changed to "Legal Symposium and Annual Event".

Justice Crothers said the fund-raising exception has to do with more than a simple title. He said he would regard paragraph A(4) as permitting a judge to be affiliated with fund-raising with respect to the entire event as it relates to the law, legal system, or administration of justice. He said another issue concerns the new model provision's departure from the 1990 model code with respect to when a judge can allow an organization to give the judge an award. He said the new provision appears to allow a judge to receive an award from a organization which, arguably, may imply the judge is not impartial to the goals of the organization.

Staff noted that Ohio modified paragraph A(4) to delete the last clause linking the fund-raising purpose with the requirement that the organization be concerned with the law and added instead the phrase "provided the participation does not reflect adversely on the judge's independence, integrity, or impartiality."

It was moved by Justice Crothers and seconded by Judge McCullough that paragraph A(4) be modified to incorporate the Ohio changes.

Paul Ebeltoft suggested the more comprehensive approach may be to add the suggested language to the opening language of paragraph A and delete the non-exclusive list of permissible activities. The intent, he said, would then be to allow the general activities identified in paragraph A subject to the limitation that the activity not reflect adversely on the judge's independence, integrity, or impartiality. Joel Fremstad said the limitations imposed under Rule 3.1 likely serve the same purpose. Judge McCullough said he is not averse to the suggested change as long as examples of permissible activity are included in the Comment for purposes of guidance.

Justice Crothers said the motion would strike the language concerning fund-raising, which is the more important change.

Sen. Lee said she has confidence in judges being able to reject efforts to influence them.

Joel Fremstad wondered whether it was necessary to consider both the deletion of the model language and the substitution of the Ohio language in one motion. He asked that each change be considered separately.

Chair Mattson said the question would be divided between Part A, which would delete the last clause linking the fund-raising purpose with the requirement that the organization be concerned with the law, and Part B, which would add the described Ohio language.

Following discussion, the motion with respect to Part A carried (yes- 6, no - 5, 1 - abstain).

Following discussion, the motion with respect to Part B carried (yes - 8, no - 4).

Discussion then turned to paragraph A(5), which would permit making recommendations to a fund-granting organization in connection with its programs and activities so long as the organization is concerned with the law, the legal system, or the administration of justice.

Staff noted that Minnesota had changed paragraph A(5) to read: "making recommendations to an organization or entity concerning its fund-granting programs and activities."

Linda Bata said she uncertain why there would be a concern about making recommendations.

It was moved by Sen. Lee, seconded by Judge McCullough, and carried that paragraph A(5) be modified to incorporate the Minnesota changes.

Paul Ebeltoft observed that with the approved changes to paragraph A(1) through (5) the reference to an organization being one concerned the law, the legal system, or the administration of justice has been removed everywhere except in paragraph A(3) regarding soliciting membership. He wondered whether there was a particular reason to retain the modifying language there. Chair Mattson said the question would be reserved for later discussion.

Following review, there were no changes to paragraph A(6).

There were no changes to paragraph (B).

Staff drew attention to the Conference of Chief Justices resolution recommending a new paragraph ( C) be added to Rule 3.7 which would provide detail concerning how judges may provide leadership; endorse projects and programs related to the law, legal system, or administration of justice; and participate in programs concerning the law or which promote the administration of justice - Attachment B (June 4, 2008). He noted that only Oklahoma had included the recommended paragraph. Justice Crothers said the ABA considered the recommendation but did not include the provision in the model rule.

Joel Fremstad wondered whether there is any compelling reason not to include the recommended paragraph.

It was moved by Joel Fremstad and seconded by Rep. Hawken that new paragraph ( C), as recommended by the Conference of Chief Justices, be included with the exception that paragraph ( C)(1)(b) be modified to refer to "law-related public education programs".

Linda Bata said the primary objective is for judges to be engaged in the administration and hearing of cases. She said it may be problematic to include language that infers that judges should involved themselves in a host of other kinds of activities.

Dan Dunn said the recommended paragraph seems to stray too far from the purpose of the rules by adding language that suggests judges should be involved in projects for societal betterment.

Following further discussion, the motion failed (yes - 6, no - 8).

Rule 3.8 - (Appointments to Fiduciary Positions). Staff noted that the model rule is nearly identical to current ND Canon 4E(1)-(3), except for the reference in paragraph A to "in a fiduciary position", while ND Canon 4E(1) refers instead to "other fiduciary"; the inclusion in paragraph (B) of the modifier "likely" with respect to the possible involvement in proceedings that might come before the judge; and new paragraph (D) concerning the timeframe for compliance with the rule should a person serving in a fiduciary capacity become a judge.

In keeping with the Committee's earlier conclusion concerning use of the phrase, it was agreed that "duties of judicial office" should be substituted for "judicial duties" in paragraph (A).

Linda Bata noted that many jurisdictions refer to guardian of the person or guardian of the property as opposed to using conservator. She said the current reference in ND Canon 4E(1) to "other fiduciary" may be helpful since the model rule does not refer to serving as a conservator and the concept of conservator is still used in North Dakota.

Justice Crothers suggested adding "or other fiduciary" after the listing of kinds of fiduciary positions set out in paragraph (A).

Joel Fremstad wondered whether it is necessary to list the kinds of fiduciary positions when "fiduciary" is defined in the rules.

Following further discussion, it was moved by Linda Bata, seconded by Joel Fremstad, and carried that paragraph A be modified to insert "conservator" after "attorney in fact".

Rep. Hawken noted that paragraph ( C) refers to fiduciary "capacity", which seems at odds with references elsewhere in the rule to fiduciary "position"

It was moved by Joel Fremstad and seconded by Dan Dunn that paragraph ( C) be modified to refer to "fiduciary position".

Linda Bata said she had never encountered a reference to fiduciary "position" and wondered whether it had any particular meaning.

After discussion and with the consent of the second, the motion was amended to modify the rule to replace "fiduciary position" with "fiduciary capacity" and to replace "serve" and "serving" with "act" and "acting" where appropriate.

Justice Crothers said the latter revision is a substantive change as there is a difference between 'acting" as a fiduciary and simple being named a fiduciary. Committee members discussed several circumstances in which a person could be regarded as acting as a fiduciary, rather than simply serving as a fiduciary. Sen. Lee said the objective should be to permit a judge to informally help someone within the constraints of the rules. Judge McCullough said retaining the differentiation between "acting" and "serving", as the model rule does, would likely serve that purpose.

After discussion and with the consent of the second, the motion was withdrawn.

It was moved by Linda Bata, seconded by Sen. Lee, and carried that paragraphs (A), (B), and (D) be modified to replace "fiduciary position" with "fiduciary capacity".

With respect to the bracketed timeframe in paragraph (D), staff said most of the states that have issued reports have selected one year as the time within which a person who is serving as a fiduciary must comply with the rule after becoming a judge. Justice Crothers noted that the one year timeframe is the outside limit.

It was moved by Linda Bata, seconded by Judge Anderson, and carried that one year be selected as the maximum time period for compliance.

Rule 3.9 - (Service as Arbitrator or Mediator). Staff noted that the model rule is essentially similar to current ND Canon 4F.

In keeping with the Committee's previous conclusion concerning use of the phrase, it was agreed that "judge's official duties" should be replaced with "duties of judicial office".

Judge McCullough drew attention to the reference in the Comment to "assigned judicial duties" and noted that in the East Central judicial district judges do not have "assigned" duties.

There were no other changes to Rule 3.9.

Rule 3.10 - (Practice of Law). There was no change to Rule 3.10.

Rule 3.11 - (Financial, Business, or Remunerative Activities). Staff noted that Rule 3.11 is nearly identical to ND Canon 4D(1) - (3).

Committee members agreed "judicial duties" in paragraph (C)(1) should be changed to "the duties of judicial office".

There were no other changes to Rule 3.11.

Rule 3.12 - (Compensation for Extrajudicial Activities). There were no changes to Rule 3.12.

Next Meeting

Chair Mattson said the Committee would continue its review, beginning with Rule 3.13, at the next meeting. There being no further business, the meeting was adjourned at 3:35 p.m.

______________________________
Jim Ganje, Staff