Judiciary Standards Committee Minutes June 9, 2009

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee

Ramkota Hotel, Bismarck
June 9, 2009

Members Present

Judge Douglas Mattson, Chair
Ron Carlisle
Judge Sonja Clapp
Justice Daniel Crothers
Daniel Dunn (SBAND Liaison)
Paul Ebeltoft
Joe Larson II
Sen. Judy Lee
John Mahoney
Judicial Referee Connie Portscheller
Municipal Judge William Severin
Judge Mikal Simonson

Members Absent

Linda Bata
Joel Fremstad
Rep. Kathy Hawken
Judge Steven McCullough
Lisa McEvers

Others Present

Judge Zane Anderson

Chair Mattson called the meeting to order at 12:45 p.m. and welcomed Judge Simonson as a newly appointed member of the Committee. He then drew Committee members' attention to the minutes of the February 27, 2009 meeting, which were distributed by email.

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

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

ND Canon 5 - Restructured, with changes, as Canon 4

Staff summarized the Committee's earlier decision to retain current ND Canon 5 regarding political activity as the platform for considering any changes based on the Model Canon 4 rules. The related conclusion, he said, was to renumber Canon 5 as Canon 4 and reformat the canon to follow the model canon structure, while adding model rule language as appropriate. He then reviewed Attachment B (June 3, 2009) - a "clean" version of ND Canon 5 restructured as Canon 4 and reflecting changes based on the model rule changes approved at the February 27, 2009, meeting. He noted that Attachment C (June 3, 2009) represents a "marked-up" version of ND Canon 5 reflecting all the revisions necessary to reformat the Canon into the Model Canon structure and to incorporate those model rule provisions approved at the February meeting. [All following references to page and line numbers are with respect to Attachment B (June 3, 2009).

Staff drew attention to the introductory, qualifying clause in Rule 4.2(A) on page 2, line 19 ["Notwithstanding Rule 4.1,"]. He said the clause was inserted early in the Committee's reworking of Canon 5 and appears now to contradict the relationship between Rule 4.1 and Rule 4.2(A).

It was moved by Justice Crothers, seconded by John Mahoney, and carried that "Notwithstanding Rule 4.1," be deleted from Rule 4.1(A) [p.2, line 19].

Justice Crothers drew attention to some of the activities prohibited in revised Canon 4 [publicly endorsing candidates for other public offices, publicly identifying as a member of a political organization, personally soliciting campaign contributions]. He said similar prohibitions had been recently held unconstitutional by a federal district court in Wisconsin [Seifert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009)]. He said it appears that legal challenges to restrictions on campaign activity will not end soon.

Sen. Lee drew attention to the prohibition under Rule 4.1(A)(6) on page 2, lines 6-8, against purchasing tickets for or attending gatherings or other events sponsored by a political organization. She wondered whether the provision would be too onerous if it prohibited a candidate from, for example, purchasing a ticket and attending an event even if the candidate does not take a position on some issue or identify with a particular issue opposed or supported by the organization. Justice Crothers noted the exception to the prohibition which would allow the candidate, under Rule 4.2(B)(1), to publicly speak on behalf of his or her own candidacy or on behalf of measures to improve the legal system whether or not the gathering was sponsored by a political organization. It was noted that Rule 4.1(A)(6) would still prohibit the judge or candidate from purchasing tickets to attend the event.

Paul Ebeltoft said he would read Rule 4.1(A)(6) as essentially requiring an invitation as a candidate would not likely attend an event without being invited. Sen. Lee said her concern is that the rules not be applied so restrictively that a candidate becomes isolated from the community. Justice Crothers said the prohibition is likely intended to ensure that judges and judicial candidates do not become too involved with political groups. He said the more political an event becomes, the more the judge or candidate and sponsor should be concerned about whether and how the judge or candidate can participate without compromising ethical imperatives under the rules. He noted that recent judicial elections in several states have required the expenditure of enormous amounts of campaign funds by candidates and groups on behalf of candidates. He said the combination of political activity and the advent of significant campaign spending is presenting difficult challenges for devising appropriate ethical rules and guidelines.

Paul Ebeltoft asked whether there is any value in noting the allowed activity under Rule 4.2(B)(4) [publicly endorsing or opposing other candidates for the same judicial office] as an exception to the general prohibition under Rule 4.1(A)(2) against similar activity. That would, he said, follow the general approach of the "except as provided in Rule 4.2(B)(1)" reference included in Rule 4.1(A)(6), which the Committee had discussed. Justice Crothers observed that the exception language would essentially then work as an exception to the exception since the introductory language to Rule 4.1(A) already states, in part, "Except as authorized in Rules 4.2(B) ...".

After further discussion, it was moved by Paul Ebeltoft, seconded by Justice Crothers, and carried that Rule 4.1(A)(6) [page 2, lines 6-8] be modified to delete "except as provided in Rule 4.2(B)(1),".

There were no suggested changes to Rule 4.2, which governs activities by candidates during an election and which essentially combines current Canon 5A(3) and Canon 5C.

Committee members then reviewed Rule 4.3 regarding activities of candidates for appointive judicial office. Staff noted that Rule 4.3 follows the model rule construction in addressing candidates for appointive judicial office while Rule 4.5 addresses candidates for non-judicial office. Current Canon 5 applies to candidates for both kinds of offices. There were no suggested changes to Rule 4.3.

With respect to Rule 4.4, staff noted the redraft in Attachment B does not reflect changing the plural construction of "campaign committees" to singular as agreed upon at the February meeting. The oversight, he said, has been corrected. Additionally, he said Rule 4.4 is the same as Canon 5C(2) except for providing that a campaign committee may solicit "or accept" contributions or support [page 5, line 16] and deletion of the last line of Canon 5C(2) [prohibiting the use of contributions for private benefit] and relocating the language as a prohibition under Rule 4.1(A)(10).

Ron Carlisle asked whether there was a definition of what constitutes a "reasonable" campaign contribution for purposes of the rule. It was noted that contributions above a certain amount are required to be reported under state law. Staff said the comment to Model Rule 4.4 explains that the candidate "must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law."

There were no suggested changes to Rule 4.4.

With respect to Rule 4.5 (judge as candidate for non-judicial office), Justice Crothers drew attention to paragraph (B), which provides that "upon becoming a candidate for non-judicial office" a judge is not required to resign from judicial office. He wondered whether the provision is incomplete because it does not seem to address what occurs if the judge is actually appointed to the non-judicial office. Staff said Rule 4.5 is the model rule and there is no equivalent provision to paragraph (B) in current Canon 5B. He noted that the Reporter's Explanation indicates that paragraph (B) is "new, but seemed implicit" in some of the other 1990 model code provisions. He said the Explanation also notes that there is federal decisional law that discusses the differences between non-judicial elective and non-judicial appointive offices.

After further discussion, there were no suggested changes to Rule 4.5.

Committee members next reviewed the Applicability section of current Canon 5 [page 6, lines 3-7], which is not contained in the ABA Model Code. Staff noted that the section was slightly revised at the previous meeting and discussion indicated there was value in retaining the provision. The question, he said, is whether it should be added as a new Rule 4.6 or placed elsewhere.

Paul Ebeltoft said the section may be more helpful if it is placed at the beginning of new Canon 4.

It was moved by Paul Ebeltoft, seconded by Judge Simonson, and carried that the Applicability section be included as new Rule 4.1 and that the following rules be renumbered accordingly.

Comment Review

Committee members then turned to a review of comments to rules in Canons 1, 2, and 3 to determine whether revisions to model rule comments were necessary in light of revisions to particular rules, or whether revisions should be considered for other reasons.

Staff drew attention to Attachment D (June 3, 2009) - a memorandum summarizing various comment review issues related to rule revisions previously approved by the Committee and to issues reserved for further discussion during the comment review process. He said if there were no revisions to a particular rule, the memorandum notes that comment revisions are likely not necessary unless there is some independent reason for adding or deleting comment language. With respect to issues reserved for further review, he noted particularly proposed rule and comment amendments submitted by then Montana Supreme Court Chief Justice Karla Gray as part of the ABA model code review process. He said the proposed amendments relate to how judges may respond to the participation of self-represented litigants in court proceedings. The Committee, he said, reserved most of the proposed amendments for discussion during the comment review.

Canon 1 Rules

Staff noted that there were no revisions to Rules 1.1 and 1.2. He said the Committee revised Rule 1.3 to retain the North Dakota canon reference to "lending" the prestige of judicial office, rather than the model code reference to "abuse" of the prestige of office. He said there is no specific comment language affected by the revision.

There were no changes to the comments to Rules 1.1 through 1.3.

Canon 2 Rules

Rule 2.1. Staff said there were no revisions to the rule and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 2.2. Staff said there were no revisions to the rule and, therefore, revision-related changes to the comment appear unnecessary. He noted the proposed Gray amendment, which would elevate to the black-letter rule language that is generally similar to comment [4]. The proposed amendment, he said, would provide that nonprejudicial steps taken by a judge to provide self-represented litigants the opportunity to have their case heard fully would not raise a reasonable question regarding the judge's impartiality. He said the Gray amendments also then propose deletion of comment [4].

Sen. Lee said the language in comment [4] seems adequate to address the issue. Committee members agreed.

With respect to the use of "pro se" in comment [4], it was moved by Justice Crothers, seconded by Judge Clapp, and carried that the reference be changed to "self-represented".

There were no other changes to the comment.

Rule 2.3. Staff said the Committee revised the rule to refer to "duties of judicial office", rather than "judicial duties", which reflected the Committee's earlier decision to distinguish between activities that relate directly to adjudicative duties and activities that relate to other duties. He said "duties of judicial office" is used when all duties - adjudicative and others - are affected. He said there is no specific comment language affected by the revision. He noted the proposed Gray amendment would add a new paragraph (E) to the black-letter rule. The proposal, he said, would provide that a judge is not precluded from taking nonprejudicial steps to enable a self-represented litigant to be heard.

Justice Crothers expressed doubt that the language should be added to the rule or comment, which address bias, prejudice, and harassment.

There were no changes to the comment or rule.

Rule 2.4. Staff said the Committee revised the rule to refer to "economic" rather than "financial" interests with respect to interests that must not be allowed to influence a judge's conduct or judgment. He said "economic interests" was preferred since it is a defined phrase in the code. He said there is no comment language directly affected by the revision and, therefore, changes to the comment appear unnecessary.

Paul Ebeltoft drew attention to the reference in paragraph (B) to "judicial conduct or judgment" and recalled the Committee's earlier discussion concerning whether the reference should be changed in light of the agreed-upon use of "duties of judicial office" or "adjudicative duties". He noted that the comment, in discussing the deciding of cases, appears to contemplate matters related adjudicative duties, although the prohibition in the rule would seem equally appropriate with respect to administrative and other duties. He said it may be appropriate to replace "judicial conduct or judgment" with either "duties of judicial office", or "adjudicative duties"if the narrower focus is preferred, which would be more consistent with the concepts employed in earlier rule revisions.

It was moved by Joe Larson and seconded by Paul Ebeltoft to replace "judge's judicial conduct or judgment" with "judge's duties of judicial office" in paragraph (B).

Judge Clapp observed that there may be interests, economic for instance, that may have a bearing on the administrative duties of a judge.

Justice Crothers said it is unclear whether "duties of judicial office" would address actual conduct. John Mahoney noted that the rule's title refers to external influences on judicial "conduct". Joe Larson questioned whether there is a real distinction between duties and conduct. He said duties necessarily prescribe conduct in that if a judge has a certain duty, the judge must perform that duty in an appropriate fashion.

Paul Ebeltoft said he would not be opposed to the use of "adjudicative duties" in the rule. His uncertainty, he said, was with respect to whether the rule's present reference to "conduct or judgment" meant all duties, or just adjudicative duties.

After further discussion, the motion failed.

Rule 2.5. Staff said the Committee revised paragraph (A) to refer to "duties of judicial office" rather than to "judicial and administrative duties". He said the revision does not appear to require changes to the comment. He noted the proposed Gray amendment, which would modify paragraph (B) regarding the requirement that judges cooperate in the administration of court business to add the phrase "which may include improvements in access to justice". He said the proposed amendment also would add a new comment [5] regarding the impact of self-represented litigation and the advent of efforts to facilitate a self-represented litigant's ability to be heard.

With respect to the proposed addition to paragraph (B), Justice Crothers observed that part of the court's business is improving access to justice. He said the additional language is likely unnecessary.

There were no changes to the comment or rule.

Rule 2.6. Staff said there were no revisions to the rule and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 2.7. Staff said there were no revisions to the rule and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 2.8. Staff said there were no revisions to the rule and, therefore, revision-related changes to the comment appear unnecessary. He noted that the Committee reserved for further discussion whether to add to paragraph ( C), which is nearly the same as ND Canon 3B(11), or to the comment the language in the current canon that allows a judge to express appreciation to jurors for their service to the judicial system and the community.

Dan Dunn said it would seem to be a common courtesy to express appreciation to jurors and the rule should recognize that. Judge Simonson said he has from the beginning addressed jurors in the manner permitted by the current canon.

Justice Crothers noted that the Oklahoma task force revised the black-letter rule to provide that judges are "encouraged" to express appreciation to jurors.

It was moved by Ron Carlisle, seconded by Joe Larson, and carried that paragraph ( C) be modified to insert ", but may express appreciation to jurors for their service to the judicial system and the community" after "proceeding".

Rule 2.9. Staff said the Committee revised the rule to add a new paragraph (A)(4), which allows a judge and court personnel to have ex parte communications, with the consent of all parties, with those involved in specialized court teams. He said the added paragraph was based on an amendment recommended by the Conference of Chief Justices with the exception that the Committee used "specialized court team" ( a phrase used in the Oklahoma code revision) rather than "problem-solving court team". He said the CCJ recommendation did not include proposed comment language and there is no comment language affected by the revision.

Staff said the Committee revised paragraph ( C) to include "Except as otherwise provided by law" to recognize current state law regarding small claims actions which allows the court to conduct its own inquiry into the case. He said the Committee reserved for discussion whether to add to the comment the language contained in the commentary to current Canon 3B(7), which notes the small claims law reference.

It was moved by Justice Crothers, seconded by Judge Simonson, and carried to modify comment [6] to include the small claims law reference as reflected in the current canon.

Rule 2.10. Staff said the Committee revised paragraphs (D) and (E) to clarify application of the provisions in relation to paragraph (A). He said the substance of the paragraphs was unchanged and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 2.11. Staff said the Committee revised the rule to delete paragraph (A)(4) related to campaign contributions by a lawyer or law firm as the basis for a judge's disqualification. He said there is no comment language related to the deleted provision and, therefore, revision-related changes to the comment appear unnecessary.

Justice Crothers drew attention to comment [1], which explains that, under the rule, a judge "is disqualified" whenever the judge's impartiality might reasonably be questioned. The rule, he said, provides that a judge "shall disqualify himself or herself". He said the comment language suggests the disqualification requirement is self-executing, while the rule's "shall" construction suggests different activities are involved. He said the rule and comment purport to address the same concept but there may be an arguable difference. He suggested that the comment language should mirror the rule language.

It was moved by Sen. Lee, seconded by Paul Ebeltoft, and carried to modify comment [1] to replace "a judge is disqualified" with "a judge shall disqualify himself or herself".

There were no other changes to the comment.

Rule 2.12. Staff said the Committee revised paragraph (B) to refer more narrowly to "adjudicative duties" with regard to supervising the performance of other judges. He said there is no comment language directly related to the previous rule reference and, therefore, revision-related changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 2.13. Staff said the rule was revised to delete paragraph (B) regarding "pay to play" with respect to an administrative appointment of a lawyer by a judge. He said the deletion of the rule provision appears to require the deletion of comment [3], which is directly related to the provision.

It was moved by Paul Ebeltoft, seconded by Dan Dunn, and carried that comment [3] be deleted.

Rule 2.14. Staff said there were no revisions to the rule and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Rule 2.15. Staff said paragraphs ( C) and (D) were revised to refer to a judge receiving "credible" information indicating a substantial likelihood of a judge or lawyer having committed an ethical violation. He said the revision appears to require a parallel reference to "credible" information in the second line of comment [2].

It was moved by John Mahoney, seconded by Sen. Lee, and carried that "credible" be inserted before "information" in the second line of comment [2].<

It was moved by Dan Dunn, seconded by Judge Clapp, and carried that the same change be made in the seventh line of comment [2].

Rule 2,16. Staff said there were no revisions to the rule and, therefore, changes to the comment appear unnecessary.

There were no changes to the comment.

Next Meeting and Other Business

Chair Mattson said the Committee would continue the comment review with the Canon 3 and Canon 4 rule comments at the August 28 meeting.
Justice Crothers observed that if the Committee wants the revised code included in the new rule book published by West, then the proposed code would have to be submitted to the Supreme Court so that it can complete its consideration by late December.

Paul Ebeltoft asked whether the black-letter rules, with amendments, could be assembled without comments and provided to Committee members. Staff said he would provide the rules in a format without comments.

Committee members discussed whether the November 6 meeting should be rescheduled. Committee members will be contacted about an alternative meeting date.

There being no further business, the meeting was adjourned at 3:45 p.m.

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Jim Ganje, Staff