Judiciary Standards Committee Minutes June 15, 2010

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee
Ramkota Hotel, Bismarck
June 15, 2010

Members Present
Judge Douglas Mattson, Chair
Linda Bata
Judge Sonja Clapp
Ron Carlisle
Justice Daniel Crothers
Daniel Dunn (SBAND Liaison)
Paul Ebeltoft
Joel Fremstad
Anna Frissell
Joe Larson II (joined the meeting at 10:20 a.m.)
Judge Steven McCullough
Judicial Referee Connie Portscheller
Municipal Judge William Severin

Members Absent

Rep. Kathy Hawken
John Mahoney
Sen. Judy Lee
Judge Mikal Simonson

Chair Mattson called the meeting to order at 9:30 a.m. and drew Committee members' attention to Attachment B (June 8, 2010) - minutes of the March 26, 2010 meeting.

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

Cont'd Review - 2007 ABA Model Code of Judicial Conduct and ND Code

Canon 4 (Political Activity) - Review of Revisions

At the request of Chair Mattson, staff reviewed Attachment C (June 8, 2010) - new Canon 4 (revised and renumbered ND Canon 5), with revisions resulting from the March 26 meeting.

There were no other suggested changes to revised Canon 4.

Compliance Section - Revised

Committee members next reviewed Attachment D (June 8, 2010) - ND Code Compliance Section with revisions resulting from the March 26 meeting. Staff noted the Committee's initial discussion of the Application Section of the ABA Model Code, revisions to which will be considered during the ABA's August meeting. In light of the pending possible revisions, he said, the Committee concluded to retain the current Compliance Section with changes reflecting the new rule structure and with other minor changes in the first two paragraphs of the Section. The ABA Model Code Application Section, with the revisions to be considered at the ABA's August meeting, is included as Attachment E (June 8, 2010).

With respect to the revisions to the ABA Application Section, Justice Crothers said the majority of the comments received after the Model Code was adopted concerned Application Section provisions identifying which rule provisions would or would not apply to part-time judges. In light of those concerns, he said, revisions were developed to address the issues raised. He said there appears to be no major opposition to the revisions and it is expected that they will be adopted as proposed.

Judge McCullough noted that the proposed revisions to the Application Section retain the Code's application to administrative law judges, while the current ND Compliance Section does not. He suggested referring the issue to the Joint Committee on Attorney Standards with a request that the Committee consider whether the Rules of Professional Conduct should be amended to provide that a lawyer who serves as an administrative law judge must comply with the Code of Judicial Conduct.

With respect to the timing for considering any revisions to the Application Section adopted in August, Justice Crothers noted that the revisions could be reviewed at the Committee's September 17 meeting. He said an option for the Committee is to submit the proposed revisions to the current Code, including the Compliance Section, to the Supreme Court and after the September 17 meeting submit, if necessary, further proposed revisions to the Compliance Section as part of the comment period. Committee members agreed.

It was moved by Judge McCullough, seconded by Paul Ebeltoft, and carried that the issue concerning possible amendments to the Rules of Professional Conduct to address lawyers serving as administrative law judges be referred to the Joint Committee on Attorney Standards for consideration.

Ethics Advisory Opinion - Yard Signs and Petitions - Review

At the request of Chair Mattson, staff reviewed Ethics Opinion 2010-1, which was recently issued by the Judicial Ethics Advisory Committee. He said the Committee, in response to a question from a candidate for judicial office, concluded that the current Code prohibits a candidate, while campaigning door-to-door, from personally requesting that a homeowner place a campaign sign in the homeowner's yard. He said the conclusion was based generally on the prohibition in Canon 5C(2) against a candidate directly and personally soliciting publicly stated support. He said the Advisory Committee, in considering the question, reviewed ethics opinions and caselaw from other jurisdictions and was concerned that the prohibition may be too broad in light of recent court decisions regarding political activity by candidates for judicial office. Consequently, he said, the Advisory Committee agreed to refer the issue to this Committee for review. He said another issue that the Advisory Committee encountered and which there is interest in this Committee discussing concerns whether it is permissible, in light of the prohibition against soliciting publicly stated support, for a candidate to personally solicit signatures on the candidate's nominating petition.

Sen. Lee observed that it is not sensible to regard the election process as so pure that a candidate for judicial office should be prohibited from asking someone to sign a petition. Justice Crothers agreed and noted that if judges are to be elected to office, it is unwise to remove the candidate completely from the election process.

With respect to whether a candidate can solicit signatures on a petition, Judge McCullough said language could be added to Comment [3] to Rule 4.6 to clarify that the rules do not prohibit such activity. However, he said the issue regarding whether a candidate may ask a homeowner to place a campaign sign in the homeowner's yard is more complicated. He noted that a campaign sign placed in a homeowner's yard near a busy intersection may be as effective as a paid advertisement. He said it would be very difficult to generally allow a candidate to personally request the posting of a sign in a yard, but then attempt to identify particular situations in which the practice would be impermissible.

Linda Bata observed that when a candidate personally requests that a homeowner place a campaign sign in a yard the homeowner may feel imposed upon and may be concerned about consequences if the request is denied and the candidate is then elected to judicial office.

Justice Crothers agreed with the suggestion to address the petition issue by adding comment language. He said he would not recommend addressing the yard sign issue. He said the Judicial Ethics Advisory Committee has researched and addressed the issue and provided guidance based on the current Code. He said ethics advisory opinions generally add depth to the application of the Code's provisions. It is generally unnecessary, he said, to try to respond to every issue by amending rule provisions.

Following further discussion, it was moved by Linda Bata, seconded by Judge Clapp, and carried that Comment [3] to Rule 4.6 be modified to include that the rule does not prohibit a candidate from personally seeking signatures on the candidate's nominating petition.

In response to a question from Chair Mattson regarding recommendation of the assembled Code revisions to the Supreme Court, it was moved by Linda Bata and seconded by Justice Crothers that the proposed Preamble, Scope, Terminology, Canons 1 through 3, revised ND Canon 5 (renumbered as Canon 4), and the revised Compliance Section be approved, and a report prepared and submitted to the Supreme Court for its consideration.

Judge McCullough said he prefers the present Code of Judicial Conduct as there is a settled body of caselaw interpreting the code's application, which will not be the case with the new Code. However, he said, there are useful additions in the proposed Code provisions, such as references to judicial involvement in specialty courts and language more directly related to judge interactions in social settings.

Justice Crothers observed that at least 14 jurisdictions have now adopted codes based on or modeled after the ABA Model Code. That, he said, will result in a developing body of caselaw and opinions interpreting the application of the various codes.

The motion carried.

Other Matters

Judge McCullough observed that several jurisdictions have judicial nominating committees similar to that in North Dakota and codes of conduct and rules governing the committees have been developed in some of those jurisdictions. He suggested that development of similar rules governing the operation of the ND Judicial Nominating Committee should be considered.

Staff will assemble background information regarding the operation of the Judicial Nominating Committee in accordance with N.D.C.C ch. 27-25.

Chair Mattson noted the Committee's next meeting is scheduled for September 17, at which time a short meeting may be held to consider any revisions to the Application Section of the ABA Model Code.

There being no further business, the meeting was adjourned at 10:30 a.m.

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Jim Ganje, Staff