March 26, 2010
Judge Douglas Mattson, Chair
Chair Mattson called the meeting to order at 9:00 a.m. and drew Committee members' attention to Attachment B (March 16, 2010) - minutes of the August 28, 2009 meeting.
It was moved by Sen. Lee, seconded by Paul Ebeltoft, and carried that the minutes be approved.
Rule 4.2 - Draft Comments
Chair Mattson drew attention to Attachment C (March 16, 2010) - an explanatory e-mail and draft comments to Rule 4.2 prepared by Judge McCullough.
Judge McCullough explained that the draft comment attempts to combine the substance of the current Canon 5 commentary and the model rule commentary as reflected in the draft Rule 4.2 changes reviewed at the August 28, 2009, meeting. He said he did not find any significant conflicts between the current and model rule language as it relates to revised Rule 4.2. He said the Comment is structured so that it approximately follows the sequence of the rule when there are particular rule references in the comment, and then sets out in later paragraphs those comments addressing the general theory underlying the rule components.
Dan Dunn drew attention to the last line in Comment , which provides that the rules do not prohibit a candidate from endorsing or opposing candidates for a position on the "same court for which they are running." He said the meaning of the "same court" reference is unclear. For example, he said, if he were running for judgeship #4 and judgeship #5 is also on the ballot, could he endorse the candidate for judgeship #5, in essence creating "teams" of judicial candidates. He suggested the Committee may wish to review that reference after discussing Rule 4.3.
Following further discussion, there was consensus agreement to approve the draft Comment to Rule 4.2 pending consideration of any changes related to Rule 4.3.
Rule 4.3 Revisions - Review
Committee members next reviewed Attachment D (March 16, 2010) - Canon 4 rules with revisions resulting from the August 28 meeting. Staff explained that the particular revisions resulting from the August meeting were with respect to Rule 4.3 regarding political activities of candidates in public elections, and specifically Rule 4.3(B). He noted paragraph (B)(3) should, as revised, state "publicly speak in regard to opponents for the same judicial office." He said "speak" was inadvertently left out of the provision during the revision work.
Judge McCullough observed that if paragraph (B)(3) is retained as revised, then a reference to the rule provision should probably be added to Comment  to Rule 4.2. The reference, he said, would make clear that a candidate is permitted, as revised paragraph (B)(3) provides, to make statements about opponents for the same judicial office.
With respect to the "speak"-related revision to paragraph (B)(3), Judge McCullough said the effect of the change would seem to disallow judicial candidates from running as a slate of candidates but would permit a candidate to speak about an opponent.
Linda Bata recalled earlier discussion about the possible distinction between district judgeships, which are numbered on the ballot, and supreme court justices, whose positions on the ballot are not numbered. She wondered whether that makes a difference with respect to statements about candidates running for the "same judicial office."
With respect to Comment  to Rule 4.2, Ms. Bata asked whether the last sentence would be more accurate if it addressed endorsing or opposing candidates "for the same position on the same court for which they are running." Judge McCullough said a complete parallel reference to paragraph (B)(3) would refer to candidates "for the same judicial office." He said Comment  is an explanation of paragraphs (A)(2) and (A)(3) of Rule 4.2, which generally prohibit candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidate for public office. He said paragraph (B)(3) of Rule 4.3 is a more specific provision that allows speaking about opponents for the same judicial office.
Staff noted that Model Rule 4.2 provides that a candidate, during a specific period of time before an election, can "publicly endorse or oppose candidates for the same judicial office for which [the candidate] is running." Justice Crothers asked whether the model rule reference to "same judicial office" would mean, in the North Dakota context for example, the same numbered judgeship or if "same judicial office" more generally relates to "district court", "supreme court", or "chancery court." Staff said Comment  of MR 4.2 provides that "candidates are considered to be running for the same judicial office if they are competing for a single judgeship or if several judgeships on the same court are to be filled as a result of the election." Justice Crothers said the reference to several judgeships on the "same court" suggests that "same judicial office" would refer generically to the "district court" or the "supreme court."
Judge McCullough said that as a matter of policy he would not support judicial candidates running as a slate of candidates because of the risk of greater politicization of judicial elections. Judge Simonson wondered whether two of three candidates, in the "slate scenario," could run together even though each is running for a separate judgeship.
Justice Crothers observed that there may be 1st Amendment implications in placing restrictions on how a candidate campaigns with respect to the same or a different judicial office, but the importance of an independent judiciary may provide at least a rational basis for some restrictions.
Following further discussion, it was moved by Judge McCullough and seconded by Dan Dunn that the last sentence of Comment  to Rule 4.2 be revised to read "These rules do not prohibit candidates from campaigning on their own behalf or from endorsing or opposing candidates for the same judicial office. See Rule 4.3(B)(3)."
Judge Severin noted that "judicial office" is not defined and asked whether there ought to be a definition in light of the discussion about what may constitute a judicial office. Justice Crothers observed that either caselaw or state law requires that a candidate run for a specific judgeship; a candidate cannot run at large for a judicial position.
In response to a question from Chair Mattson, there was general agreement that "same judicial office" means a particular judgeship.
The motion carried.
With respect to revised paragraph (B)(3), Paul Ebeltoft noted that the provision begins with a reference to "publicly" speaking. He said "publicly" was deleted from paragraph (B)(1) and is not included in paragraph (B)(2). He questioned the need to retain the reference in paragraph (B)(3).
It was moved by Paul Ebeltoft and seconded by Linda Bata to delete "publicly" from paragraph (B)(3).
Justice Crothers noted that paragraph (A)(2) of Rule 4.2 prohibits "publicly" endorsing or opposing another candidate for public office. He asked whether consistency would suggest the reference be deleted from that provision as well.
Sen. Lee asked whether deleting "publicly" may inadvertently cause problems for a candidate if the candidate's private statement about an opponent is overheard by a third party. Judge McCullough said such a problem is unlikely to occur as private speech is not subject to the prohibition in paragraph (A)(2). It was noted that Comment  of the draft Rule 4.2 Comment provides that paragraph (A)(2) does not prohibit private expression of views about other candidates.
After further discussion, the motion carried.
Anna Frissel noted that in Rules 4.4 and 4.5 "candidate" is followed by an * indicating it is a defined term. But, she said, only "judicial candidate" is a defined term.
Staff said Rules 4.4 and 4.5 are the current North Dakota rules, which in general refer to "candidate" and that term is defined in the current Code. He said "judicial candidate" is the phrase used in the Model Code and is defined in the Model Code's Terminology section, which the Committee has adopted. He noted that "judicial candidate" under the Model Code and "candidate" under the current Code are linked to being a candidate for judicial office. He drew attention to the related issue "reserved for future discussion" at the February 28, 2009, meeting, during which Judge McCullough suggested the manner by which a person becomes a "candidate" under Rule 4.5 (judges as candidates for non-judicial office) should be addressed in a comment. The suggestion was that a judge would be considered a candidate for purposes of Rule 4.5 when the judge engages in acts that would render the judge a candidate seeking appointment to judicial office.
Judge McCullough said it would be useful to clarify, for purposes of Rule 4.4, the manner by which a person becomes a "candidate" for appointment to judicial office.
It was moved by Judge McCullough and seconded by Joel Fremstad to remove the * from Rule 4.4(A) and (B) and to include in Comment  the following: "For purposes of this rule, 'candidate for appointment to judicial office' has the same meaning as 'judicial candidate.' See Terminology."
Justice Crothers suggested that, rather than address the issue in the comment, it may be more consistent to simply change "candidate" in Rule 4.4 to "judicial candidate."
Following further discussion, and with the consent of the second, the motion was withdrawn.
It was moved by Justice Crothers, seconded by Judge Severin, and carried that references to "candidate" in Rule 4.4 be changed to "judicial candidate."
With respect to the reference to "candidate" in Rule 4.5, Justice Crothers said comment language explaining the meaning of the term would be useful. He suggested adding language to Comment  to clarify that "candidate" has the same meaning as "judicial candidate." Judge McCullough suggested alternatively that language be added which essentially follows the last sentence of the "judicial candidate" definition, without the specific reference to "judicial."
It was moved by Justice Crothers, seconded by Joel Fremstad, and carried that Rule 4.5 be modified to delete the * and to add the following language to the Comment: "For purposes of this rule, a person becomes a candidate for non-judicial office as soon the person circulates a petition of candidacy, makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes, or where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office."
It was moved by Anna Frissell, seconded by Judge McCullough, and carried that the asterisked reference to "candidate" in Rule 4.6 be replaced with "judicial candidate."
Model Code Application Section - Current Compliance Section
Chair Mattson drew attention to Attachment E (March 16, 2010) - an annotated version of the Model Code's Application Section and the Compliance Section of the current North Dakota Code.
Staff said the annotated Application Section includes a listing of types of judicial officers in North Dakota, which may be useful in reviewing Parts II through V regarding the various kinds of judicial officers addressed in the Application Section. He said the current Compliance Section addresses, part-time judges, judges pro tempore, and retired judges, while the Model Code Application Section addresses retired judges "subject to recall", "continuing" part-time judges, "periodic" part-time judges, and pro tempore part-time judges.
With respect to the general approach, staff said the Application Section is similar to the Compliance Section in that the Code generally applies to part-time or retired judges, but then both sections identify particular rules that do not apply under certain circumstances. He said the Model Application Section is substantively different in that identifies many rules that the various kinds of part-time judges are not required to follow at any time.
With respect to Part I(B) [Applicability] of the Model Application Section, Judge McCullough wondered whether the Code would actually apply to "members of the administrative law judiciary" as they are, in North Dakota, members of the executive branch. Staff noted Footnote 1 of the Application Section, which is related to the administrative law judiciary references and which recommends that each jurisdiction consider whether it applies.
Judge McCullough noted the reference in Part IB to "judicial functions" and suggested the reference be changed to "duties of judicial office" in light of the Committee's early decision regarding the duties reference.
It was moved by Judge McCullough, seconded by Linda Bata, and carried that Part I(B) be modified to replace "judicial functions" with "duties of judicial office".
It was moved by Judge McCullough, seconded by Judge Simonson, and carried that part I(B) be further modified to delete the reference to administrative law judiciary and to replace the list of judicial officers with the following: justices of the supreme court, district court judges, municipal judges, temporary judges, judicial referees, surrogate judges, special masters, and magistrates.
Justice Crothers informed the Committee that an ABA standing committee is currently considering revisions to the Model Code Application Section, particularly with respect to part-time judges. He said there was a fair amount of criticism leveled at the structure of the section and there may be substantial changes to it. He said the revisions probably will not be reviewed until late summer at the August meeting of the ABA House of Delegates. He said he would report any progress on the revisions at the Committee's next meeting.
Committee members discussed whether it would be worthwhile to move forward with a review of the Model Application Section if substantial changes to the section are likely to occur.
Staff said if the Committee's objective is to submit recommended Code revisions to the Supreme Court so they can be set for hearing and comment, reviewed, and adopted then the Committee should likely plan on a submission by late summer. Justice Crothers said the changes to the Model Application Section that will be submitted to the August ABA meeting likely will not finalized for some time after that.
In response to a question from Ron Carlisle, staff said the Committee could submit the Application Section, with any agreed-to changes, to the Supreme Court along with the other Code revisions, with the understanding that the Committee would have to reconsider the Section once the ABA work is complete.
By way of comparison, Justice Crothers noted early revisions to Part III [Continuing Part-time Judges] of the ABA Application Section, which would strike references to a number of rules that part-time judges would not be required to follow. The net effect, he said, would be to reinstate rule limitations somewhat similar to those in the current Compliance Section.
Following further discussion, it was moved by Linda Bata, seconded by Sen. Lee , and carried that the current Compliance Section, with applicable changes to rule references to reflect earlier Committee rule revisions, be retained.
Judge Clapp noted that the Compliance Section includes special masters as subject to the Code and wondered how particularly the Code would apply to an attorney who is appointed to serve as a special master. Judge McCullough suggested a special master may be considered a "judge pro tempore", which is addressed in Part B.
Paul Ebeltoft drew attention to the reference to "judicial functions" in the 2nd paragraph of the Compliance Section and wondered whether those functions are administrative, adjudicative, or something else. Linda Bata said her assumption is that references to "judicial functions" or similar references would be changed to "duties of judicial office" in light of the Committee's earlier decision.
Chair Mattson said the assembled Code revisions would be reviewed at the Committee's June meeting.
Staff noted that Attachment F (March 16, 2010), which is material related to the U.S. Supreme Court's Caperton decision, was included as a continuing reference point. He said ABA's Judicial Disqualification Project is still at work on a revised report on the issue.
Chair Mattson said the issue will be retained for Committee discussion pending a report and recommendations by the ABA group.
There being no further business, the meeting was adjourned at 11:55 a.m.
Jim Ganje, Staff