Brian Neugebauer, Chair
Judge Zane Anderson
Referee Robert Freed
Sen. Judy Lee
Judge Doug Mattson
Lisa Fair McEvers
Justice Dale Sandstrom
Judge Richard Grosz
Chair Neugebauer called the meeting to order at 8:15 a.m.
It was moved by John Mahoney, seconded by Judge Anderson, and carried unanimously that the minutes of the September 24 meeting be approved.
Chair Neugebauer next drew Committee members' attention to Attachment C (October 31, 2003) - draft amendments to Canon 4G of the Code of Judicial Conduct regarding state judge service in the military reserve or guard. He explained the Committee's previous conclusion that, because of the constitutional prohibition against a state judge practicing law, a change to the black-letter canon to address the practice of law would likely not be a workable approach. He said the impact of the U.S. Constitution's supremacy clause on this issue, particularly the state constitutional limitation concerning the practice of law and the duties of a state judge as a guard or reserve member, will likely be resolved, if at all, in a different venue. He said the approach tentatively agreed to by the Committee at its last meeting is reflected in Attachment C - an amendment to the Commentary of Canon 4G which warns that service in a judge advocate position may constitute the practice of law and that a state judge is discouraged from accepting such a position or performing related duties. Chair Neugebauer then requested comments from Committee members regarding the draft amendments.
Staff noted that Judge Grosz was unable to attend the meeting but had reviewed the draft and asked that his comments be shared with the Committee. He said Judge Grosz supports the draft language at its present level of generality and cautioned against attempting to address in any detail what might constitute the practice of law under the circumstances.
Lisa McEvers agreed with the general focus of the amendment, but wondered whether it may be too harsh to "discourage" a state judge from accepting a judge advocate position. Brian Neugebauer noted that the draft language does not discourage a judge from joining the guard or reserve.
Sen. Lee wondered whether a judge might join the guard or the reserve for the very purpose of being able to provide professional legal services to guard and reserve members. In that regard, she asked whether the amendment might be only a short-term solution, with the issue addressed more completely perhaps through an amendment to the state constitution. It may be, she said, that a judge would want to be able to provide legal services, rather than be assigned to some other duty.
Brian Neugebauer said the amendment recognizes that a state judge is placed in an awkward position if the judge accepts a judge advocate position, and the judge should consider avoiding that circumstance by serving in some other fashion. Additionally, he said, it is difficult to anticipate the facts of a particular situation. Sen. Lee agreed every situation will be unique and, therefore, there is some utility in a general warning to judges. Judge Anderson agreed and said that in light of the constitutional provision he would favor the amending language.
John Mahoney said the language, if adopted, would put a judge on notice that there is something to consider if the judge is contemplating reserve or guard duty. Justice Sandstrom agreed.
In response to a question from Judge Mattson, staff said there were no contacts specifically with members of a judge advocate office, but guard and reserve personnel were contacted with respect to the nature of their duty and whether a judge would automatically be assigned to judge advocate duty. Sen Lee expressed disappointment that representatives of a judge advocate office were not contacted. She said their comments may not have been determining factors, but it would have ensured that all affected parties were given the opportunity to provide comments.
It was moved by Sen. Lee, seconded by Judge Mattson, and carried unanimously that the draft amendment to Canon 4G be approved and submitted to the Supreme Court for its consideration.
There being no further business, the meeting was adjourned at 8:30 a.
______________________________Jim Ganje, Staff