Judge Douglas Mattson, Chair
Rep. Kathy Hawken
Chair Mattson called the meeting to order at 1:30 p.m. and outlined the Committee's work with respect to recent court decisions affecting Code of Judicial Conduct provisions governing election activity by candidates for judicial office. He noted that Canon 5 is the provision of principal concern in light of the federal district court's opinion in ND Family Alliance v. Bader, which found unconstitutional the canon's "pledges and promises" and "commit" clauses. He said the 8th Circuit's recent opinion, following remand from the U.S. Supreme Court, in Republican Party of Minnesota v. White raises additional concerns but a petition for certiorari has been filed to bring the decision before the U.S. Supreme Court. He said in light of election activity that will soon be underway the question for the Committee is how to address the impact of the Bader decision to provide guidance for candidates for judicial office.
At the request of Chair Mattson, staff briefly reviewed Canon 5A(3)(d)(i)and (ii) of the Code of Judicial Conduct which prohibit making pledges or promises of conduct other than the faithful and impartial performance of judicial duties and prohibit making statements that commit or appear to commit the candidate with respect to cases, controversies, or issues likely to come before the court. These two provisions, he said, were found unconstitutional in Bader based on the U.S. Supreme Court's earlier opinion in Republican Party of Minnesota v. White. He said the 8th Circuit's recent August 2005 opinion found unconstitutional Minnesota ethical provisions prohibiting political party endorsements, attending political gathers, identification as a member of a political organization, and personal solicitation of campaign contributions. He said North Dakota provisions similar to those found unconstitutional by the 8th Circuit include Canon 5A(1)(d) and (e), which prohibit a candidate from seeking or accepting an endorsement from a political party and prohibit attending political gatherings, and Canon 5C(2), which prohibits personal solicitation of campaign contributions. He said there are other provisions in Canon 5 not directly similar to the Minnesota provisions affected by the 8th Circuit opinion, but which may be of concern in light of the opinion.
Staff also reviewed amendments to the Model Code of Judicial Conduct adopted in August 2003 by the American Bar Association in an effort to align the Model Code's pledges and promises and commit provisions with the previous U.S. Supreme Court opinion. He said the primary focus of the ABA amendments is to place greater emphasis on the requirement of impartiality. He noted that the Working Group that developed the amendments concluded they would "balance the First Amendment interest in vigorous and informative campaign speech with the compelling state interest in performing the duties of the judicial office impartially."
Staff explained that the current ABA Joint Commission to Evaluate the Model Code of Judicial Conduct has made substantial revisions, currently in the comment stage, to the Model Code, but has not substantively modified the White-related amendments previously adopted in August 2003. He said additional comment language has been added, however, to further explain the purpose of the limitations concerning pledges and promises or commitments. He distributed copies of the Joint Commission amendments relating to Canon 5 and Canon 3E (disqualification).
Justice Sandstrom drew attention to the ABA amendments to Canon 3E(disqualification) which would require disqualification if the judge has made a public statement that commits or appears to commit the judge with respect to an issue or controversy in the proceeding. He cautioned that the language should be clear that a judge's order or ruling in a case would not be considered a "public statement" for purposes of the disqualification requirement.
Paul Ebeltoft asked whether the Committee's scope of work is limited to considering changes to the current canons or if it extends to making broader recommendations, perhaps including constitutional or statutory changes.
Judge McCullough said the interim Judicial Process Committee of the Legislative Council is currently reviewing issues concerning methods of judicial selection, which is a study motivated in part by the recent court decisions. He said the State Bar Association has also created a Task Force on Judicial Selection, of which he is a member, which will review the issues and provide information and recommendations to the legislative committee.
In response to a question from John Mahoney, Chair Mattson said the Committee would likely concentrate first on possible changes to Canon 5 and any related provisions in an effort to present a recommendation to the Supreme Court so amendments, if adopted, could be in effect for the upcoming election cycle.
In response to a question from Joel Fremstad, staff said the current ND Code of Judicial Conduct does not contain a definition of "impartiality".
Judge McCullough said there are at least two options with respect to addressing the pledges and promises and commit clauses affected by the Bader decision. One option, he said, is too simply delete the provisions from the Code; the other is to try to save them by modifying the language in a way that is considered consistent with Bader. He said it is not immediately clear that there is a substantial difference between the ABA amendments and the current language in Canon 5. He said the state will have to show a compelling interest is served by any restriction and to that end it may be helpful to develop a record concerning the interests served by the restriction.
Joel Fremstad suggested the Committee must also consider the recent 8th Circuit opinion and recommended, as a beginning point, considering the ABA amendments.
Paul Ebeltoft observed that the ABA amendments were adopted before the Bader decision and may not survive if adopted in North Dakota. He said his initial preference would be to simply delete the provisions found unconstitutional in Bader. Referee Freed agreed.
Judge Mattson emphasized the impact on a judiciary with a limited number of judges, such as North Dakota's, if recusals become more prevalent because of challenges alleging a judge cannot be impartial because of public statements made by the judge.
Judge McCullough observed that it appears the ABA Working Group reviewed the majority opinion in White regarding the three possible definitions of impartiality which were considered unsatisfactory and then developed a different definition. He said it is unclear whether the ABA definition is different enough to survive strict scrutiny under the White decision or Judge Hovland's decision in Bader.
Lisa McEvers emphasized that candidates for judicial office prefer some level of certainty with respect to what can and cannot be said or done with respect to election activity. Additionally, she wondered if the number of judges in the state would have any significance with respect to whether a limitation on campaign conduct or speech could survive a constitutional challenge.
Judge Clapp noted that the White decision agreed, as did the Bader decision, that judicial impartiality is a compelling state interest. The inquiry then, she said, is whether the kind of impartiality sought to be served by a limitation is properly defined and whether the limitation is narrowly tailored to serve the properly defined interest. She agreed that it is uncertain whether the ABA language provides the solution.
Justice Sandstrom noted the additional impact in North Dakota of the ability of a litigant to demand a change of judge in a particular case. He also emphasized that it is not satisfactory to retain canons on the books which have been found unconstitutional.
Joel Fremstad said the voting public wants to know information about a candidate for judicial office. But, he said, there is a need to draw some kind of line regarding what a candidate can say during an election campaign. He said one way to address the issue may be to enhance the definition of impartiality and strengthen the recusal provision. He said simply removing the provisions found unconstitutional is not a satisfactory solution.
Judge Anderson said the ABA approach is preferable to removing the unconstitutional provisions.
Lisa McEvers stressed that removing the pledges and promises and commit clauses from the canons, without doing anything more, would result in candidates for judicial office being free to make whatever statements they desire as part their campaigns.
Following further discussion, it was moved by Judge Anderson, seconded by Judge McCullough, and carried that two versions of canon amendments be prepared for review at the December meeting: one that incorporates the ABA approach and one that simply removes the provisions found unconstitutional in Bader.
Joel Fremstad suggested it would be useful in the meantime to somehow indicate on the Web or in rule publications that certain of the Canon 5 provisions have been found unconstitutional.
There being no further business, the meeting was adjourned at 2:50 p.m.
Jim Ganje, Staff