Judiciary Standards Committee
Supreme Court Conference Room/Conference Call
October 8, 2004
Brian Neugebauer, Chair
Judge Zane Anderson
Referee Robert Freed
Judge Richard Grosz
Lisa Fair McEvers
Justice Dale Sandstrom
Referee Scott Griffeth
Sen. Judy Lee
Judge Doug Mattson
Chair Neugebauer called the meeting to order at 9:30 a.m. and drew attention to Attachment B (September 28, 2004) - minutes of the July 23, 2004, meeting.
It was moved by Judge Anderson, seconded by Wayne Sanstead, and carried unanimously that the minutes be approved.
Canon 3B and C, Code of Judicial Conduct - Draft Amendments
At the request of Chair Neugebauer, staff reviewed Attachment C (September 28, 2004) - draft amendments to Canon 3B and C, which were submitted by the Gender Fairness Implementation Committee. He said the draft amendments and the transmittal letter from Justice Mary Muehlen Maring, Chair of the Implementation Committee, are the same as those initially reviewed by the Committee at its July 23 meeting. He said the draft amendments to Canon 3B and C would address the issue of sexual harassment within the context of the Canon's general requirements that a judge perform various responsibilities without bias or prejudice. He said the transmittal letter from Justice Maring outlines the issues and notes that including a prohibition against sexual harassment in the black-letter canon has been discussed by the ABA Joint Commission to Evaluate the ABA Model Code of Judicial Conduct at the request of the American Judicature Society. He said the ABA Joint Commission has not yet incorporated the suggested amendments in its revisions to the Model Code of Judicial Conduct. In summary, he said the draft amendments to Canon 3B(5) would include a requirement that a judge refrain from any speech, gesture, or conduct that could reasonably be perceived as sexual harassment and would require the judge to expect the same standard of conduct from those subject to the judge's direction and control. Similar and related language, he said, would be added by draft amendments to Canon 3C which create a new paragraph (2) and modify language in renumbered paragraph (3). He said language would be added to the Commentary which explains the importance of a judge's responsibility to ensure proper conduct by court personnel subject to the judge's supervision. He noted that Canon 3B(4) would be modified to include "court staff" in the list of those to whom a judge is required to be patient, dignified, and courteous.
Judge Grosz asked whether there is any good reason to wait for final action by the ABA, particularly since similar language has been adopted in other jurisdictions. Brian Neugebauer suggested the Committee should address the issue rather than wait until the ABA concludes whatever action it might take.
In response to a question from Justice Sandstrom, staff said the ABA Joint Commission has included in its present drafts the addition of "court staff" in Canon 3B(4). Also included in the Joint Commission revisions, he said, are the amendments on page 4, lines 7-10, which would provide that a judge must require staff and other court officials to observe the "high" standard of conduct expressed in the Code. He said the Joint Commission has also added the related commentary language reflected in the draft amendments (page 4, lines 20-23).
It was moved by Justice Sandstrom and seconded by Wayne Sanstead that the draft amendments to Canon 3B and C of the Code of Judicial Conduct be approved and submitted to the Supreme Court for consideration.
Lisa McEvers noted the requirement in the amendments on page 4, lines 7-10, that a judge require court staff to observe the high standards of conduct expressed in the code. She wondered whether the general reference to standards of conduct expressed in the code would place other prohibitions on court staff, such as limitations on involvement in political activity or free speech-related matters. In essence, she asked whether the new language would limit such activities by court staff in the same manner that a judge's activities may be limited. Committee members agreed the revision appears to broaden potential limitations on activity by court staff. Brian Neugebauer suggested retaining the current language, which is more narrowly focused, with the added reference to "high" standards. Committee members agreed.
Referee Freed said the change would require a similar modification to the new language in the commentary (page 4, lines 20-23).
Lisa McEvers suggested the reference to high standards of conduct be deleted from the draft commentary language. As an alternative, Justice Sandstrom suggested the draft language could be revised to read: "It is therefore especially important that judges take responsibility for ensuring appropriate conduct of personnel subject to their supervision."
Lisa McEvers wondered whether, in light of the limited changes to the related black-letter provision (page 4, lines 7-10), it is necessary to retain the draft commentary language. Brian Neugebauer agreed and said the commentary language serves little purpose in light of the change.
After further discussion, there was unanimous consent to modify the motion to include the to changes to page 4, lines 7-10, as suggested by Brian Neugebauer and to delete the draft commentary language on page 4, lines 20-23.
The motion, as modified, carried unanimously.
Administrative Rule 48 - Judicial Improvement Program - Proposed Amendments
At the request of Chair Neugebauer, staff reviewed Attachment D (September 28, 2004) -
a referral by the Supreme Court of proposed amendments to Administrative Rule 48 submitted by
Ted Gladden, State Court Administrator. He said the amendments would extend participation in the
judicial improvement program to judicial referees by providing a definition of "judicial officer" that
would include referees. He said the amendment to Section 4 of the rule would require that a judicial
referee participate in the survey process during each four year period following the referee's
Referee Freed observed that the Committee, when it initially developed the judicial improvement program rule, did not include judicial referees because of the desire to begin the project incrementally and because of a concern with the potentially small pool of court staff and attorneys that would be surveyed. He said early implementation of the program appears to have gone well and he would support mandatory participation by judicial referees.
After further discussion, it was moved by Judge Anderson, seconded by Referee Freed, and carried unanimously that the proposed amendments to Administrative Rule 48 be approved and submitted to the Supreme Court for consideration.
Mechanism for Reviewing Judicial Campaign Practices
Chair Neugebauer next drew attention to Attachment E (September 28, 2004) - a letter of referral and attachments from Chief Justice VandeWalle concerning a mechanism for reviewing complaints about judicial campaign practices. He said the issue was submitted to the Chief Justice by the Judicial Ethics Advisory Committee with a request that it be considered by the appropriate advisory committee.
Staff said the letter from Judge Ronald Goodman, Chair of the Judicial Ethics Advisory Committee, outlines the issues and experiences of that committee with respect to requests for advice about campaign practices. He said the Advisory Committee responds to questions about a requestor's contemplated campaign practices, but has been concerned that there is no effective, expeditious method for resolving complaints about the campaign practices of other candidates. He said the Advisory Committee had reviewed rules adopted in Nevada and South Dakota that establish separate entities to review complaints about campaign activity and concluded it may be a worthy subject for review by this Committee. He noted the "cease and desist" approach taken under the South Dakota rule and explained that a similar approach in Georgia was recently ruled unconstitutional by the 11th Circuit Court of Appeals. He said the Nevada process permits the imposition of sanctions, although the sanctions are unspecified, and provides for a public pronouncement by the reviewing entity if a candidate is found to have engaged in unfair or unethical campaign conduct. Additionally, he noted issues concerning prior restraint under the 1st Amendment that have arisen in attempts to limit judicial campaign activity. He said those issues and others are reviewed in the research memorandum prepared by Elaine Ayers, an advisor to the Ethics Advisory Committee, which is included in Attachment E.
Judge Grosz cautioned that a "cease and desist" process would likely invite a legal challenge and, additionally, there are significant issues of timing and prompt review of complaints to ensure matters are addressed during a campaign. He said a related difficulty is that a review committee would be attempting to apply Canon 5 of the Code of Judicial Conduct and the constitutional status of the canon's limitations is unclear.
Brian Neugebauer said issues concerning the validity of Canon 5 and its possible revision will likely be addressed and the issue of whether an entity to review campaign complaints should be established could be reviewed as a separate issue.
Judge Grosz agreed and suggested that a "cease and desist" approach should not be followed and that publicizing the entity's conclusion that the conduct is unethical or unfair, i.e., "sunshine", would likely be the most useful remedy.
In response to a question from Justice Sandstrom, Paul Jacobson said there have been no formal proceedings before the Judicial Conduct Commission with respect to a complaint about campaign practices. However, he said there have been campaign-related complaints submitted to the Commission which were disposed of short of formal proceedings. Additionally, he said he is unaware of any complaint having been submitted to an inquiry committee concerning campaign conduct by a lawyer who is a candidate for judicial office.
Judge Anderson said he would support further review of the South Dakota process. Referee Freed agreed.
Brian Neugebauer said it would be worthwhile to have some mechanism for responding to requests from candidates for direction concerning whether a particular campaign activity would be permissible. He said that may reduce the potential for complaints later about a particular activity.
In response to a question from Chair Neugebauer regarding how to proceed, Committee members agreed the various issues should be assigned to a subcommittee for review and possible development of a proposal. It was agreed the subcommittee should consider how a campaign review entity should be structured, and the kinds of responsibilities and authority the entity would have.
Brian Neugebauer suggested that the entity should be independent of the current disciplinary and ethics advisory bodies. Judge Grosz agreed. Justice Sandstrom agreed and suggested membership should not be limited to judges.
Following discussion, Judge Grosz, Lisa McEvers, and Referee Freed agreed to serve on the subcommittee. Committee members agreed Sen. Lee should be contacted to see if she would be willing to participate.
Interim Suspension of Judges
Chair Neugebauer next drew attention to the additional agenda item distributed as Attachment B (September 30, 2004) - referral of the issue of interim suspension of judges discussed in the Judicial Conduct Reporter. The referral concerns whether the rules should be modified to provide for interim suspensions in North Dakota.
Staff drew attention to Attachments C and D (September 30, 2004) - statutes and rules concerning sanctions available to the Judicial Conduct Commission and the Supreme Court with respect to judicial discipline. He noted that several of the state rules discussed in the Judicial Conduct Reporter article provide for the interim suspension of a judge during the pendency of a disciplinary proceeding, at the time a complaint is filed, or during the investigation of a complaint. He said NDCC Section 27-23-03(1) provides that a judge is disqualified from service while an indictment charging the judge with a felony is pending or while a recommendation by the Commission that the judge be removed or retired is pending. He said Section 27-23-03(2) further provides that the Supreme Court may suspend a judge if the judge is found guilty or pleads guilty or no contest to a felony. He said there does not appear to be any provision in statute or current rule that would permit the interim suspension of a judge in circumstances described by some of the rules in the article.
Brian Neugebauer said he would be opposed to allowing an interim suspension before the Judicial Conduct Commission has concluded its consideration of a complaint, particularly in light of the frivolous complaints that are often filed. Judge Anderson agreed. Justice Sandstrom agreed also and said suspension should not, without regard to the merits of the complaint, automatically follow the filing of a complaint.
Referee Freed said the issue then is whether there should be a determination by a hearing panel or the Commission that the complained-of conduct is likely to have occurred and is so objectionable that some sanction should be imposed before final disposition of the complaint.
In response to a question from Judge Grosz, staff said the Supreme Court has authority under the Rules of the Judicial Conduct Commission to transfer a judge to incapacity inactive status following disposition of a proceeding to determine whether mental or physical incapacity exists. He said the process, with some exceptions, is the same as is followed with respect to a disciplinary complaint filed against a judge.
Judge Grosz wondered whether there is a sufficient problem with the current process that would justify providing interim suspension as a sanction. The difficulty, he said, would be in deciding what kinds of situations would merit the temporary suspension of a judge.
After further discussion, it was moved by Judge Anderson, seconded by Judge Grosz, and carried unanimously that consideration of the issue be deferred until the next meeting.
Chair Neugebauer directed that staff assemble any additional background information concerning sanctions available to the Supreme Court and the Judicial Conduct Commission.
Family Alliance Lawsuit
Paul Jacobson provided an update concerning the recent lawsuit filed by the North Dakota Family Alliance alleging that the pledges and promises provision of Canon 5 is unconstitutional. He said similar actions have been filed in Alaska, Indiana, and Kentucky. He said a hearing on a request for a preliminary injunction in the Kentucky case will be held within the next week or so. He said the Attorney General's office is handling the response to the Family Alliance suit.
The Committee's next meeting will be at the call of the Chair, pending work by the subcommittee.
There being no further business, the meeting was adjourned at 11:00 a.m.
Jim Ganje, Staff