|Members Present |
Brian Neugebauer, Chair
Referee Bob Freed
Judge John Greenwood
Judge Richard Grosz
U.S. Magistrate Judge Karen Klein
Judge Debbie Kleven
Lisa Fair McEvers
Justice Dale Sandstrom
Sen. Steve Tomac
|Members Absent |
Judge Zane Anderson
Judge Scott Griffeth
Sen. Tim Mathern
Judge Cynthia Rother-Seeger
|Others Present |
Loralyn Hegland, Assistant Disciplinary Counsel, Judicial Conduct Commission
Chair Neugebauer called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (September 13, 2001) - a letter from Chief Justice Gerald VandeWalle and a report entitled "Call to Action", which was developed by the Summit on Improving Judicial Selection. He noted that Chief Justice VandeWalle had requested that the Committee review particularly Items 4-8 under "Campaign Conduct", Items 12 and 14 under "Voter Awareness", and the "Campaign Finance" segment generally.
With respect to Item 4, which recommends educational programs on state election laws , judicial canons, and sanctions for inappropriate conduct by judicial candidates, it was noted that the Continuing Judicial Education Commission is generally responsible for developing education programs for judges. It was noted that the Item also suggests that the programs be made available to campaign staff, consultants, and interest family members. Committee members agreed the suggested expanded scope for education programs would be difficult to accommodate within the present educational structure.
With respect to Item 5, which recommends establishment of "Hotlines" by the legislative branch, the judiciary, or the appropriate judicial discipline body, staff explained that the Judicial Conference's Judicial Ethics Advisory Committee is in place to respond to questions concerning ethical issues and application of the Code of Judicial Conduct. He said the Committee had recently responded to questions related to campaign conduct during the last judicial election cycle. He noted that the recommendation suggests reliance on "Hotline" advice should be a defense to any disciplinary action against campaign workers and contributors, as well as judicial candidates. He said current rules provide that reliance on an opinion by the Judicial Ethics Advisory Committee is evidence of good faith to be considered in any sanction decision resulting from a disciplinary proceeding. That provision, he said, does not extend to campaign workers or contributors.
With respect to Item 6, which recommends the establishment of non-governmental groups to encourage fair and ethical judicial campaigns, Committee members agreed such a recommendation would be difficult to implement. With respect to Item 7, which suggests reexamination of judicial canons regarding campaign activity to ensure fair elections while safeguarding the right to free speech and the convening of a symposium on free speech and judicial election issues, Committee members observed there have been few, if any, free speech issues in North Dakota judicial elections and convening a symposium on the issue may be premature.
Committee members then turned to a discussion of Item 8, which recommends procedures be studied for resolution of disciplinary complaints arising from campaign conduct before an election. Staff noted that the Judicial Ethics Advisory Complaint has issued advisory opinions on judicial campaign issues, but the recommendation seems directed at complaints lodged as part of the formal judicial discipline process.
In response to a question from Brian Neugebauer regarding whether complaints have been filed during or after a judicial election, Loralyn Hegland recalled that a few complaints have arisen during recent campaigns. She said that, as with other complaints, the office of disciplinary counsel receives and reviews the complaint, and makes a determination regarding whether investigation is required or whether summary dismissal of the complaint should be recommended to the Judicial Conduct Commission. If there is additional investigation, she said, a response by the candidate to the complaint is required and a report is then prepared for the Commission. She said the determination that investigation is warranted necessarily begins a longer process in resolving the complaint.
In response to a question from Judge Grosz, Loralyn Hegland said she is unaware of any authority of the Commission to shorten the time requirements for responding to a complaint or conducting a hearing. Judge Grosz suggested conferring such authority on the Commission may be worth considering as a method for resolving campaign-related complaints expeditiously.
In response to a question from Justice Sandstrom, Loralyn Hegland said she is not aware of any judicial campaign conduct complaints that have progressed to the point of formal charges being filed with the Judicial Conduct Commission. In response to a question from Referee Freed, she said the rules currently do not give the Commission the authority to impose injunctive relief in response to a complaint.
Brian Neugebauer said education programs are likely the best method of ensuring awareness of what constitutes proper campaign conduct. He suggested the Committee could recommend that the Continuing Judicial Education Commission review appropriate education programs to be provided for judges and recommend that the Judicial Ethics Advisory Committee review for adequacy information that is currently provided to candidates for judicial office.
Referee Freed suggested the possibility of making a videotape on acceptable campaign practice available to judicial candidates, with a requirement that each candidate verify that the videotape has been reviewed.
Sen. Tomac observed that the Secretary of State provides election information generally to candidates for office, but whether that information differs for judicial candidates is unclear. Additionally, he noted there does not appear to be many significant issues related to improper judicial campaign activity in North Dakota.
Judge Kleven noted that each candidate for judicial office receives information from the Secretary of State; receives a letter urging review of Canon 5 of the Code of Judicial Conduct, which governs election activities; and receives a letter from the Judicial Ethics Advisory Committee explaining that the Committee is available to respond to any questions regarding the requirements or limitations imposed under the Code of Judicial Conduct.
It was moved by Evan Lips, seconded by Judge Kleven, and carried unanimously that the Committee recommend that the Continuing Judicial Education Commission review availability of appropriate education programs related to judicial election activity and recommend that the Judicial Ethics Advisory Committee review the adequacy of information currently provided to candidates for judicial office.
In response to a question from Chair Neugebauer regarding a recommendation on Item 5, Committee members agreed the Judicial Ethics Advisory Committee, at this time, is an adequate alternative to the suggested "Hotline."
Chair Neugebauer asked whether there were any conclusions regarding an expedited procedure for responding to complaints related to campaign conduct, as mentioned in Item 8. Judge Grosz reiterated his suggestion that it may be worthwhile to consider providing authority to the Judicial Conduct Commission to expedite the current process when reviewing a complaint related to campaign conduct.
It was moved by Judge Grosz, seconded by Judge Kleven, and carried that the Committee recommend that the Supreme Court request the Judicial Conduct Commission to consider whether there would be benefit in providing an expedited process for responding to complaints concerning campaign conduct.
Discussion then turned to Items 12 and 14 under the "Voter Awareness" segment. It was noted that Item 12 regarding judicial performance evaluation programs is the next matter on the agenda for Committee discussion.
With respect to Item 14, which recommends devising ongoing programs to educate the public about the judicial process, staff noted that the State Bar Association has in place a fairly aggressive program directed at public education about the law and certain aspects of the judicial process. Additionally, he said the Public Trust and Confidence Implementation Committee has recommended to the Supreme Court that a public and media education effort be undertaken by the judiciary, either through a public information officer or some other mechanism. He said the Supreme Court is currently reviewing how such an effort could be effectively undertaken.
In response to a question from Sen. Tomac concerning response to recent Supreme Court hearings held around the state, Justice Sandstrom said the response has been overwhelmingly positive. He said there have been large turnouts, with students from surrounding schools often bussed to the school in which the Supreme Court is conducting the hearing. He said schools often have class sessions on the courts and judicial process before the Supreme Court arrives. He noted that the Supreme Court has now scheduled 3 to 4 years in advance for hearings at schools around the state.
Chair Neugebauer next drew attention to the "Campaign Finance" segment of the "Call to Action" report.
Judge members of the Committee noted that candidates for judicial office must file campaign disclosure statements in the same manner as other candidates for elective office. Financial disclosure statements are also filed. It was noted that campaign contributions exceeding $200 must be reported, although under the Code of Judicial Conduct a judicial candidate is not permitted to know the source of the contributions.
Staff drew attention to Attachment C, 1999 amendments to Canon 5 of the American Bar Association's Model Code of Judicial Conduct, which would prohibit a candidate for judicial office from receiving contributions that exceed a certain amount in the aggregate, and would require judicial campaign committees to file reports identifying those who made contributions exceeding a certain amount.
Committee members agreed that, in light of the present reporting requirements and no evidence of campaign abuses, there was no pressing need at this time to consider the recommended contribution limitations and reporting contained in Items 17, 18, and 19.
Chair Neugebauer next drew Committee members attention to Attachments D and E (September 13, 2001) - letter and attachments from Chief Justice VandeWalle and a Judicature article relating to judicial performance evaluation programs. He noted the letter included in Attachment D from Justice William A. Neumann, Chair of the Public Trust and Confidence Implementation Committee, which recommends consideration of establishing an evaluation program as a way of addressing potential issues related to civility, integrity, and professionalism. He said the letter included in Attachment D addressed to Justice Mary Muehlen Maring provides information about the Minnesota judicial development program.
Chair Neugebauer explained that during 1996-97 the Committee had discussed the establishment of a judicial performance evaluation program in North Dakota, reviewed evaluation programs in other states, and reviewed a draft rule based on some of these programs. He noted that an administrative rule earlier adopted by the Supreme Court providing for the establishment of a pilot evaluation program had never been fully implemented and the rule had sunsetted. Following its review of the issue, he said, the Committee declined to recommend a proposal for the establishment of a performance evaluation program. He said the Committee's conclusion was driven by two considerations: 1) that judges in North Dakota are elected every six years and in most of the states that have evaluation programs, judges are appointed and then stand for retention elections, and 2) there were concerns about the cost of implementing a program and the institutional resources that would be necessary if an evaluation program were to operate effectively. Consequently, he said, the Committee concluded the cost of establishing a program outweighed the perceived benefit and that aggressive education efforts would likely be an effective method of dealing with judicial performance issues. He observed that the information about the Minnesota program submitted to Justice Maring and set out in more detail in Attachment F (September 13, 2001) indicates the Minnesota program is simpler and more streamlined than the programs reviewed earlier by the Committee.
Staff noted that the Minnesota program is devoted to judicial development and improvement, while evaluation programs in states with retention elections are used in part to compile performance information that is provided to the public for use in deciding whether a particular judge should be retained in office.
Tom Kuchera observed that the Minnesota program was adopted by the Minnesota District Judges Association and wondered whether consideration of such a program would be appropriately directed to the North Dakota Judges Association.
Magistrate Judge Klein said the Committee should determine the general sentiment of North Dakota judges about an evaluation program before pursuing the issue at any great length.
Chair Neugebauer asked judge members of the Committee how judges might respond to the idea of a performance evaluation program. Judge Grosz said a performance evaluation proposal likely would not be well-received because it may be perceived as something similar to the poll of attorneys conducted before a judicial election. Many, he said, question the utility and accuracy of the poll results. In his personal opinion, he said, an evaluation program could have value if the results were confidential and not retained over time. However, he questioned the "mentoring" aspect of the Minnesota program because, with the reduced number of judges in the state, most judges likely will not have the time to participate.
In response to an observation from Brian Neugebauer, Judge Grosz agreed confidentiality is essential if the program is to have any benefit or prospect of being successful.
Judge Greenwood observed that if self-improvement is the primary goal of performance evaluation, then perhaps an evaluation proposal should originate with the judges rather than the Committee.
With respect to confidentiality, Brian Neugebauer said the sparse lawyer population in some areas of the state may make it fairly easy to determine who provided a particular survey comment about a judge. That could be a problem as well, he said, if staff are surveyed, as the Minnesota program provides for, because there may be only a few staff associated with a particular judge.
In response to a question from Sen. Tomac regarding how judges receive feedback for self-improvement purposes, Judge Kleven said one method used in her judicial district is to distribute questionnaires to jurors. She said response has been good, but it does reflect an assessment of only one aspect of a judge's work.
In response to a question from Judge Grosz regarding who would be responsible for assembling evaluation survey results, staff noted that under the Minnesota program, district court administrative staff are tasked with selecting the persons to be surveyed, receiving the surveys upon return, and compiling the results.
Magistrate Judge Klein said if a performance evaluation program is to be a state-wide process, then the program should not be administered locally. She cautioned that local pressure to disclose information obtained and assembled locally may be too great. It would be better, she said, for the information to be collected at a central location and then delivered to the affected judge by someone from outside the judicial district..
Judge Grosz observed that both judges and lawyers may be more comfortable if an evaluation program were administered at the district level, rather than from Bismark. He said the presiding district judges would likely be in the best position to facilitate an evaluation program, with the assistance of local administrative staff if necessary.
In response to a question from Brian Neugebauer regarding the federal system, Magistrate Judge Klein said there is no evaluation process for federal magistrate judges. She said when a federal magistrate judge is eligible for reappointment, there is a period of time for public comment on reappointment. Those comments, she said, are then reviewed by a reappointment committee. There is no evaluation mechanism for life-appointed federal district judges.
Justice Sandstrom said he would be interested in knowing the response of Judicial Conference members or of the Judges Association particularly about the perceived viability or benefit of a program aimed at "judicial improvement", rather than a program that focuses on "performance evaluation".
Referee Freed noted that there are about 4 child support attorneys and 3 attorneys handling juvenile matters that regularly appear before him in court. Consequently, he said, it would not be overly difficult to discern which attorneys were providing comments on his performance.
Tom Kuchera said he is not convinced there is a significant issue relating to judicial performance. He said Justice Neumann's letter alludes to the absence of a major problem in the statement that problems with civility, integrity, and professionalism were not viewed as issues of pressing importance in North Dakota. Consequently, he said, some measures that might be undertaken could be counter-productive.
Magistrate Judge Klein said the issue is not so much one of there being a problem needing correction, as there is one of there being no effective way for judges to receive feed-back about how they perform and fulfill their professional responsibilities.
Judge Kleven said she, as a judge, would like to know if she is perceived as being unfair.
Chair Neugebauer said it appears that judges are not generally opposed to performance evaluation or a judicial improvement program if the collected information is confidential and if the administrative commitments are not overly burdensome. He suggested that before the Committee progresses too far in considering a possible proposal that comments should be solicited from members of the Judicial Conference and the Judges Association. Additionally, he said the Committee should attempt to obtain information about how judges have responded to the Minnesota program.
Justice Sandstrom suggested it would be helpful if the Committee could meet with a Minnesota judge to discuss the Minnesota program in more detail. Committee members agreed.
Following discussion, Committee members agreed that before the Committee proceeds towards a draft proposal, district judges should be surveyed about their potential response to a confidential program aimed at judicial improvement and that a Minnesota judge should be invited to the Committee's next meeting to discuss the Minnesota program.
Chair Neugebauer said Committee members would be advised of the next meeting date after a satisfactory date can be arranged with a Minnesota judge.
There being no further business, the meeting was adjourned at 1:10 p.m.
Jim Ganje, Staff