Chair Neugebauer called the meeting to order at 8:30 a.m. and drew Committee members' attention to the issue referred to the Committee by Chief Justice VandeWalle - state judge service in the National Guard or military reserve (August 29, 2002, mailing with attachments). At the request of Chair Neugebauer, staff briefly summarized the issue and provided additional background information.
Staff said the issue arose in a question submitted to the Judicial Ethics Advisory Committee, but for a variety of reasons the Committee could not respond to the specific question. He said the Ethics Advisory Committee concluded that since the issue might arise again, it may be appropriate to consider whether the Code of Judicial Conduct should be amended to address issues concerning whether a state judge's service in the military guard or reserve would constitute the "practice of law", which is not permitted under Canon 4 of the Code. He said the ethics opinions provided in Judge Goodman's letter to the Chief Justice, most of which were issued in the 1970's and 1980's, offer divergent conclusions regarding a state judge's service in the military reserve or guard. He noted that the most recent opinion - Illinois Judicial Ethics Opinion 97-8 - concludes that the Supremacy Clause of the U.S. Constitution governs and once a state judge is called to active duty, state rules cannot restrict the military's right to assign the reservist/judge to whatever activity is needed.
Staff noted that Judge Grosz was unable to attend the meeting due to scheduled court hearings but had asked that his comments be presented to the Committee. He said Judge Grosz agrees with the Illinois opinion to the extent that if a judge is called to active duty as a reserve or guard member, then the Supremacy Clause governs and state ethical provisions cannot limit duties the judge may be assigned. However, he said Judge Grosz said more information was needed concerning whether a state judge must serve in a judge advocate office and, additionally, more information was needed concerning what a state judge reserve or guard member would do when participating in weekend or summer training. He said Judge Grosz also wondered whether there was any federal law that would forbid impairing the ability of someone to join the reserve or guard.
Staff explained that according to information from guard members, a state judge would not necessarily be assigned to a judge advocate's office, which would likely entail performing various kinds of legal services for reserve or guard members. Some judges and lawyers in the guard or reserve, he said, have held positions that are not at all related to their legal career. Additionally, he said, with respect to the possible impact of the Supremacy Clause, there appears to be no significant difference between whether a state judge is a member of the reserve or the national guard. He said he did not find any federal law that prohibits limiting a person's ability to join the guard or reserve. However, he said, federal law, particularly the Uniformed Services Employment and Reemployment Rights Act, and state law clearly indicate a public policy preference for encouraging service in the guard or reserve.
Brian Neugebauer said it may be significant whether a judge would automatically be assigned to a judge advocate position as a reserve or guard member. If, he said, the assignment to judge advocate duties is not automatic, the judge could avoid potential problems by not volunteering for those duties.
Sen. Lee said a judge would likely be a liability to the military operation if the judge were prohibited from performing services considered necessary by the military.
John Mahoney said a likely purpose of the prohibition in Canon 4G is to prevent judges from practicing law and receiving compensation while also being a judge. That purpose, he said, arguably does not conflict with a judge's military service in a reserve or guard judge advocate position.
Lisa McEvers said those who serve in judge advocate offices provide advice on a variety of legal matters, particularly matters such as estate planning and preparation of wills. She said these are matters that could later come before a judge in state court, which may be problematic if the judge is the one who initially provided the advice. Additionally, she suggested it may not be necessary to consider the issue as solely one of military service. She noted the directive in Canon 4A(3) that a judge's extra-judicial activities must not interfere with the proper performance of judicial duties. Arguably, she said, if a judge's service in the reserve or guard conflicts with that ethical requirement, then the judge should decline commissioned service that might lead to the conflict.
Brian Neugebauer said a basic question is whether it is a significant problem for a judge performing judge advocate duties to offer services with respect to such things as will preparation. He said if the matter were to later come before the judge in state court, the judge could recuse from the case. He suggested the Committee should consider providing guidance, or at least a warning, either by amending the rule or providing an explanation of the possible issues.
Justice Sandstrom noted the observation in the Judicial Ethics Advisory Committee's discussion that Article VI, Section 10, of the state constitution provides that no judge of the district court shall engage in the practice of law or hold any public office not judicial in nature. He wondered whether the debates of the 1972 constitutional convention reveal anything with respect to this provision and service in the military reserve or guard.
Scott Griffeth said in light of the constitutional prohibition against practicing law, it is likely not possible to craft an amendment to the Canon to avoid the prohibition. However, he agreed it is important to provide guidance for judges who are, or might become, members of the guard or reserve. For example, he said a judge, if called to active duty, could consider requesting that the judge not be assigned to judge advocate duties. In the alternative, he said, if a judge is ordered to serve in that capacity the judge could perhaps request that the judge not be required to advise members as an attorney in North Dakota. He said there may be no conflict for a North Dakota judge if the judge provides estate planning services, for example, for a guard member who is from another state.
Lisa McEvers observed that the constitutional prohibition does not appear to be limited to the practice of law in North Dakota.
Brain Neugebauer wondered whether it would be possible to define practice of law for purposes of the constitutional provision as not including judge advocate duties performed as a member of the guard or reserve.
Judge Kleven agreed the constitutional provision likely precludes the possibility of a code amendment on the scope of the practice of law.
Brian Neugebauer suggested the Committee may be limited to providing guidance in the Code that a judge who is a member of the reserve or guard and provides legal services may be in violation of the constitution's prohibition and that a judge should seek to avoid being placed in that situation. He said if a judge is ordered to duty as part of the judge advocate office and an issue arose about the practice of law, then the Ethics Advisory Committee would have to review the facts of the situation, perhaps determine if the judge's activities constitute the practice of law, and then offer an opinion concerning the judge's responsibilities under the Code.
Staff noted that some of the ethics opinions in the material do draw distinctions about what activities performed as a judge advocate officer would constitute the practice of law.
Lisa McEvers said she favored adding advisory language to the Canon's commentary, but not amending the Canon itself as the present language is sufficient. John Mahoney agreed.
Following further discussion, Committee members agreed draft amendments to the Canon 4G Commentary should be prepared which advises judges that, in light of the prohibitions under the Canon and state constitution, service in a judge advocate capacity may involve the practice of law and that a judge is discouraged from accepting such a position.
Chair Neugebauer said a conference call meeting of the Committee would be scheduled to review the draft.
There being no further business, the meeting was adjourned at 9:25 a.m.
Jim Ganje, Staff