Judiciary Standards Committee Minutes February 27, 2009

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee

Doublewood Inn, Bismarck February 27, 2009

Members Present
Judge Douglas Mattson, Chair
Ron Carlisle
Justice Daniel Crothers
Joel Fremstad
Rep. Kathy Hawken
Joe Larson II
John Mahoney
Judge Steven McCullough
Judicial Referee Connie Portscheller
Municipal Judge William Severin

Members Absent
Linda Bata*
Judge Sonja Clapp
Daniel Dunn (SBAND Liaison)*
Paul Ebeltoft
Lisa McEvers
Sen. Judy Lee
Judge Mikal Simonson

*Available for the meeting, but due to telephone malfunctions unable to participate

Chair Mattson called the meeting to order at 9:00 a.m. and welcomed Ron Carlisle as a newly appointed member of the Committee. He then drew Committee members' attention to Attachment D (February 23, 2009) - minutes of the November 14, 2008 meeting. Typographical errors were noted on pages 1 and 11.

It was moved by Justice Crothers, seconded by Referee Portscheller, and carried that the minutes, as corrected, be approved.

Review - (Annotated) 2007 ABA Model Code of Judicial Conduct and ND Code

Canon 5 - Political Activity (In relation to Model Canon 4)

Staff reviewed the Committee's decision at the November 14 meeting to depart from the previous practice of using the model rules as the basis for review and to instead retain current ND Canon 5 regarding political activity as the platform for considering any changes based on the Model Canon 4 rules. The related conclusion, he said, was to renumber Canon 5 as Canon 4 and reformat the canon to follow the model canon structure, while adding model rule language as appropriate.

With respect to Attachment B (February 23, 2009) - draft amendments to Canon 5 (renumbered as Canon 4), staff noted the Committee concluded its November 14 discussion with the tentative decision that current Section A(3) would become Rule 4.2, which governs activities by judicial candidates in a public election. He noted that current Section A(1) would then become Rule 4.1, which establishes restrictions applying at all times to judges and judicial candidates; current Section A(2) would become Rule 4.5 governing activities by judges who become candidates for non-judicial office; and Section C(2) would become Rule 4.4 governing campaign committees. With respect to the continued review of Section A(3), with the amendments from the November 14 meeting, he said Section A(3)(a) is essentially an adaptation of Model Rule 4.2(A)(1) and new Section A(3)(b) is reflected in Model Rule 4.2(A)(4). The two provisions, he said, impose an affirmative obligation on a judicial candidate to, respectively, act at all times in a manner consistent with the impartiality, independence, and integrity of the judiciary and to take reasonable measures to ensure that others do not undertake on behalf of the candidate activities the candidate is prohibited from doing under Rule 4.1.

Staff said the remaining issues with regard to Section A(3) are whether to retain current Sections A(3)(b) and ( c). He noted that these two current provisions appear to be variations of the new Section A(3)(b) placed in the rule at the last meeting.

It was moved by Justice Crothers, seconded by Rep. Hawken, and carried to delete current Sections A(3)(b) and ( c) [Attachment B (February 23, 2009), p.4, lines 19-22, and p. 5, lines 1-3].

Staff noted that current Section A(d) (i)disallows a candidate from making promises, pledges, or commitments inconsistent with the impartial performance of adjudicative duties and was relocated to new Section A(1)(g), which left only Section A(d)(ii), a prohibition against the knowing misrepresentation of the identity, qualifications, present position, or other fact concerning the candidate or an opponent. He said there is no direct model rule counterpart to (d)(ii), although a somewhat related model provision, which the Committee rejected, is MR 4.1(A)(11) [prohibiting knowingly or with reckless disregard for the truth making a false or misleading statement]. He noted that the ABA Model Code's Reporter's Explanation indicates MR 4.1(A)(11) was intended to supplant what is current (d)(ii) because the model rule provision was considered more anchored in the laws of libel and slander. The question, he said, is whether the Committee, in previously rejecting the model rule provision, should consider retaining current (d)(ii) and, if it is retained, whether it should be located in Section A, which will become Rule 4.1.

Judge McCullough said it would be worthwhile to retain current (d)(ii) in its present location, which would include the provision in new Rule 4.2 after reformatting the canon. He said (d) could be modified to include the language of (ii) as (i) had previously been deleted.
It was moved by Judge McCullough, seconded by Joel Fremstad, and carried that the language of (ii) be combined with the opening language of (d) to read: "shall not knowingly* misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent" [Attachment B (February 23, 2009), p. 5, lines 4-10].

Committee members next discussed current Section A(3)(e), which allows a candidate to respond, with certain limitations, to personal attacks or attacks on the candidate's record. Staff noted that there is no direct model rule counterpart to Section A(3)(e), but the subject matter is generally discussed in Comments [8] and [9] to Rule 4.1 which are, in turn, generally related to the model rule provision [4.1(A)(11)] previously rejected by the Committee.

Judge McCullough said the provision should be retained and placed in new Rule 4.1, which applies to all judges, whether candidates or not, and to judicial candidates.

Joel Fremstad said judges are regularly the subjects of criticism and wondered whether an extra level of protection or ability to respond is necessary for sitting non-candidate judges. He agreed, however, that a judge who is a candidate in an election should be able to respond to allegations about or criticisms of the judge's conduct.

Ron Carlisle wondered why a judge would not want to respond to allegations about the judge's personal or professional honor. Judge McCullough said sometimes the better choice is to not respond and not extend the argument or media attention. Nevertheless, he said, a judge should not have to face the possibility of an ethical complaint because the judge considers it necessary to respond to allegations about the judge's professional conduct.

Justice Crothers observed that there may be constitutional issues with respect to restricting a judge to responding only during a campaign.

Judge McCullough reiterated that there is value in explicitly allowing a judge to respond, outside the election context, to personal attacks or attacks on the judge's record. However, he said, since the clause is permissive, i.e. "may" respond, perhaps another alternative is to simply delete the provision.

Following further discussion, it was moved by Justice Crothers and seconded by Judge McCullough that Section A(3)(e) [Attachment B (February 23, 2009), p. 5, lines 11-12] be deleted.

Justice Crothers said another concern is that it is generally inappropriate to include "may"provisions in black-letter rules, which should generally discuss prohibitions on conduct. That, he said, may be why the issue is generally addressed in the comment to the model rule. Likewise, he suggested that if (3)(e) is deleted, the issue should be reserved for consideration when the comment to the rule is discussed.

In response to a question from Ron Carlisle concerning whether deletion of the provision would still enable a judge to respond to attacks, Justice Crothers said comment language could outline the limits for responding to personal attacks and attacks on the judge's record. He suggested language should be placed in the comments for rules concerning conduct by non-candidate judges as well as rules governing candidate conduct.

The motion carried.

As a related point of discussion, Committee members then turned to a review of current Canon 5C(1) [Attachment B (February 23, 2009) p. 8, lines 10-20, p.9, lines 1-3], which governs conduct by a judge or candidate at any time [(1)(a)] or, more particularly, when a candidate for election [(1)(b)].

Staff noted that some of the provisions of Canon 5C(1) have counterparts in Model Rule 4.2(B), which governs what a candidate may do but which also establishes a time-frame before the first applicable election in which the candidate can engage in the permissible conduct. The importance of the time-frame, he said, is that Rule 4.2(B) permits certain conduct within the time-frame that is otherwise prohibited under Model Rule 4.1. Conversely, he said, some of the conduct that is generally permitted under Canon 5C(1)(b) is permitted under the model rule only during the identified time-frame.

With respect to the time-frame provision in Model Rule 4.2(B), which is left to adopting jurisdictions to select the specific time-frame, Justice Crothers noted that Oklahoma selected 180 days, Minnesota selected 2 years, and Arizona deleted the entire provision.

Judge McCullough wondered about the specific reasoning for including the time-frame element in the model rule. Justice Crothers noted the increasing concern nationwide about the lengthening time during which candidates for judicial office are finding it necessary to engage in election activity. He observed that current Canon 5C(2), which governs campaign committee activity, establishes a time-frame within which it is permissible for a committee to solicit contributions on behalf of a candidate. Similarly, the Reporter's Explanation regarding the time-frame element in Model Rule 4.2(B) offers a limited explanation in emphasizing the importance of disconnecting "being" a judicial candidate from engaging in the "activities" of a candidate. The example given is that of a judge elected for a ten-year term who should not be able to raise campaign funds for the entire term of office, but should be able to identify as a candidate during that time period.

Judge McCullough expressed skepticism about the need to include the time-frame in the manner suggested in the model rule. Justice Crothers said not having the time-frame may lessen the prospect for constitutional challenges regarding election activity allowed under the First Amendment. He said he is generally comfortable with current Canon 5C(1).

Joel Fremstad wondered whether it would be worthwhile to split C(1)(a) into separate provisions: one allowing a candidate to speak at any time on behalf of the candidacy, and the other allowing a judge to speak at any time on behalf of measures to improve the law, the legal system, or the administration of justice. Committee members discussed whether there is allowance elsewhere in the model rules for a judge speaking on about improvements to the law, etc. There was agreement that general language in other rules and comments seem to support such activity. Staff said the distinction may be that C(1)(a) would permit speaking about improvements to the law etc., regardless of whether the speaking occurred at a gathering sponsored by a political organization.

Joel Fremstad suggested an alternative may be to retain C(1) in its entirety but limit it to conduct by candidates.

Following further discussion, it was moved by Joel Fremstad and seconded by Judge McCullough that Canon 5C(1) be modified as follows: in the opening line of C(1), replace "A judge or a candidate*" with "A judicial candidate*"; delete "(b) when a candidate for election" and recaption the following (i) through (iii) as (b) through (d).

It was moved by Justice Crothers, seconded by Ron Carlisle, and carried that the motion be amended to include deletion of "at any time" from C(1)(a).

The motion, as amended, carried.

Committee members next reviewed current Canon 5C(2) [Attachment B (February 23, 2009), p.9, lines 6-22, p.10, lines 1-7], which governs campaign committees and would be renumbered at Rule 4.4.

Judge McCullough said it should be clear that a campaign committee may accept contributions, as well as solicit them.

It was moved by Judge McCullough, seconded by Justice Crothers, and carried that Section C(2) be modified on p.10, line 3, to insert "or accept" after solicit.

It was moved by Judge McCullough, seconded by Rep. Hawken, and carried that references to "committees" in Section C(2) be changed to the singular with related verb changes as appropriate.

Staff noted the concluding sentence of Section C(2) disallowing the use of campaign contributions for private benefit. He said the Committee had included this prohibition as a new provision in Section A(1).

It was moved by Justice Crothers, seconded by Judge McCullough, and carried that the noted language be deleted from Section C(2).

Committee members next reviewed current Section 5D [Attachment B (February 23, 2009), p.11, lines 7-9] regarding political activity by incumbent judges. Justice Crothers said the section could be deleted since the subject matter is subsumed within the general provision regarding candidate activities and provisions of Section A(1).

It was moved by Justice Crothers, seconded by John Mahoney, and carried that Section 5D be deleted.

Committee members then reviewed current Section 5E (Attachment B (February 23, 2009), p.11, lines 16-20],which discusses application of Canon 5 to incumbent judges and judicial candidates and to lawyers who are candidates for judicial office.

Judge McCullough said the general focus of the provision is helpful in clarifying that a successful candidate in an election is subject to the Code of Judicial Conduct and an unsuccessful candidate is subject to the Rules of Professional Conduct. He said the reference to "incumbent" judge seems out-of-place since the term is not used elsewhere in the new provisions. Justice Crothers agreed the section is useful, particularly in providing general guidance about application of election activity provisions to particular candidates.

It was moved by Justice Crothers and seconded by Rep. Hawken that Section E be retained.

It was moved by Judge McCullough, seconded by Ron Carlisle, and carried that the motion be amended to include deletion of "incumbent" from the first sentence and replacing "whether or not an incumbent" with "whether or not already a judge" in the second sentence.

Joe Larson wondered whether it is useful or appropriate to provide that judges can only be sanctioned under the Code of Judicial Conduct and not the Rules of Professional Conduct. Judge McCullough said the section does not necessarily mean that the two ethical codes are mutually exclusive. He observed that the Code of Judicial Conduct and the Rules of the Judicial Conduct Commission may impose harsher sanctions on a judge than would the lawyer discipline rules.

The motion, as amended, carried.

Committee members then returned to review current Section 5B [Attachment B (February 23, 2009), p. 7, lines 9-23, p.8, lines 1-4], which governs candidates for appointment to judicial and other governmental office. Staff noted that the model rule counterpart is Rule 4.3 and in that rule paragraphs B(1) and (2) were deleted. He said Rule 4.3 also differs from the current provision in permitting the candidate to solicit endorsements from "any person", as well as from an organization, but provides that the organization cannot be a partisan political organization. He said Rule 4.3 relates only to candidates for appointment to judicial office, while Model Rule 4.5 - which the Committee has already reviewed - governs candidates for appointment to non-judicial office.

Committee members discussed issues associated with when a judge could be considered a candidate for appointment to a non-judicial office under Rule 4.5. Judge McCullough suggested the matter should be handled in a comment and should clarify that a judge becomes a candidate when the judge engages in acts that would render the judge a candidate seeking appointment to judicial office. The issue will be reviewed further when the comment to Rule 4.5 is discussed.

Judge McCullough drew attention to Section 5B(2)(d), which allows a candidate to contact lawyers and others for expressions of support and to distribute personal and professional information in the form of resumes that describe the qualifications for office. He said the provision may make sense in the context of the federal selection process but seems inappropriate in a state selection process in which judicial nominating committees are used. He observed that the reference to "appointing authority" in B(2)(d) is modified by a cross-reference to B(2)(a). Staff noted that the provision is unique to the North Dakota Code and resulted from a request for amendment submitted by a referee seeking appointment to a judgeship.

Following further discussion, it was moved by Justice Crothers and seconded by Joel Fremstad that Section 5B, with the deletion of references to governmental and non-judicial offices, be retained as new Rule 4.5.

Judge McCullough said it should be made clear that the reference in Section 5B(2)(d) to "appointing authority" does not include the judicial nominating committee. He noted that Section 5B(2)(a) includes a nominating commission under the rubric of "appointing authority". Justice Crothers suggested the issue could be better addressed in the comment.

It was moved by Judge McCullough, seconded by John Mahoney, and carried that the motion be amended to include modifying Section 5B(2)(a) to read: "communicate with the appointing authority or any selection or nominating commission or other agency designated to screen candidates;".

The motion, as amended, carried.

Next Meeting

Chair Mattson said the next meeting will be held on June 9 in conjunction with the start of the SBAND Annual Meeting.

There being no further business, the meeting was adjourned at 12:25 p.m.

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Jim Ganje, Staff