Judiciary Standards Committee Minutes November 14, 2008

Judiciary Standards Committee

MINUTES

Judiciary Standards Committee

Doublewood Inn, Bismarck November 14, 2008

Members Present
Judge Douglas Mattson, Chair
Judge Zane Anderson
Justice Daniel Crothers
Dan Dunn (SBAND Liaison)
Paul Ebeltoft
Joel Fremstad
Rep. Kathy Hawken
Joe Larson II
John Mahoney
Lisa Fair McEvers
Judge Steven McCullough

Members Absent
Linda Bata
Judge Sonja Clapp
Sen. Judy Lee
Judicial Referee Connie Portscheller
Wayne Sanstead
Municipal Judge William Severin

Chair Mattson called the meeting to order at 10:00 p.m. and thanked Justice Crothers for serving as Acting Chair for the September meeting. He then drew Committee members' attention to the minutes of the September 12, 2008 meeting, which were distributed by email.

It was moved by Joel Fremstad, seconded by Lisa McEvers, and carried that the minutes be approved.

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

Residual Issue - Rule 3.13 Revisions

Staff drew attention to Attachment C (November 10, 2008) and the draft amendments to Rule 3.13, particularly paragraph (A)(11), resulting from the September 12 meeting. He noted that the Committee discussed at length revisions made to Rule 3.13(A)(11) in the Ohio proposal. He said upon reviewing the tape of the discussion it was unclear whether the Committee intended to follow the Model Rule version of paragraph (A)(11) or the Ohio version. After discussion, Committee members agreed the intention was to include the Ohio version.

Committee members then turned to review of Model Canon 4 and ND Canon 5 governing political activity by judges and candidates for judicial office.

Model Canon 4 and Rules 4.1 - 4.5

With respect to the general structure of Model Canon 4, staff noted that the principal difference is that Rule 4.1 and its limitations apply generally to all judges, whether or not a judge is also a judicial candidate, while Rule 4.2 and its permitted activities apply to a person who is a candidate for judicial office. Particularly, he said Rule 4.2(B) permits some forms of political activity during a period of time [to be selected] before an election that are otherwise generally prohibited under Rule 4.1(A). He noted also that Model Rule 4.4, which governs campaign committees, differs significantly from its North Dakota counterpart, Canon 5C(2), because Canon 5C(2) reflects recent amendments adopted by the Supreme Court after Committee study in response to the 8^th Circuit's opinion on remand from the U.S. Supreme Court's opinion in Republican Party of Minnesota v. White. He said the Committee, as part of its earlier study effort and proposed amendments, expanded the definition of "political organization", which is now reflected in the North Dakota Code Terminology, and is different from the Model Code definition.

Judge McCullough recalled that the current definition of "political organization" was noted earlier as a possible topic of discussion when the Committee began its review of Model Canon 4.

Justice Crothers said an initial question for the Committee is whether, with respect to discussion of Model Canon 4 and ND Canon 5, to continue the present approach of using the model provision as the basis for review while importing, as necessary, parts of the ND canon or whether to return to the ND canon as the basis for review. He noted that the amendments to ND Canon 5 resulting from the Committee's previous work became effective March 2006 and significantly modified the canon in response to the U.S. Supreme Court's White opinion and the 8^th Circuit's opinion on remand. He said an advantage to using current Canon 5 as the basis for discussion is that major work has already been done to address issues unique to this jurisdiction. Additionally, he noted that Model Canon 4, once adopted in various jurisdictions, will likely be challenged as having unsatisfactorily responded to the White opinion. He said if that occurs and Canon 4 provisions are invalidated, North Dakota may be well served in having retained the major changes made to Canon 5.

In response to a question from Judge Mattson, Judge Crothers said Minnesota is the only state in the 8^th Circuit that has concluded a review of the Mode Code and it has followed Model Canon 4 with some modifications. He noted that New Hampshire and Ohio had rejected Model Canon 4 and devised their own political activity rules. He said most of the other jurisdictions that have reviewed the Model Code have followed Model Canon 4.

Judge McCullough said he preferred the structure and approach taken in current Canon 5. Judge Anderson wondered whether it is wise to deviate significantly from the model rule and perhaps then lose the benefits of interpretations of the rule in other jurisdictions.

After further discussion, it was moved by Joel Fremstad, seconded by Justice Crothers, and carried that the Committee use current Canon 5 as the platform for discussion of Model Canon 4 and rules. (Paul Ebeltoft, Judge Anderson - no). It was noted that Canon 5 would then be renumbered as Canon 4.

Committee members then turned to a review of Canon 5 in relation to Model Canon 4.

Canon 5 - Black-letter Heading. Staff noted that Model Canon 4 refers to "candidate" rather than "judicial candidate" and requires that a judge or candidate not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Judge McCullough said following the model canon language is preferable because doing so would remove the phrase "inappropriate political activity", which is vague, and would continue the general references to independence, integrity, and impartiality of the judiciary.

It was moved by Justice Crothers, seconded by Judge McCullough, and carried that the Canon 5 heading be modified to follow the model canon language.

Canon 5A

With respect to the opening language of Section A(1), staff noted that MR 4.1(A) refers to "judicial candidate" rather than just ""candidate" and does not refer to election or appointment to judicial office. He said MR 4.3 separately addresses appointment to appointments to judicial office.

Judge McCullough observed that the model code definition of "judicial candidate", which the Committee has accepted, includes appointment to judicial office.

It was moved by Judge McCullough, seconded by Justice Crothers, and carried to change "Candidates" in the Section A heading to "Judicial Candidates" and to modify Section A(1) to read: "Except as authorized in [ cross-reference reserved], a judge or judicial candidate shall not:".
Joel Fremstad observed that the model rule provision, in addition to including cross-references to other applicable model rules, also provides an exception for when an activity is "permitted by law". He asked whether the additional exception should be included in Section A. Justice Crothers noted that the Arizona and Utah code reviews did not include the reference. Additionally, he said there are kinds of political activities that are permitted by law that the code of judicial conduct does not allow. He said including a reference to activities "permitted by law" may expand the kinds of political activities permissible for candidates for judicial office.

Joel Fremstad asked whether "permitted by law" refers only to statutory law or perhaps also includes constitutional law or theory. Justice Crothers said it likely includes the latter. He noted that Utah's revisions, in addition to not including "permitted by law", directly linked the exception to activities permitted "in this canon".

Following further discussion, there was agreement that the reference to "permitted by law" should not be added.

With respect to the reference to "political organization" in Section A(1), staff reiterated that the current definition is more expansive than the model code definition.

Chair Mattson asked whether Committee members should discuss the current definition since "political organization" is a common reference in ND Canon 5 and the model canon.

It was moved by Judge McCullough and seconded by John Mahoney that the current definition of "political organization" be retained.

Joel Fremstad observed that the model code definition includes the statement that "for purposes of this code, the term does not include a judicial candidate's campaign committee". He asked whether that provision should be included in the current definition. Justice Crothers said the additional language does not appear to add or clarify anything.

After further discussion, the motion carried.

There was no change with respect to the reference in Section A(1) to being a delegate to a political convention.

With respect to Section A(1)(b) [publicly endorsing or opposing another candidate for public office], Justice Crothers said the Model Rule 4.1(A)(3) does not include the reference to "another" candidate, while the current provision does. Lisa McEvers asked whether the model rule would then mean that a candidate could not publicly oppose the person running against the candidate. Staff said Model Rule 4.2(B)(3) would allow a candidate to publicly oppose a candidate for the same office during an identified timeframe before the election. The approximate counterpart in current Canon 5 is Canon 5C(1)(b)(iii).

There were no changes to Section A(1)(b).

There were no changes to Section A(1)( c)[speeches on behalf of a political organization.

With respect to Section A(1)(d)[seeking or accepting a letter of support or an endorsement], staff said the Model Rule 4.1A(7) provides that a judge or candidate cannot seek, accept, or use an endorsement. Additionally, he said the current provision includes "letter of support", while the model rule does not.

Justice Crothers wondered whether there is a practical difference between accepting and "using" an endorsement. John Mahoney noted that even if a candidate does not "accept" an endorsement, that does not eliminate the fact of the endorsement.

Paul Ebeltoft gave the example of a member of the public finding that an organization had endorsed a judge running for office, but the judge not being able to "use" the endorsement. He asked how the public can know the practical effect of the rule's limitation on use of the endorsement. He said one approach may be for the judge to insert a particular statement on the judge's campaign advertisements so there is a distinction between ads the judge can use and ads expressing the endorsement of others, which the judge cannot use. He said it may be beneficial to have clearer line of demarcation between what the judge candidate can do and what everyone else can do.

With respect to Section A(1)(e) [soliciting funds for, paying assessment to, making contribution to political organization or candidate], staff said Model Rule 4.1(A)(4) is the same except that the it includes "for public office" after "candidate".

It was moved by Joel Fremstad, seconded by Justice Crothers, and carried to modify Section A(1)(e) to insert "for public office" after "candidate".

With respect to Section A(1)(f) [purchasing tickets for or attending gatherings sponsored by a political organization or candidate], staff said the current provision is somewhat similar to Model Rule 4.1(A)(5) except that the model rule refers to "dinners", rather than gatherings, and refers to "candidate for public office", rather than "candidate for legislative or executive office". He noted that Model Rule 4.2(B)(4) would allow this activity during a specific timeframe before an election.

With respect to the issue of timing and Model Rule 4.2(B), Judge McCullough asked whether the Committee should consider whether to establish a time period with regard to permissible activities that distinguishes between being a sitting judge and being an active candidate. He said applying the prohibitions in Section A(1) to a candidate, as well as a sitting judge, may make the rules more complicated than necessary. He said one alternative may be to fashion Section A(1) so that it applies to "a judge". He said if there is a time period within which there are exceptions for a candidate to the prohibitions in Section A(1), then it seems counterproductive to include candidates in that same section. He said the exceptions threaten to swallow the general prohibitions and he is concerned about establishing one set of rules for a candidate during one time period, and a different set of rules for a candidate during another time period. The better approach, he said, may be to simply provide that once a person announces candidacy, then the rules apply. He said a time period within which certain rules apply may make sense when directed specifically at incumbent judges.

Justice Crothers said the Committee may be able to reach a firmer conclusion about how to address the question once Canon 5C is reviewed. That canon, he said, currently governs what are permissible activities for a candidate for election. He said once Canon 5C has been reviewed, the Committee could return to Section A(1) and consider whether further changes should be made with respect to including candidates. Committee members generally agreed.

With respect to Section A(1)(f), John Mahoney asked why the provision includes a specific reference to legislative or executive office. Staff explained that the language was changed from "political office" as part of earlier amendments developed by the Committee and subsequently adopted.

It was moved by Judge Anderson, seconded by John Mahoney, and carried that Section A(1)(f) be modified to replace "candidate for legislative or executive office" with "candidate for public office".

Judge McCullough drew attention to Section 5A(3)(d)(i), which requires that a candidate for judicial office not make pledges, promises, or commitments with respect to cases, controversies, or issues likely to come before the court which are inconsistent with the impartial performance of adjudicative duties. He noted that the model rule relocated this provision to Section A, which applies to judges and judicial candidates [See, MR 4.1A(13)].

It was moved by Judge McCullough and seconded by Judge Anderson that Section 5(3)(d)(i) be relocated to Section A(1) as a new subparagraph (g).

Judge McCullough explained that the change would reflect part of the analysis in the U.S. Supreme Court's opinion in Republican Party of Minnesota v. White that was concerned with the underinclusiveness of the Minnesota code provision at issue in the case. He said the change would apply the prohibition to non-judge candidates and all judges, not just to those who are candidates.

The motion carried.

Joel Fremstad asked whether the Committee should consider Model Rule 4.1(A)(6), and (9)-(12) since those are new provisions that also impose restrictions on judges and judicial candidates.

With respect to Model Rule 4.1(a)(6)[publicly identifying as a candidate of a political organization], Judge McCullough said the provision is likely unnecessary since North Dakota has non-partisan judicial elections. Justice Crothers noted that the Indiana code review changed the provision to prohibit publicly identifying as a member or candidate of a political organization. He said it may be beneficial to include the provision if it is a prohibition against identifying as a member.

It was moved by Justice Crothers and seconded by John Mahoney that Section A(1) be further modified to include as a new subparagraph: "publicly identify himself or herself as a member of a political organization".

Judge McCullough asked whether the expanded definition of political organization may pose a problem in light of the suggested prohibition. Justice Crothers said the suggested language would not prohibit being a member; it would only disallow publicly identifying oneself as a member.

The motion carried.

With respect to Model Rule 4.1(A)(9) [use or permit the use of campaign contributions for the private benefit of the judge, candidate, or others], staff said the model provision is essentially the same as the last sentence of current Canon 5C(2), except that the model rule includes the reference to "the judge".

Judge McCullough wondered how seeking election as a judge can not be for private benefit. Joel Fremstad said the likely objective is to disallow the use of campaign contributions for expenses unrelated to the campaign. Judge McCullough said if that is the intent of the language, then the language is inadequate. Rep. Hawken agreed.

Justice Crothers recalled the earlier discussion of possibly removing candidates form Section A and wondered whether there was a need to consider the issue at this point.

With respect to Model Rule 4.1(A)(12) [making statements that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court], it was moved by Justice Crothers and seconded by Judge McCullough that the model provision be included as a new subparagraph to Section A(1).

Judge Anderson asked whether Model Rule 4.1(A)(9) and (10) should be included in Section A(1). Justice Crothers said the provisions would likely be more suitable for a section related only to candidates.

The motion carried.

It was moved by Joel Fremstad and seconded by Judge Anderson that Model Rule 4.1(a)(10) [use of court staff, facilities, or other court resources in a campaign for judicial office] be included as a new subparagraph to Section A(1).

Rep. Hawken observed that an earlier court decision allowed candidates for judicial offices to use court facilities in campaign advertisements.

Justice Crothers suggested "facilities" should be deleted from the suggested language.

Joel Fremstad said perhaps a reference to "except as otherwise provided by law" could be included in the language to address the impact of court decisions.

After further discussion, the motion failed.

It was moved by Joel Fremstad and seconded by Judge McCullough that Model Rule 4.1(a)(9) be modified to read : "use or permit the use of campaign contributions for non-campaign related expenses" and that the modified provision be included as a new subparagraph to Section A(1).

Justice Crothers said the current state of judicial elections may mean that some judicial office holders will preemptively start a campaign fund because of the increasing cost of judicial races. Then, he said, if an opponent does not materialize, questions arise concerning the disposition of any campaign funds. He said ethics opinions are greatly divided on the issue, with some allowing the candidate to keep the funds and declare them as income, some requiring the funds to be returned or at least returned on a pro rata basis if possible, some allowing the funds to be given to other judicial candidates, and some allowing the candidate to retain the funds until the next election in which the candidate is involved.

After further discussion, the motion failed.

It was moved by Judge Anderson and seconded that Model Rule 4.1(A)(9), without change, be included as a new subparagraph to Section A(1).

Judge Anderson said including the provision would gain the benefit of interpretations in other jurisdictions that adopt the language.

Judge Mattson asked how loans from the candidate to the campaign would be affected by the prohibition. He said if there are funds left over at the end of the campaign, there may be an issue concerning how the funds are returned or repaid.

In response to a question from Joel Fremstad, Judge Mattson said under new reporting requirements, a loan by the candidate to the campaign must be reported. He said contributions by the candidate, however, are not required to be reported.<

After further discussion, the motion carried. (Dan Dunn - no).

It was moved by Joel Fremstad and seconded by Judge McCullough that Model Rule 4.1(A)(11) [knowingly, or with reckless disregard for the truth, make any false or misleading statement] be included as a new subparagraph to Section A(1).

Justice Crothers observed that the language is very broad and could apply to any statement. Dan Dunn agreed and said the prohibition, on its face, would seem to apply to any statement made anywhere by the judge or judicial candidate. Justice Crothers said the Utah code review added "in seeking judicial office", which narrows the scope of the provision. He said Comment [7] to the model rule indicates the prohibition applies to candidates and their campaign committees, rather than to sitting judges. Staff said the Reporter's Explanation of Changes indicates model paragraph (A)(11) is intended to replace language in current Canon 5A(3)(ii), which prohibits the knowing misrepresentation of the identity, qualifications, position, or other fact concerning the candidate or an opponent. He said the Explanation further explains that paragraph (A)(11) is regarded as "established in the law of libel and slander".

Joel Fremstad said an alternative may be to consider modifying Canon 5A(3)(ii) when that provision is reviewed.

Following further discussion, the motion failed.

Committee members then reviewed Section A(2) of current Canon 5, which requires a judge to resign from judicial office upon becoming a candidate, in either a primary or general election, for a nonjudicial office. Staff said Model Rule 4.5(A) is the counterpart to Section A(2). He noted that the model rule does not refer to primary or general elections, and provides a general exception to the resignation requirement ("unless permitted by law to continue to hold office"). He said the model rule adds paragraph (B), which provides that a judge is not required to resign upon becoming a candidate for a nonjudicial appointive office as long as the judge complies with other provisions of the code.

Judge McCullough wondered why Section A(2) does not include reference to special elections. Justice Crothers said it is uncertain why references to any elections are necessary.

Joel Fremstad suggested modifying the operative language to require resignation "upon becoming a candidate for a nonjudicial elective office" and to delete the references to primary and general elections.

It was moved by Joel Fremstad and seconded by John Mahoney that Section A(2) be modified as suggested.

Paul Ebeltoft noted that a definition of "candidate" has not be included in the Terminology approved thus far by the Committee. He said that may result in confusion in how Section A(2), with the suggested change, may be interpreted. It was noted that Section A(2) currently indicates that "candidate" is a defined term.

Paul Ebeltoft asked whether the *, indicating "candidate" is a defined term, should be removed. Justice Crothers said the current definition of "candidate" indicates the term has the same meaning when applied to a judge seeking election or appointment to a nonjudicial office.

Judge McCullough suggested the noted language could be added to the comment following relocated Section A(2) and the * could be removed from "candidate", which would indicate the term is not defined. He said that approach may be more consistent with the Committee's earlier adoption of a definition of "judicial candidate".

In response to a question from Judge Anderson, it was agreed that Section A(2), once relocated, would have the same title as MR 4.5.

The motion carried.

Justice Crothers asked whether paragraph (B) of MR 4.5 should be included in revised Section A(2). He said paragraph (B) provides that, upon becoming a candidate for nonjudicial appointive office, a judge is not required to resign but must comply with the other provisions of the code.

In response to a question from Joel Fremstad, Justice Crothers said there is no counterpart in current Canon 5B to paragraph (B) of the model rule. He noted that the Hawaii code review of paragraph (B) replaced "becoming a candidate" with "being nominated" and required the judge to resign. He said the Delaware code review replace "a nonjudicial appointive office" with "appointment to a nonjudicial office".
It was moved by Joel Fremstad, seconded by Judge McCullough, and carried that paragraph (B) of MR 4.5 be included in revised Section A(2).

Committee members next reviewed current Section A(3) of Canon 5, which directly governs activities of a candidate for judicial office.

Judge McCullough said the reference in the Section A(3) introductory language to "candidate for a judicial office" should be changed to "judicial candidate". With respect to the new definition of "judicial candidate", he asked whether consideration should be given to providing a different time period for the activities of a sitting judge, for example extending the time period within which the sitting judge would be subject to the rule's requirements.

Justice Crothers said the portion of the definition that affects sitting judges is linked to, among other things, the date of filing a petition. He said the method of addressing when a sitting judge is subject to the rule's requirements may be to add circulation of a petition as a triggering event. Circulating a petition, he said, is part of the background activity that makes a sitting judge a candidate. Judge McCullough agreed.

Judge Anderson asked whether circulating a petition could be considered similar to soliciting support, which is addressed in the definition. Justice Crothers said he would not regard circulating a petition as necessarily being the same as solicitation of support.

Following further discussion, it was moved by Judge McCullough, seconded by Justice Crothers, and carried that "circulates a petition of candidacy," be inserted immediately before "makes a public announcement" in the definition of "judicial candidate".

It was moved by Judge McCullough, seconded by Judge Anderson, and carried that the introductory language of Section A(3) be modified to replace "A candidate* for judicial office" with "A judicial candidate* ".

Committee members agreed that Section A(3) would, following restructuring of the Canon, become Rule 4.2.

With respect to the revised introductory language to Section A(3), Judge McCullough asked whether the reference now to "A judicial candidate" should be prefaced by "Notwithstanding Rule 4.1,". That, he said, would reflect that new Rule 4.1 [revised Section 5A(1)] establishes the general rules to which new Rule 4.2 would provide exceptions.

It was moved by Justice Crothers, seconded by Judge McCullough, and carried that the introductory language to Section A(3) be further modified to insert "Notwithstanding Rule 4.1,".

With respect to Section A(3)(a), staff said the language regarding acting in a manner consistent with the independence, integrity, and impartiality of the judiciary is the same as MR 4.2(A)(1). He said language relating to maintaining the dignity of the judiciary was deleted from the model rule. He said the second clause relating to encouraging family members to adhere to the same standards of political conduct as the candidate has a general counterpart in MR 4.1(B).

It was moved by Judge Anderson and seconded by Paul Ebeltoft that Section A(3)(a) be modified to reflect MR 4.2(A)(1).

Judge Anderson said the Reporter's Explanation of Changes indicates the reference in Section A(3)(a) to maintaining the dignity appropriate to judicial office was deleted from the model rule because it was considered too vague.

Joel Fremstad said the expectation of dignified behavior is important, as is the requirement to act consistently with the independence, integrity, and impartiality of the judiciary. He said he would oppose the change if the result eliminates the requirement to maintain the dignity appropriate to judicial office.

Paul Ebeltoft said if promoting general dignity is an important goal, then the requirement should likely be included in other parts of the code as well, such as Canon 1.

Joel Fremstad said Section A(3)(a) addresses conduct during the election process and an emphasis on maintaining dignity in that context is important.

Following further discussion, the motion carried. (Joel Fremstad, Joe Larson - no).

Justice Crothers drew attention to the second part of Section A(3)(a), which requires the candidate to encourage family members to adhere to the same standards of political conduct as apply to the candidate. He suggested the language should be deleted and replaced with MR 4.2(A)(4), which requires that judicial candidates take reasonable measures to ensure others do not undertake any activities prohibited under MR 4.1 [restructured Section 5A(1)] on behalf of the judge or judicial candidate. He noted there is an exception for campaign activities under MR 4.4.

It was moved by Justice Crothers and seconded by Dan Dunn that Section A(3)(a) be further modified as described.

Joel Fremstad asked whether it would be preferable to set the proposed new language out in a separate provision, as it is in MR 4.2(A)(4), rather than incorporating the language in Section A(3)(a).

Justice Crothers said the question may be addressed as part of the general restructuring of the rule. For example, he said the new language could be reflected as a new Section 3A(b).

After further discussion, the motion carried.

Next Meeting

Committee members discussed the approach to future meetings. There was general agreement that future meetings should generally start at 9:00 a.m. There was also agreement that the February 20 meeting should be rescheduled to February 27 if possible.

There being no further business, the meeting was adjourned at 1:45 p.m.

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Jim Ganje, Staff