*1 imputed cobson’s income must be under 2006 ND 1 75-02-04.1-07(3)(a). N.D. Admin. Code MILLER, Palmer J. Claimant that, argues by imput- 17] Jacobson [¶ Appellant ing sixty-seven one-hundred and times the v. month, hourly wage per federal minimum monthly support obligation his child should WORKFORCE SAFETY AND He is incorrect. “In applying $168. INSURANCE, Appellee guidelines, the child support obligor’s monthly ending fifty net income amount

dollars or more must up be rounded dollars, REAL Respondent. nearest one hundred and must oth- BUILDERS INC. erwise be rounded down to the nearest one No. 20040064. hundred dollars.” N.D. Admin. Code 75-02-04.1-02(5). Rounding Jacobson’s Supreme Court of North Dakota. $900, imputed up income the correct Jan. 2006. case, child, support level of in this for one See N.D. Admin. Code 75-02- $207. Rehearing Denied Feb. 2006. 04.1-10. The effective date this de support creased level of should be the date

of service of Jacobson’s motion to decrease

support, February 2005. Wiggin See ¶31, 16,

ton v. Wigginton, 2005 ND (noting

N.W.2d 108 “the amount of child

support is set the date of the motion modify, good absent a reason for not so”).

doing

Ill

[¶ 19] We reverse the trial court’s deci-

sion instructing and remand the trial court

to enter judgment an amended setting Ja-

cobson’s support obligation child at $207

month. WALLE, W. 20]GERALD VANDE

C.J., FOUGHTY, D.J., DONOVAN J. CROTHERS,

DANIEL J. and DALE V.

SANDSTROM, JJ, concur. Honorable DONOVAN FOUGHTY, D.J., sitting

JOHN in place of

KAPSNER, J., disqualified. *2 Little, Little Law- Dietz & D.

Stephen Bismarck, appellant. claimant and yers, for At- Wilking, Special Assistant F.J. Leo General, Fargo, appellee. torney MARING, Justice. from a dis- appealed Palmer Miller affirming a judgment Work-

trict court (“WSI”) order Safety and Insurance force disability and voca- him further denying Miller ar- benefits. tional rehabilitation identify the first failed to gued and that option appropriate rehabilitation to im- fair due denied a he was Previ- communications. proper evidentiary for an ously, remanded we alleged improper ex hearing regarding v. Miller Work- parte communications. Insurance, 2004 ND Safety and force follows the opinion 641. This 684 N.W.2d (“ALJ”) Administrative find- Judge’s Law evidentiary hearing, WSI’s ings at the of ex on the issue final determination on remand. We reverse communications findings that adoption of the ALJ’s éx'parte communi- were no there judgment court cations and the district conclude Mil- order. affirming WSI’s We hearing, and we given a fair ler was rehearing on the for a remand to WSI merits.

I who acknowledged that he it, received but respond did not to it. In July Miller suffered a [¶2] injury work-related to his lower back while In April Jolliffe issued WSI’s *3 employed carpenter as a with Real Build- findings, conclusions, and order rejecting ers, Inc. Compen- of Minot. The Worker’s the ALJ’s recommendations. WSI con- Bureau, WSI, sation accepted now cluded employable Miller was full time and paid claim and associated expenses medical ineligible for disability benefits after Octo- disability and benefits. Between the time 19, ber 2001. Miller appealed to the dis- injury issue, of his and the order at Miller court, trict which affirmed WSI’s order. underwent capacity numerous functional The district court concluded that the dif- (“FCE”) evaluations to determine his abili- ference between the ALJ’s recommended ty to return to gainful employment. A decision and WSI’s order was based on a March 2001 placed light FCE Miller at “a difference in the weight credibility and job full classification on a time basis.” In given to the evidence. The district court 2001, September WSI notified Miller of its concluded that Miller had received a fair decision to discontinue his benefits effec- hearing. 19, tive October 2001. Miller requested and, reconsideration of WSI’s decision On appeal, [¶ 5] Miller claimed WSI November WSI issued an order de- identify failed to the first appropriate re- nying further benefits to Miller. In the habilitation option and that he was denied order, employable, WSI stated Miller was a fair hearing due to improper parte basis, retraining, on a full-time as communications. This temporarily Court solicitor, telephone a rep- customer service remanded for an evidentiary hearing re- resentative, walker, floor or mail clerk. garding alleged parte requested Miller a formal hearing, which Miller, communications. 2004 ND was held December before a tem- 684 N.W.2d 641. The ALJ found that five porary ALJ. The ALJ issued a recom- relevant place, communications took four law, mended conclusions of of which parte were ex and none of which order, in which he concluded Miller improper. argues were Miller agency employable only basis, on a part-time failed to record pre-decision parte oral ex could not gainful obtain substantial em- communications, hid the existence of writ- ployment, plan and WSI’s rehabilitation communications, ten ex parte and main- had not appropriate identified an rehabili- tains that impermissible commu- option. tation place. nications took After hearing, [¶ 3] WSI’s outside litigation Dopson, Lawrence wrote II Wahlin, a attorney, letter Tim WSI Ex communications in admin- expressing his concern with the ALJ’s rec- proceedings istrative are those that are informing ommendation and Wahlin of dif- “without notice and all par- possibilities ferent depend- could arise participate ties to in the communication.” ing on whether adopted rejected or N.D.C.C. For administra- the ALJ’s At argument, decision. oral tive proceedings under the North Dakota WSI’s outside counsel stated this was the Act, procedure Agencies normal Administrative Practice ch. types these of cases 28-32, N.D.C.C., and he assumed the letter was certain ex commu- transferred way in some permitted to Nick nications are WSI claims while others are director. A copy of the letter prohibited was sent to improper. as 28-32- fact, conclusions of findings of 28-32-37(1), pro- mended

37. Section issued, except orders have been vides: for the administrative 2 and in subsections Except provided as may communicate agency head disposition for the required or unless k. af- negotiation settlement regarding author- specifically matters of ex fact, con- findings of recommended ter statute, head by another ized law, and orders have been clusions adjudicative pro- in an hearing officer issued. communicate, directly may not ceeding in the issue indirectly, regarding relevant found that five The ALJ *4 proceeding while proceeding, of which place, took four communications any per- any party, with with pending, were and none of which parte ex were interest or indirect a direct who has son divided the communi- The ALJ improper. with proceeding, of the in the outcome occur- categories: those into two cations participate allowed to person any other Temanson’s of ALJ ring before issuance any person or with proceeding, (pre-decision); decision recommended stage of the previous at a presided who Te- occurring after issuance of ALJ those opportu- notice without proceeding, (post-de- decision manson’s recommended in the participate nity parties for all cision). communication. com- the three The ALJ concluded 8] [¶ added). 2 of 28- Subsection (Emphasis to issu- prior occurred munications which 32-37, provides: N.D.C.C. decision were recommended ance of the the hear- person is than one more When communications be- improper parte ex not adjudicative proceeding, officer in an ing by they authorized N.D.C.C. cause were may communicate with persons those §' pending a matter regarding each other agency An head panel. before the pre-decision com The three communicate with may officer hearing authorized N.D.C.C. munications were assistants aid or receive if staff from they prior occurred because augment, di- furnish, do not assistants recommended decision. to the ALJ’s minish, in the modify the evidence are to be statute used “Words record. sense, ordinary unless in their understood added). 4 of 28- Subsection but (Emphasis contrary plainly appears, intention a 32-37, provides: code are to be explained any words explained.” N.D.C.C. as thus conducted understood adjudicative proceeding

In an in a statute are to be § 1-02-02. “Words agen- than the hearing officer other by a sense, ordinary that is understood their head, the administrative cy head, ordinary person get could meaning an agency and v. Velas reading the section.” State parties for all notice and 217, ¶ 4, 602 N.W.2d 693. 1999 ND quez, and con- may communicate participate, require into the statute a adjudica- will not read of the We the status regarding sult prior made settlement, any communications ment that discovery, proceeding, tive improper not ex which were decisions,. matters to the decision and other litigation time, at that but attor- communications between commonly communicated commu which would be client, ney permit made after the deci they if were This decisions. nications head to make informed sion, after the ALJ’s must disclosed recom- apply after does not subsection require Following does not evidentiary decision. The statute 13] im- remand, that communications which were not on the ALJ found that Jolliffe as proper communications before the claims director for responsible WSI was subsequently decision must be disclosed for reviewing the findings recommended Rather, after the decision has been made. fact, law, conclusions of and order issued the statute allows these communications ALJ, by the and issuing final order prior to but does not allow the decision upon rehearing. The ALJ also found place these to take once communications director, that as claims was the the decision is made. These three commu- “agency- head” within meaning nications were com- 28-32-37 for the decisions munications. upon made WSI for its final order post-decision Of the communi- two rehearing. additionally The ALJ found cations, one, the draft counsel as- inside conclusions of and final order to sub- signed Dopson to Miller’s case and was the decision, stitute for the was found ALJ’s outside counsel for Miller’s case. *5 be communica- Generally, when [¶ 14] a recommended provisions tion because under the of it fell fact, law, findings of of conclusions and order completed by assigned are ALJ the post- leaves one [¶ 11] This final hearing, to a the Office of Administrative communication, decision the letter written decision, Hearings sends the togeth- ALJ’s counsel, by mistakenly ad WSI’s outside file, hearing er with A copy to Jolliffe. dressed to WSI’s inside counsel of instead of the ALJ’s decision is also sent to the Here, to Nick that Jolliffe. ALJ found injured worker or his and to counsel WSI. it does not make difference whether Jolliffe then reviews ALJ’s decision the outside letter counsel’s was addressed and it to an sends administrative assistant to the inside counsel or to Nick Jolliffe. legal in department, who holds the agree.

We do not by until file a letter is received Jolliffe remand, At of [¶ 12] the time Miller had from commenting outside counsel on the established that WSI’s outside litigation decision. When the letter from outside counsel, had Dopson, written a letter to Jolliffe, received it counsel is is deliv- counsel, Wahlin, WSI’s inside claims ex- ered with the file and along pressing his with the concerns ALJ’s rec- assigned ALJ’s decision to inside counsel fact, ommended of of findings conclusions to for the case review. ¶ Miller, law, 155, 3, and 2004 order. ND Here, remand, on the ALJ found 15] 684 At argument, N.W.2d 641. oral out- that, although there is no of what evidence litigation side Dopson this told specifically, was with the Miller file done Court he assumed his letter trans- was there is no reason to think it was handled ferred to the claims and director other than accordance cus- with WSI’s decision-maker, Id. A copy Jolliffe. of that, tomary found practice. The ALJ letter to Dopson from Wahlin was to sent customarily from out- although the letter Miller’s counsel. Id. There evi- was no commenting side counsel on the ALJ’s rec- indicating dence the record whether letter decision would written to was transmitted to the decision-mak- ommended er, case, Jolliffe, decision-maker, it was or whether the letter was dis- this counsel, Wahlin, cussed mistakenly between inside addressed to WSI’s inside decision-maker, and the that Jolliffe. counsel. The ALJ found outside to The opportunity respond. com- for Miller his comments to be counsel intended prohibits decision-maker. The law communications such municated although the letter Mer- was “direct or indirect.” ALJ found that notice whether counsel, Wahlin, the inside it Collegiate Dictionary addressed to 634- riarn Webster’s Jolliffe, (11th reviewed likely ed.2005), was redirected defines “indirect” as “de- review, him, after his sent WSI’s viating from a direct line course: round- placed legal department about.” file. case, In the ex commu- [¶ 19] file, reviewing Miller’s Wah- After counsel, Dopson, outside nication between lin, of drafted inside decision-maker, Jolliffe, occurred reject- and final order conclusions of Dopson indirectly when the letter from review. decision Jolliffe’s ing ALJ’s counsel, Wahlin, was to inside addressed that, typically, ALJ when a The found decision-maker, redirected to the decision-maker, outside draft is sent to again with the decision included draft commenting counsel’s on the ALJ’s letter from notice sent Wahlin Jolliffe without remand, the included. On ALJ decision is respond. and an for Miller to furnished, no found Wahlin remand ALJ concluded on diminished, or modified the ev- augmented, Dopson that because the letter preparation for the idence record counsel the copied Miller’s case, on Miller. In this draft decision parte. was not communication approval somehow indicated his Jolliffe it is true that the communication While *6 draft returned the draft to the the and im- Dopson and Wahlin was not between for of legal department preparation the parte, ex it does not address the proper final the final order order. When was that occurred when the let- communication completed, signature applied was Jolliffe’s provided to the ter was decision-maker copies “electronically” and were sent It Jolliffe. is that communication

parties and the Office of Administrative Jolliffe, and an without notice Hearings. heard, opportunity Miller to be that is for § of 17] Under N.D.C.C. 28-32-37 improper ex communication. Agencies Administrative Practice Act: The communication outside counsel’s provided 1. in ... an Except as decision-maker, Jolliffe, letter communicate, may not di- head or ... knowledge or participation without the rectly indirectly, any regarding issue Miller or his counsel. in the proceeding, proceeding while the relies on Lawrence v. [¶ 21] ALJ any pending, any

is with with party, Bureau, 60, ND ND Comp. Workers 2000 person has a or indirect in- who direct ¶ 20, 608 conclusion N.W.2d his proceeding, terest in the outcome of the was no ex communi- there person partici- with other allowed However, the ALJ’s interpretation cation. in pate proceeding,.. .without notice prohib- allows communication which partici- and for all opportunity parties directly indirectly. ited to be done in pate communication. Lawrence, In harmon- intent this law is that our Court [¶ 22] The clear 65-01-16(8) provi- § Dopson, outside counsel for and as ized as N.D.C.C. 28-32, codified at person litigated proceeding, chapter who sions now 28-32-37(1), prohibiting may agen- not with communicate the WSI N.D.C.C. Lawrence, head, Jolliffe, 2000 cy without notice communications. ¶ ¶ 60, 20, ND 608 N.W.2d 254. previ- As Id. at 16 (quoting Camero v. United out, 28-32-37(1) States, ously pointed Ct.Cl. 375 F.2d 780-81 (1967)). prohibits direct and indirect communica-

tions between outside WSI counsel and the [¶ 24] The crux of this case is that a agency head without opportuni- notice and letter from Dopson commenting on and ty to be heard while the proceeding is supplementing the evidence was provided 65-01-16(8), pending. N.D.C.C., Section to the decision-maker without providing authorizes: “In reviewing recommended Miller notice and an opportunity to be conclusions, findings, orders, by heard the or- decision-maker. We do not ganization may 28-32-37(2), believe that consult with legal its coun- which provides: “An representing sel head or hearing it In offi- proceeding.” may cer Lawrence, communicate with or our receive aid Court concluded all consul- from staff assistants if the assistants do place tations that take under N.D.C.C. furnish, diminish, augment, or modify cannot be improper record,” exonerates the Lawrence, because of N.D.C.C. ch. 28-32. communication of Dopson’s ¶ letter to the 60, 20, 2000 ND 608 N.W.2d 254. This decision-maker prohibition from the of ex Court Lawrence did not provid- sanction parte communications. ing a letter from outside counsel to the decision-maker without notice to the claim- [¶ 25] We do not dispute that inside ant and his counsel. See id. counsel, Miller and Wahlin, can confer with the deci- his counsel no sion-maker, had notice that the letter parte. However, addressed to inside counsel would pro- when Wahlin furnished Jolliffe with a let- vided to the decision-maker and ter he had no received from litigation outside to be heard the knowledge the decision- of the claimant or maker on his it the contents of that was an letter. communication and notice should have im- Lawrence, In this Court recog- mediately given been Miller either strong policy nized the prohib- reasons for *7 addition, Wahlin or Jolliffe. In the letter iting parte communications between an sent to goes beyond Wahlin the evidence in attorney represented who atWSI’ the ad- the record of the At hearing case. the on judicative hearing agency decision- remand, Dopson testified that his state- maker: in ments his letter to phy- Wahlin about a sician for Miller were not in evidence. He “One of the premises fundamental inher- further typical testified that it is not to in concept ent the adversary of an hear- communicate to the decision-maker some- ing, particularly if it is of the evidentiary thing case, outside the record. In this the type, is that adversary neither per- be Dopson letter from provided by Wahlin to mitted to in engage an ex commu- “augmented” Jolliffe supplemented or the nication concerning the merits of the evidence the augmenta- in record. That case with responsible those for the deci- plainly prohibited tion is by N.D.C.C. sion. ... It is difficult to imagine a more § serious incursion on fairness than per- to mit representative the of one of the par- We an agency [¶ 26] review decision in privately ties to communicate his recom- the same manner as the district court un- mendations to the decision makers. To der N.D.C.C. 28-32-46. The ALJ’s or- allow such activity would be to render der is not in accordance with the law and the hearing virtually meaningless.” procedures of have not

816 Miller, L. claimant, BURT [¶ 29]DALE fair hear- V. SANDSTROM a afforded A. RISKEDAHL LAURIE FONTAINE. can communicate counsel ing. Outside adjudicative an head while with the L. BURT The Honorable [¶ 30] only if notice proceeding pending D.J., RISKEDAHL, and the Honorable provided heard is to opportunity to be D.J., FONTAINE, sitting in A. LAURIE claimant. J., CROTHERS, KAPSNER, place remand, Jolliffe must be On [¶27] J., disqualified. de participation in WSI’s disqualified from WALLE, Justice, Chief dis- VANDE N.D.C.C., 28-32-37(7), cision. Section senting. provides: of an necessary If to eliminate the effect dissent. respectfully [¶ 31] I in received vio- communication that concluded the Feb- 32] The ALJ section, an agency head lation of this ruary Dopson 2003 letter Wah- adjudicative pro- in an hearing officer communication, lin was not an ex the communication ceeding who receives it was regardless of whether addressed may upon good cause disqualified, that a The ALJ noted Jolliffe. writing being shown provided copy of the letter was to Miller’s agency. portions officer or to definition, it was By counsel. communica- pertaining record under communication by protective tion sealed order may be 28-32-37(1) because communication agency. issued counsel. In was Miller’s Law- shared with in his Dopson’s letter to Wah- statements Comp. rence v. N.D. Bureau this Workers Jolliffe, lin, physi- a about transmitted Court harmonized N.D.C.C. cian were not of Miller with is now codified as N.D.C.C. what against po- highly prejudicial were can 28-32-37 and determined result, sition. we do not believe As legal consult outside with its participate proceed- further Jolliffe can recommendation as reviewing an ALJ’s ings in matter. long as communications not ex those are ¶ 20, parte. ND 254.1 N.W.2d Ill communication at issue provid- Because Miller was never The other apparently a draft of Dopson ed with notice that the letter was decision-maker, and final provided to the conclusions of order *8 judgment by him in Wahlin by reversing prepared and and commu- considered nicated This communication is ALJ’s of con- to Jolliffe. recommended not in the record for this case. judgment, clusions of and order for contained we order and The ALJ determined.this communication reverse WSI’s the district was not communica- judgment affirming court order and rehearing permitted for a on tion it was under remand with direction because Jolliffe, head, § which allows the the merits with disqualified participation. agency head to “communicate with or re- from argument injured his or her 1. We at oral worker or and were told that follow- Lawrence, ing response Court's decision accepting any injured from the practice having of established its outside practice apparently worker. This has on the ALJ's decision in a counsel comment incorporated in an been administrative rule. copied which was letter written

817 (2003); if 75, ceive aid from staff assistants the assis- (2002); § Okla. Stat. tit. 313 furnish, diminish, augment, tants do not or § R.I. Gen. (1993); Laws 42-35-13 modify the evidence the record.” The (2005); § S.C.Code Ann. 1-23-360 S.D. furnished, ALJ found no evidence (2004); § Wahlin Codified Laws 1-26-26 Vt. Stat.- diminished, augmented, or (2003); § modified the ev- Ann. tit. Wash. Rev.Code Miller, however, (2004). idence. argues § 34.05.455 Other states have lan- furnished, diminished, augmented, or mod- guage that is much more restrictive than ified the evidence commenting on the the North Dakota statute and allows little credibility of one of Miller’s witnesses. or no ex communication. See Mont. Specifically, Miller § claims that com- (2005); Code Ann. 2-4-613 N.M. Stat. evidence, menting on the (1998); § Wahlin diminish- Ann. 12-8-13 N.C. Gen.Stat. (2003). ed the evidence with regards § to Miller’s 150B-35 expert witness. prohi- Miller contends the North legislative 36] Dakota history furnishing, bition on augmenting, diminish- provides no in interpreting assistance what ing, modifying or prohibi- the evidence is a by furnish, is diminish, meant augment, commenting tion on evaluating on or the modify, nor do the comments of the draft- and thus is an ers of the 1981 Model State Administrative communication because Wahlin com- Procedure Act. Under the rules of statuto- mented on the evidence. ry assistants, construction staff including The language at issue in N.D.C.C. staff attorneys, are allowed to comment on 28-32-37(2), adopted by when the North or evaluate the evidence. “Words used in Legislature Dakota any was taken statute are to be understood in their sense, the 1981 Model ordinary State Administrative unless a contrary intention adopted by Procedure Act as the National plainly appears, but explained words Conference of Commissioners on Uniform in this code are to be understood as thus (“NCCUSL”). Dakota, State Laws explained.” North 1-02-02. “In in- Iowa, Kansas, along Tennessee, with statute, terpreting a given words must be “furnish, adopted diminish, augment, plain, ordinary, their commonly under- modify” language. Iowa Code 17A.17 meaning; stood and consideration should (2005); (1997); Kan. Stat. Ann. given 77-525 ordinary of sense the statu- (1998). §Ann. words, Tenn.Code 4-5-304 tory None the context in they which are interpreted used, these states have the mean- purpose prompted which ing provision. of that their enactment.” County Stutsman v. Soc’y, State Historical 371 N.W.2d Most other adopted states have (N.D.1985). “If language of a provisions regarding communica- statute is clear unambiguous, the let- tions but have not included language about ter of the disregarded statute cannot be furnishing, augmenting, diminishing, or under the pretext pursuing spirit its modifying evidence. Some states have legislative because the intent presumed language that permissive is much more *9 clear from the of the statute.” Id. at face than the North Dakota explic- statute that 325. itly agency allows heads to receive commu- assistants, nications from staff furnish, staff attor- If the augment, words neys, legal or diminish, counsel. See Ann. modify Ark.Code or interpreted were to ' (2002); § 25-15-209 Comp. 5 Ill. preclude Stat. staff assistants from commenting (2005); evidence, Me.Rev.Stat. Ann. tit. on the there 100/10-60 would be little staff (2002); § 9055 Nev.Rev.Stat. 233B.126 provision. assistants could do under this Act, language the by inserting to com- the Model not allowed were If staff assistants record,” in the evidence the evidence, “may to evaluate they would be unable ment on al- assistants are it clear that staff heads and this made agency to guidance provide By adding the evidence. If the lowed to evaluate purpose. no serve provision would leaving provision while language this to the prohibit to staff had intended legislature aug- evidence, furnishing, prohibition against commenting on from assistants diminishing, modifying or the evi- menting, that inten- clearly have stated they could dence, Rather, have demonstrated the drafters it seems They did not. tion. contemplated language also from that the 1981 staff assistants prohibits provision evi- allowing assistants to evaluate taking away from staff or providing physically part a of our statute Although not dence. given agency to heads. the evidence by inserting the lan- originally adopted, as supported is This conclusion 38] [¶ allowing staff assistants evaluate guage and comments on work the NCCUSL’s removing the words fur- evidence Model of the State 2005 Draft Revision diminish, modify, nish, or augment, Act. The Procedure Administrative furnish, aug- clarified that NCCUSL has currently process in the is NCCUSL diminish, ment, modify or was not intend- Act. The 2005 revising the 1981 Model on or evaluation prohibit ed to comments provision on changes makes revision reasoning, this of evidence. Under C4-106 Section communications. 28-32-37(2) prohibit not does provides part: revision of the 2005 evaluating from evidence. staff assistants (b) prohibit- otherwise communication majority opinion holds the The (1) of this section subparagraph ed parte communication be- improper ex representative of employee an or from when Dopson and Jolliffe occurred tween party to the agency an that is with the Febru- provided Jolliffe Wahlin the fol- permissible officer is ary Dopson 2003 letter sent to Wah- lowing circumstances: majority improper- lin. The finds Wahlin (1) pur- communication is for ly augmented by providing evidence pre- pose of assistance and advice Dopson’s letter to Jolliffe and the commu- head from a siding officer or nication commu- investiga- as person who has not served providing act of nication because Wahlin’s tor, pro- in the prosecutor, or advocate sup- augmented the letter or Jolliffe with stage. An ceeding preadjudicative or its plemented the evidence violation may advisor evaluate the assistant or Wahlin did in the record but shall not evidence fur- only not nothing augment the evidence diminish, nish, modify augment, because N.D.C.C. does record; (emphasis in the add- as prohibit staff assistants such Wahlin ed). commenting on evi- evaluating to the 2005 draft revision The comments dence, did not but also because Wahlin explain that this section is taken from on the evidence. comment on ex communica- California statute majority argues Miller provide: The comments further 40] tions. communication was many sections address of holds this California “[t]he area, evi- because commented on the problems that arise Wahlin technical, anything or advisory change dence. did not attempt distinguish evidence, Dopson com- presiding comment on the contacts from staff *10 copied on the evidence a letter agency heads.” The drafters of mented officers or pursuant to Miller’s counsel cus- with they disagree. which significant- And Lawrence, ly, tomary practice adopted after that same comment made Dopson in directly a letter forwarded that letter to addressed to Jol- Jolliffe would not, even majority’s under the Dopson inadvertently analysis, liffe because ad- have been ex and Jolliffe would have dressed letter Wahlin instead of been free to discuss it with Wahlin. containing Jolliffe. The Dopson’s letter Therefore, the communication from Wahlin comments on the evidence was which to Jolliffe was not an meant for Jolliffe initially copied communication. procedure Miller’s counsel. Because this practice has been WSI’s standard since WALLE, [¶ 41] GERALD W. VANDE

Lawrence, Miller’s counsel had notice and C.J. respond to the letter as required by Although attorney contends he

had no reason to respond Dopson’s let- Wahlin, my experience

ter to has been that

lawyers shy are not about responding to they

statements of which have notice and