(concurring specially).
I agree with the disposition made in the opinion authored by Chief Justice Erickstad but wish to give additional reasons for agreeing, which reasons are set out later herein.
In State v. Rueb, 249 N.W.2d 506 (N.D.1976), we said:
“The adversary system is a part of our judicial system and generally all proceedings employ or resort to this system, except for ex parte proceedings. Our Constitution provides for public trials and the public’s right to know has becpme en-grafted on our system of government by appropriate laws. The star chamber proceedings have never been favored under our judicial system. The State’s Attorney represents the public. He was entitled to a notice.
“In addition to the specific requirements of the Rules, we are convinced that it is for the protection and to the benefit of the sentencing judge to receive information and argument from the State’s Attorney whether or not a sentence should be reduced. This is a safety measure that the judge should insist upon even if the Rules did not require this.
“By giving such notice the court will have the benefit of the two sides and will also eliminate any unwarranted criticism of the judicial process. It has been stated that it is not sufficient that justice be done but that justice must also appear to be done. This would give recognition to this philosophic concept.
“Because Rule 35, NDRCrimP, has not been previously construed by our court or by other jurisdictions in our general area, and the conclusions we reached herein are not obvious from the mere reading of Rule 35, we deem it inappropriate to apply our conclusions to the instant case, but will require in all cases hereafter that these procedures as outlined above, be followed.”
*346The concern we expressed in Rueb became a reality later as evidenced in Judicial Qualifications Commission v. C. James Cieminski, 270 N.W.2d 321, wherein a charge was leveled against the Judge accusing him of bargaining regarding five days of a sentence on a criminal contempt charge arising out of an ex parte contact by Goeller’s attorney without giving notice to the State’s Attorney. The charge was made by Goeller in a disciplinary proceeding. In this instance Goeller, according to her representation made to this court in oral argument, personally contacted the Judge and asked him to reduce the sentence without giving notice to the State’s Attorney. In this respect I find it reprehensible on the part of Goeller to make this type of contact knowing full well the consequences that resulted' from another contact by her attorney at a previous occasion in a different case. These personal approaches should not be condoned. In this instance the greater share of the blame must be placed on the Judge. Under the principles of law announced in Rueb he should have given notice to the State’s Attorney upon being approached. But the Judge in question is no longer in office and for this reason it is difficult to have the record reconstructed or have the matter remanded to him to correct the faulty proceedings.
The record in this case, or rather the nonexistence of a record (not even an affidavit from either party as to what happened) is a matter I cannot overlook. When this court acts as an appellate court it is the record upon which the review is made. Here there was no record of any consequence. In dismissing the appeal, I would have given additional reasons that there was no record and the appeal was untimely under the circumstances.