concurring.
I concur in dismissal of this disciplinary action against Judge Wilson. I join in Justice VandeWalle’s opinion that “it stretches the intention” of Rule 60(a) to authorize entry of a corrective order ex parte and without notice. I believe, however, that we should do more to clarify the reading of the rules that apply to this situation. For this purpose, I write separately.
I agree with the other opinions, too, that attorney Carol Ronning Kapsner manipulated Judge Wilson’s language in order to change, to favor her client, an ambiguity in the judge’s direction. What is not explained, though, is that Kapsner’s change was done openly and with notice to adverse counsel.
Judge Wilson entered his findings, conclusions, and order for judgment on January 31, 1989. Attorney Kapsner submitted her proposed judgment, including this manipulation, to attorney McKennett on February 15. Kapsner and McKennett negotiated about several changes. Judge Heen determined that, “[i]n so negotiating, neither McKennett nor his client raised objection or voiced concern with or about” this manipulation by Kapsner. In the end, only a single, minor change in another part of the proposed judgment resulted from the negotiations. McKennett made that change by inserting an amended page in the original judgment that Kapsner had submitted on February 16 to the clerk of court “... directed to the judge’s (sic) attention.” Finally, on February 28, the judgment was signed and docketed by the clerk. This open process of entering the judgment puts the later one-sided change in a different light.
Ex parte means, “[o]n one side only; by or for one party; done for, in behalf of, or on the application of, one party only.” Black’s Law Dictionary 517 (5th ed. 1979). “An order is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only and without notice to or contest by any person adversely interested.” 56 Am.Jur.2d Motions, Rules, and Orders § 33 (1971).
Ex parte communications are those that involve fewer than all. of the parties who are legally entitled to be present during the discussion of any matter. They are barred in order to ensure that “every person who is legally interested in a proceeding [is given the] full right to be heard according to law.”
*111Lubet, Ex parte communications: an issue in judicial conduct, Judicature, Aug-Sept. 1990, at 96 (footnotes omitted). By definition, ex parte judicial action is partial, not impartial.
Impartial judicial action is the norm.
Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge “may be incomplete or inaccurate, the problem can be incorrectly stated.” At the very least, participation in ex parte communications will expose the judge to one sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communication is an invitation to improper influence if not outright corruption.
Id. at 96-97 (footnotes omitted). For good reasons, ex parte judicial action is generally forbidden.
The Rules of Judicial Conduct command a judge to “neither initiate nor consider ex parte or other communications concerning the substance of a pending or impending proceeding,” unless “authorized by law.” 1 NDRJC 3(a)(4). Judicial action at the instance of one party and without notice or opportunity for hearing to the other party is repugnant to fundamental principles of justice and due process. McWethy v. McWethy, 366 N.W.2d 796 (N.D.1985). A judge is expected to act impartially. NDRJC 3. A judge is expected to “avoid impropriety and the appearance of impro-priety....” NDRJC 2. Except where plainly authorized by law, ex parte judicial action will appear to the public to be improper.
Correspondingly, ex parte communications by a lawyer with a judge about a pending matter are also restrained by rules. A lawyer is enjoined to “not ... seek to influence a judge ... by means prohibited by law including ex parte communications concerning a pending or impending proceeding.” North Dakota Rules of Professional Conduct 3.5. Comments to those Rules emphasize the lawyer’s obligation:
Many forms of improper influence upon a tribunal are prescribed by criminal law. Others are specified in the North Dakota Rules of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.
Rules of Professional Conduct, Comment to Rule 3.5. Another comment explains:
[I]n an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The tribunal has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.
Rules of Professional Conduct, Comment to Rule 3.3 (my emphasis). A one-sided telephone call to a judge by a lawyer about a pending matter is improper unless authorized by law.
Judge Heen believed that the wording of this judgment was “the result of clerical mistake” and “was subject to ex parte correction by the Court’s own initiative or by that of McKennett.” The Judicial Conduct Commission determined otherwise:
XI.
The change that was made in the Judgment was not a clerical mistake. It was *112not made on Judge Wilson’s own initiative or upon motion but was a result of ex parte communication with Attorney McKennett....
XII.
The position of Judge Wilson that the ex parte communication was acceptable as there was no pending proceeding or justified by exigent circumstances is rejected.
These contrasting positions stem from loose and imprecise application of NDRCivP 60(a) in past decisions by this court. See Gruebele v. Gruebele, 338 N.W.2d 805 (N.D.1983) and Enderlin Farmers’ Store Co. v. Witliff, 56 N.D. 380, 217 N.W. 537 (1928). I agree with Justice VandeWalle that “we do lawyers and judges no favor” to perpetuate the impression “that a variety of changes in judgments are possible without hearing or notice to the other party.” As Volk v. Volk, 435 N.W.2d 690 (N.D.1989) and Production Credit Association of Mandan v. Obrigewitch, 443 N.W.2d 304 (N.D.1989) demonstrate, any change in a judgment can be made after notice and opportunity for hearing, as easily as before.
Does NDRCivP 60(a) authorize ex parte communications or ex parte judicial actions? Certainly not expressly. No such authorization should be implied.
NDRCivP 60(a) does not authorize either ex parte communications or judicial actions. It only authorizes correction of clerical mistakes and like errors “by the court ... on its own initiative or on the motion of any party and after such notice, if any, as the court orders.” When a change is brought about by a one-sided communication from a party, it is not the court’s own initiative; it is ex parte. This is what the Rules of Judicial Conduct and Rules of Professional Conduct bar.
Nor should the language of Rule 60(a), “after such notice, if any, as the court orders,” be taken as implicitly licensing ex parte judicial action. It does not, although it may permit judicial action without a hearing in a proper case. Compare the plain, but limited, authorization of ex parte judicial action in NDCC 32-06-07:
A restraining order, or an order to show cause in the nature of a restraining order, will not be issued ex parte or without a hearing, unless it shall be shown in the moving papers that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved.
Rule 60(a) contains no comparable authorization for ex parte judicial action.
Some of the confusion in past decisions of this court seems to stem from misunderstandings about the scope of Rule 60(a). Only minor errors are envisioned by Rule 60(a). 6A Moore’s Federal Practice ¶! 60.05 (1989). In exercising the power to correct clerical mistakes and oversights, courts should confine the power to those that may legitimately be said to be clerical, and exercise it only upon a clear showing. Id. at ¶ 60.06(3). “Where the error is not apparent on the face of the record, and evidence must be heard to ascertain whether or not there is in fact a clerical error, then the parties should be given notice and an opportunity to be heard.” Id. at ¶ 60.07. Rule 60(a) is not the kind of rule that should be “stretched,” like past decisions of this court have done.
Because of the confusion in our past decisions, I agree that Judge Wilson did not willfully violate the Rules of Judicial Conduct. But, I believe that the rules against ex parte communications and judicial actions in a pending matter were violated. After today’s opinions, no judge or lawyer in North Dakota should be able to fairly claim a misunderstanding of the rules of conduct.
A postscript to Judge Heen’s findings in this case says it well:
To engage in such informality in a pending action or proceeding can lead only to an impression of prejudice and bias and distress on the part of a party, absent or not, in this instance Martha and Attorney Kapsner, both sincerely believing Martha’s rights and security were trampled and violated by occurrences in this case.
*113This should not happen again in North Dakota.
.
Certain matters may be heard ex parte, as authorized by law. In civil cases these include emergency motions, such as requests for temporary restraining orders. In criminal cases, applications for search warrants and grand jury proceedings typically take place without the presence of the defendant. Ex parte judgments may be entered against parties who are in default, and, of course, a court may generally proceed where parties have had notice, but have failed to appear.
Lubet, Ex parte communications: an issue in judicial conduct, Judicature, Aug.-Sept. 1990, at 96, n. 2.