ETHICS ADVISORY COMMITTEE
STATE OF NORTH DAKOTA
Whether a judge should voluntarily remove himself or herself from a proceeding when one
of the parties to the proceeding is represented by an attorney who had an ethical complaint filed
against him by the judge's spouse.
There should be a period of time during which the judge, whose spouse is an attorney filing
an ethical complaint against a local attorney, recuses himself from any proceeding in which the
attorney is appearing, whether or not there is actual bias or prejudice on the part of the judge. If the
judge determines that there is actual partiality due to bias or prejudice, the recusal should last as long
as the bias exists. If there is no actual bias, and the judge determines that his or her impartiality
might reasonably be questioned, the judge should recuse himself for a reasonable period of time.
The decision as to the period of recusal should be determined by the judge but should not exceed one
Canon 3(E)(1)(a) of the North Dakota Code of Judicial Conduct specifies that:The commentary to Section 3(E) states that "a judge is disqualified whenever the judge's
impartiality might reasonably be questioned, regardless whether any of the specific rules in
Section 3(E)(1) apply." As the commentary bears out, both the Canon and its subsections are
"intended to impose binding obligations" upon the judge. Therefore, a judge could be disqualified
even if the judge has no personal bias or prejudice against the party's lawyer provided impartiality
might reasonably be questioned.
"A judge shall disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned including but not limited to
(a) the judge has a personal bias or prejudice concerning the party or a
Canon 2 of the North Dakota Code of Judicial Conduct specifies that "a judge shall avoid
impropriety and the appearance of impropriety." The commentary to Canon 2 states that "the test
for appearance of impropriety is whether the conduct would create in reasonable minds a perception
that the judge's ability to carry out judicial responsibilities with integrity, impartiality and
competence is impaired."
This committee previously cited the North Dakota Supreme Court in Farm Credit Bank of
St. Paul v. Brakke, 512 NW 2d 718 (ND 1994), and Sargent County Bank v. Wentworth, 500 NW
2d 862 (ND 1993) in analyzing the appearance of impartiality. The North Dakota Supreme Court,
in speaking to the disqualification of a judge where impartiality might reasonably be questioned,
noted that recusal is ultimately determined on the basis of whether a reasonable person could
reasonably question the judge's impartiality and stated that "the appearance of partiality test is one
of reasonableness". See Farm Credit Bank at page 721. The Supreme Court had earlier concluded
that "our primary concern is the preservation of public respect and confidence in the integrity of the
judicial system, which 'can only be maintained if justice satisfies the appearance of justice'." See
Sargent County Bank at page 877.
Previous decisions of this committee have recognized that evidence of actual partiality or bias
is not required, but even the perception of partiality must result in disqualification in order to
promote judicial integrity. This committee has also determined that reasonable persons might think
that the bias of the complaining attorney's spouse would be shared by the judge such that the
situation would fit within the parameters of Canon 3.
In light of the burden of keeping up the appearance as well as the reality of impartiality,
Canon 3 mandates that the judge in this situation disqualify himself or herself. ND Code of Judicial
Conduct Section 3(E)(1)(a). The enmity of the spouse might reasonably be assumed to be shared
by the judge, even if in fact it is not. Non-recusal under these circumstance would lead to reasonable
questions as to the judge's impartiality. In Farm Credit Bank at page 721, the Court stated that "it
has been said that judges should err on the side of caution and always disqualify themselves in cases
raising 'close questions'." It seems clear that the judge should make the determination as to when
and how long to recuse. However, the committee determined that it was likely that a year after
disposition of the ethical complaint, reasonable persons would cease to question the impartiality of
the judge. Recognizing the need for judicial efficiency and the burden placed on the judiciary, the
committee felt that the judge should make the decision as to the period of time of recusal not to
exceed one year.
The committee also briefly analyzed whether reasonable questions of impartiality or
impropriety arise when an associate of the accused lawyer appears before the judge. In this situation,
the reasonable person might be carrying the imputation of animosity too far to suspect that the judge
has animosity not only toward the accused lawyer but also toward associates of that lawyer. As with
the application of most rules, the line must be drawn somewhere. The committee concluded that
ending disqualification with the accused lawyer would be the common sense approach.
It appears mandatory that a judge, whose spouse is an attorney filing an ethical complaint to
the State Bar Board against a local attorney, recuse himself or herself from hearing cases in which
that attorney is appearing. Reasonable persons might believe that animosity of the complaining
lawyer's spouse is shared by the judge. To preserve the public's interest in both the appearance and
the reality of the judge's impartiality, recusal is recommended for a reasonable time considering the
circumstances for a period not to exceed one year.