Order of Adoption

CANON 5

A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN

FROM INAPPROPRIATE POLITICAL ACTIVITY

A. All Judges and Candidates.

(1) Except as authorized in Sections 5B(2)and 5C(1), a judge or candidate* for election or appointment to judicial office shall not:

(a) act as a leader or hold an office in a political organization* or be a delegate to a political convention;

(b) publicly endorse or publicly oppose another candidate for public office;

(c) make speeches on behalf of a political organization*;

(d) seek or accept an endorsement or letter of support from a political ~~party~~ organization*;

(e) solicit funds for, pay an assessment to or make a contribution to a political organization* or candidate; or

(f) except as provided by Section 5C(1)(a), purchase tickets for ~~and~~ or attend ~~political~~ gatherings or other events sponsored by a political organization* or a candidate for legislative or executive office.

Commentary:

[1] A judge or candidate for judicial office retains the right to participate in the political process as a voter. However, the state has a compelling interest in maintaining the independence, integrity, and impartiality of the judiciary, thus enhancing public confidence in the justice system. In furtherance of this interest, judges and candidates for judicial office must be kept free, and must appear to be free, from undue political influence and inappropriate political pressure.

[2] The independence of the judiciary is necessary to ensure the rule of law. Judicial independence is intended to guarantee much more than impartiality toward litigants. The judiciary acts as a check on the other branches of government and protects rights enumerated in our Constitution. An independent judiciary is one that is not dominated by or dependent upon the other two branches of government, is not unduly entangled in the political machinery of the other two branches, and is not actuated in its decision-making by the same political policy considerations and interests as the other branches. Judicial independence and the separation of powers are recognized by several provisions of the North Dakota Constitution, specifically that the legislative power is vested in the Senate and House of Representatives, N.D. Const. art. III, §1; that the executive power is vested in the governor, N.D. Const. art. V, §1; that the judicial power is vested in the unified court system headed by the supreme court, N.D. Const. art. VI, §1; that the legislative, executive, and judicial branches are co-equal branches of government, N.D. Const. art. XI, §26; that a member of the judiciary may not hold a non-judicial office nor shall any duties be imposed upon him or her which are not judicial, N.D. Const. art. VI, §10; and that a judge's or justice's compensation may not be diminished by the other branches during that judge's or justice's term of office, N.D. Const. art. VI, §§7 and 9.

[3] Public confidence in the independence and impartiality of the judiciary is eroded if judges or candidates for judicial office are perceived to be subject to political influence. Accordingly, they are prohibited by Section 5A(1)(a) from assuming a leadership role in a political organization*.

[4] Sections 5A(1)(b) and 5A(1)(c) prohibit judges and candidates for judicial office from making speeches on behalf of political organizations* or publicly endorsing or opposing candidates for public office, in order to prevent them from misusing the prestige of judicial office to advance the interests of others. See, Canon 2B. These canons do not prohibit candidates from campaigning on their own behalf or from endorsing or opposing candidates for a position on the same court for which they are running.

[5] Members of the families of judges or candidates for judicial office are free to engage in political activity of their own, including running for political office. The prohibition in Section 5A(1)(b) against publicly endorsing candidates for public office, however, does not include an exception for family members. Accordingly, a judge or candidate for judicial office must not become involved in or publicly associated with a family member's political activity or campaign for public office. To avoid public misunderstanding, moreover, a judge or candidate for judicial office must take, and must require the family member to take, reasonable steps to avoid any implication that the judge or candidate endorses the family member's candidacy or other political activity.

[6] Sitting judges and candidates for judicial office retain the right to participate in the political process as voters in elections.

~~[2]~~ [7] Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public.

~~[3]~~ [8] Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not "an office in a political organization."

~~[4]~~ [9] ~~Section~~ Sections 5A(1)(b) ~~does~~ and 5A(1)(c) do not prohibit a judge or judicial candidate from privately expressing his or her views on judicial candidates or other candidates for public office.

~~[5] A candidate does not publicly endorse another candidate for public office by having that candidate's name on the same ticket.~~

(2) A judge shall resign from judicial office upon becoming a candidate* for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention.

(3) A candidate* for a judicial office:

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality*, integrity, and independence of the judiciary, and shall encourage members of the candidate's family* to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;

Commentary:

[1] Although a judicial candidate must encourage members of his or her family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate, family members are free to participate in any other political activity.

(b) shall prohibit officials who serve at the pleasure of the candidate,* and shall discourage employees and other officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under this Canon;

(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly* permit any other person to do for the candidate* what the candidate is prohibited from doing under this Canon;

(d) shall not:

(i) with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office; or

(ii) knowingly* misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent;

(e) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Section 5A(3)(d).

Commentary:

[1] Section 5A(3)(d) prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of his or her personal views. See also Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not prohibit a candidate from making pledges or promises respecting improvements in court administration. Nor does this Section prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. This Section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment. See also Rule 8.2 of the North Dakota Rules of Professional Conduct.

[2] The compelling interests of the state supporting the restrictions imposed under Section 5A(3)(d) are recognized and supported by several provisions of the North Dakota Constitution, specifically with respect to ensuring the citizens of this state due process of law, N.D. Const. art. I, §§ 9 and 12; equal protection of the law, N.D. Const. art. I, § 21; open courts, N.D. Const. art. I, § 9; and justice without sale, denial, or delay, N.D. Const. art. I, § 9. Further, because of circumstances found in this state, it is necessary to protect those interests by placing the least restrictive limits on the free speech of candidates* and judges possible. North Dakota is a geographically large state with a largely rural, sparse population and a small number of appellate judges and general jurisdiction trial judges. North Dakota also has a very liberal statute providing for a change of judge upon demand, N.D. Cent. Code § 29-15-21. Within a relative short period of time, each of these judges will have been subject to election. Without Section 5A(3)(d), it is reasonably foreseeable that on a particular issue every judge in the state could have pledged, promised, or made a commitment that may be considered inconsistent with the impartial* performance of the judge's adjudicative duties. The limitations imposed under Section 5A(3)(d) are necessary as disqualification under Canon 3E alone may not sufficiently protect the interests described in this comment. See also the limitations imposed under Canon 3B(10).

[3] The state also has a compelling interest in maintaining the integrity, independence, and impartiality of the judiciary, thus enhancing public confidence in the justice system. In furtherance of this interest, judges and candidates for judicial office should be free from political influence, taking into account the methods of selecting judges and the constitutional provisions governing free speech and expressive association. In order to advance the state's compelling interests, Canon 5A imposes restrictions on the political and campaign activities of all sitting judges and all candidates for judicial office. In all events, a candidate for judicial office should maintain the dignity appropriate to judicial office.

[4] A judge's obligation to avoid prejudgment is well established. Under the First Amendment and in light of the voters' right to have information about an elective candidate's views, judicial ethics provisions may not prohibit judicial candidates from announcing their views on disputed legal and political questions. Canon 5A(3)(d), which applies the prohibitions of Canon 3B(10) to all candidates for judicial office, does not proscribe a candidate's public expression of personal views on disputed issues. To ensure that voters understand a judge's duty to uphold the Constitution and laws of this state where the law differs from the candidate's personal belief, however, candidates are encouraged to emphasize their duty to uphold the law regardless of their personal views.

[5] Some speech restrictions are indispensable to maintaining the integrity, impartiality, and independence of the judiciary. The state has a compelling interest in enforcing these restrictions. Thus, under this Canon it remains improper for a judicial candidate to make pledges, promises, or commitments regarding specific classes of cases, specific litigants or classes of litigants, or specific propositions of law that would reasonably lead to the conclusion that the candidate has prejudged a decision or ruling in cases that would fall within the scope of the pledge, promise, or commitment. To fall within the proscription of this Canon the statement by the candidate must pertain to matters likely to come before the court on which the candidate would serve, if elected. Statements by a candidate that would have this effect are inconsistent with the obligation of all judges to perform impartially the adjudicative duties of the office.

[6] Candidates for judicial office often receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations seeking to learn the candidates' views on disputed or controversial legal or political issues. Section 5A(3)(d) does not generally prohibit candidates from responding to this kind of inquiry, but candidates should proceed with caution if they choose to respond. Depending on the wording of the questions and the format provided for answering, a candidate's response might constitute pledges, promises, or commitments to perform the adjudicative duties of the office other than in an impartial way. In order to avoid violating Section 5A(3)(d), therefore, candidates who choose to respond should make clear their commitment to keeping an open mind while on the bench, regardless of their own personal views.

[7] The U.S. Court of Appeals for the 8^th Circuit, in Republican Party of Minnesota v. White, 416 F.3d 738 (8^th Cir. 2005), found unconstitutional certain similar Canon 5 provisions in the Minnesota Code of Judicial Conduct. Petition for certiorari is pending before the U.S. Supreme Court.

B. Candidates Seeking Appointment to Judicial or Other Governmental Office.

(1) A candidate* for appointment to judicial office or a judge seeking non-judicial governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support his or her candidacy.

(2) A candidate* for appointment to judicial office or a judge seeking non-judicial governmental office shall not engage in any political activity to secure the appointment except that such persons may:

(a) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates;

(b) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and

(c) provide to those specified in Sections 5B(2)(a) and 5B(2)(b) information as to the person's qualifications for the office.

(d) contact lawyers and others for expressions of support to be submitted to the appointing authority identified in Section 5B(2)(a) and may distribute personal and professional information in the form of resumes that describe the person's qualifications for office.

Commentary:

[1] Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or appointment to another judicial office or other governmental office may apply for the appointment and seek appropriate support.

C. Judges and Candidates Subject to Public Election.

(1) A judge or a candidate* subject to public election* may, except as prohibited by law*:

(a) at any time, publicly speak on behalf of his or her own candidacy or on behalf of measures to improve the law, the legal system, or the administration of justice, whether or not at a gathering sponsored by a political organization;

(b) when a candidate for election

(i) appear in newspaper, television and other media advertisements supporting his or her candidacy;

(ii) distribute pamphlets and other promotional campaign literature supporting his or her candidacy; or

(iii) publicly endorse or publicly oppose other candidates for the same judicial office in a public election in which the judge or judicial candidate is running.

(2) A candidate* shall not directly and personally solicit or accept campaign contributions or directly and personally solicit publicly stated support. A candidate may~~, however,~~ establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for his or her candidacy. While a candidate may not directly and personally solicit contributions or public statements of support, the candidate may orally solicit contributions or publicly stated support in front of large groups or organizations consisting, for example, of audiences of 25 or more people. The candidate's actual signature or a reproduction of the signature may appear on letters or other printed or electronic materials distributed by the committee which solicit contributions or publicly stated support from individuals or large groups. Solicitations bearing the candidate's signature must direct contributions to be sent to the address of the candidate's campaign committee and not that of the candidate. The candidate must take reasonable measures to ensure the names and responses, or lack thereof, of the recipients of solicitations for contributions will not be disclosed to the candidate. ~~Such~~ Campaign committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate's committees may solicit contributions and public support for the candidate's campaign no earlier than one year before an election and no later than 90 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

Commentary:

[1] Section 5C(2) seeks to insulate candidates for judicial office from personal contacts with contributors or public supporters that may lead to allegations of bias or lack of impartiality if the contributor or supporter should later appear before the judge. As a result, candidates are prohibited from directly and personally soliciting contributions or publicly stated support. This limitation is intended to minimize the occurrence of direct personal contacts with individual contributors or public supporters. However, because the activity is more removed and less likely to result in specific knowledge about any individual contributions or expressions of public support, a candidate is permitted to affix the candidate's signature, or a reproduction of the signature, to printed or electronic material soliciting contributions or support. While Section 5C(2) allows a candidate to solicit contributions or publicly stated support from large groups or organizations under certain circumstances, Section 5A(1)(d) continues to prohibit a candidate from seeking or accepting an endorsement or letter of support from a political organization. In soliciting contributions or publicly stated support from large groups or organizations, a candidate should limit such activity to audiences of 25 or more people. Solicitation activity involving audiences lesser in number increases the possibility of direct personal contact with individual attendees and risks allegations of bias or lack of impartiality if the attendee should later appear before the judge. Section 5C(2) permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and reasonable financial contributions. At the start of the campaign, the candidate must instruct his or her campaign committees to solicit or accept only contributions that are reasonable under the circumstances. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may be relevant to disqualification under Section 3E.

[2] Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible.

[3] Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of this Code, from responding to a request for information from any organization.

D. Incumbent Judges. A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law,* the legal system or the administration of justice, or (iii) as expressly authorized by law.

Commentary:

[1] Neither Section 5D nor any other section of the Code prohibits a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. With respect to a judge's activity on behalf of measures to improve the law, the legal system and the administration of justice, see Commentary to Section 4B and Section 4C(1) and its Commentary.

E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates*. A successful candidate, whether or not an incumbent, is subject to judicial discipline for the candidate's campaign conduct; an unsuccessful candidate who is a lawyer is subject to lawyer discipline for the candidate's campaign conduct. A lawyer who is a candidate for judicial office is subject to Rule 8.2(b) of the North Dakota Rules of Professional Conduct.

*See Terminology, "impartiality" or "impartial"

*See Terminology, "law."

*See Terminology, "candidate."

*See Terminology, "political organization."

*See Terminology, "member of the candidate's family."

*See Terminology, "knowingly."

*See Terminology, "public election."