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 was the judge's political opponent in a
prior judicial race, and if removal is required, for what period of time is the judge disqualified.
There should be some period during which the judge recuses himself from any proceeding in which
a former opponent for judicial office serves as an attorney, whether or not there is actual bias or
prejudice on the part of the judge. If in fact the judge considers 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, the
length of the recusal period is governed by what is a reasonable time for the public perception to
conclude that there is no bias. The decision as to the period of recusal should be determined by the
Canon 3(E)(1)(a) of the North Dakota Code of Judicial Conduct specifies that
"A judge shall disqualify himself or herself in an proceeding in which the
judge's impartiality might reasonably be questioned including but not limited
to instances where:
(a) the judge has a personal bias or prejudice concerning the party
or a party's lawyer . . .."
This rule addresses itself both to actual bias or lack of impartiality and the appearance of bias or lack
of impartiality. This is indicated by the commentary to Canon 3(E) which states, "Under this Rule,
a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless
of whether any of the specific rules in Section 3(E)(1) apply."
The North Dakota Code of Judicial Conduct became effective January 1, 1994. There has been no
North Dakota Supreme Court decision interpreting this new Canon. The present Code was preceded
by the Rules of Judicial Conduct. Section 3(C)(1)(a) of those Rules of Judicial Conduct contained
language very similar to that contained in the Code of Judicial Conduct, Canon 3(E)(1), except for
the fact that it applied only to a "party" and not a "party's lawyer." That rule was examined by the
North Dakota Supreme Court in Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718 (N.D.
1994) where the court, in speaking to the disqualification of a judge where impartiality might
reasonably be questioned, recognized that a decision as to recusal is 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." The Supreme Court had earlier, in examining
the Rules of Judicial Conduct (the rules effective up to January 1, 1994) come to the same
conclusion and pointed out 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'." Sargent County Bank v. Wentworth, 500 N.W.2d 862 (N.D. 1993)
(quoting Baier v. Hampton, 440 N.W.2d 712 (N.D. 1989).
It is therefore clear that where the issue relates to a party before the judge, evidence of actual
partiality or bias is not required, but in such a case the perception of partiality must result in
disqualification in order to promote judicial integrity, even though there be no actual bias on the part
of the judge.
The issue of disqualification where bias might arise out of the fact that a party's attorney was an
opponent in a prior judicial race has been addressed at any length by only one judicial ethics
committee that the Committee was able to find. The Judicial Inquiry Commission of the State of
Alabama, on August 27, 1984, rendered an opinion which recognized that if facts exist arising out
of the campaign, "which cause the judge to harbor a personal bias or prejudice towards the clients
of the attorney because of his representation, or if other facts or circumstances exist which cause the
judge's impartiality to be reasonably questioned, then the judge may be disqualified." In that opinion,
the Judicial Inquiry Commission recognized that the canons are designed for the purpose of
preventing not only partiality but the appearance of partiality.
The Committee concludes that there is at least an appearance of impartiality when a former opponent
is an attorney in a proceeding before an incumbent judge, and that the period of the required recusal
depends upon what period is determined to be a reasonable time considering the circumstances.
It seems clear that the judge should make the determination as to when and how long to recuse. In
the Farm Credit Bank case, the court recognized that "although it has been said that judges should
err on the side of caution and always disqualify themselves in cases raising 'close questions,' recusal
is not required in response to spurious or vague charges of partiality," and the court went on to
recognize the possibility of claims of partiality being used as a vehicle for such agendas as judge-shopping and the like. Farm Credit Bank of St. Paul v. Brakke supra, (citations omitted).
The Committee was also cognizant of the fact that, in any event, the attorney is left with recourse
in that he or she can file a demand for change of judge pursuant to §29-15-21, N. D. Cent. Code.