A North Dakota federal court held yesterday that two canons based on
the American Bar Association’s 1990 Model Code of Judicial Conduct
were unconstitutional. The court held that provisions of North
Dakota’s Code that forbid judicial candidates from making “pledges
or promises” of conduct in office or to “commit or appear to commit”
candidates to decide a case violate the First Amendment because they
forbid judicial candidates from announcing their views on disputed
legal and political issues.
The North Dakota Family Alliance had sent a survey to candidates
for judicial office in the November 2004 election, requesting that
they state their views on policies and court decisions related to
such matters as same-sex relationships and abortion. Several of the
judicial candidates declined to do so, invoking opinions from the
North Dakota Judicial Ethics Advisory Board that implied that
judicial candidates could be punished under “pledge or promise” or
“commit or appear to commit” provisions of the North Dakota Code of
Judicial Conduct for responding to questions posed in such surveys.
The Family Alliance then brought suit against members of the North
Dakota Judicial Advisory Board, North Dakota Bar Association Inquiry
Committee, and counsel for the North Dakota Judicial Commission
charging that the North Dakota “pledge or promise” and “commit”
provisions were unconstitutional because they were used to forbid
the same speech that the Minnesota “announce” clause had
prohibited. The suit was based on a 2002 U.S. Supreme Court
decision, which held unconstitutional a Minnesota rule that
prohibited judicial candidates from “announcing their views on
disputed legal or political issues.” Chief Judge Daniel L. Hovland
of the Federal District Court of North Dakota yesterday granted
summary judgment against these provisions. Order Granting
Plaintiffs’ Motion for Summary Judgment and Denying Defendants’
Motion to Dismiss, North Dakota Family Alliance, Inc and Stella
Jeffrey v. Bader, et al., No. A3-04-115 (D. N.D., March 21, 2005).
According to James Bopp, Jr., lead counsel for the plaintiffs, the
North Dakota rules “contradict the U.S. Supreme Court’s decision,
which clearly stated that judicial candidates have a right to
respond to surveys like this and that voters have a right to hear
what they have to say.” Bopp, who argued the case challenging the
Minnesota judicial rule struck down by the U.S. Supreme Court in
Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated
that North Dakota’s rules and policy were being interpreted to
“cover the same unconstitutional ground” as Minnesota’s rule that
prohibited judicial candidates from announcing their views had
done.
“The North Dakota decision underscores the broad scope of the White
decision,” said Bopp. “It doesn’t just apply to rules that
specifically forbid judicial candidates from announcing their views,
but to any rule that forbids judicial candidates from expressing
their opinions.”
The district court agreed, stating that the “First Amendment
guarantees voters the right to obtain the information they desire,
and to decide what information may be relevant in determining whom
to elect to the bench.” According to the court, “because North
Dakota has chosen to select its judges by popular election, the
State may not impermissibly restrict the constitutionally-protected
speech of judicial candidates.” The court did, however, uphold
provisions of North Dakota’s law requiring judges to recuse
themselves from proceedings in which the judge’s impartiality “might
reasonably be questioned.”
James Bopp, Jr. has a national federal and state election law
practice. He is General Counsel for the James Madison Center for
Free Speech and Co-Chairman of the Election Law Subcommittee of the
Federalist Society.