North Dakota Family Alliance, Inc. v. Bader, No. A3-04-115.
| Decision Date | 21 March 2005 |
| Docket Number | No. A3-04-115. |
| Citation | 361 F.Supp.2d 1021 |
| Parties | NORTH DAKOTA FAMILY ALLIANCE, INC. and Stella Jeffrey, Plaintiffs, v. Marilyn BADER, et al., Defendants. |
| Court | U.S. District Court — District of North Dakota |
David J. Chapman, Chapman Law Office, Fargo, ND, James Bopp, Jr., Thomas J. Marzen, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs.
Tag C. Anderson, Attorney General's Office, Bismarck, ND, for Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION TO DISMISS
On September 29, 2004, the plaintiffs, the North Dakota Family Alliance and Stella Jeffrey, commenced this lawsuit challenging the constitutionality of limitations placed on statements of judicial candidates in North Dakota. The Plaintiffs brought suit for purposes of challenging Canon 5A(3)(d)(i) and (ii) of the North Dakota Code of Judicial Conduct. The Plaintiffs have also challenged the constitutionality of Article 6, Section 11 of the North Dakota Constitution and Canon 3E(1) of the North Dakota Code of Judicial Conduct. The Plaintiffs contend that these provisions are unconstitutional and violate a judicial candidate's First Amendment right to free speech because the provisions prevent judicial candidates from speaking on disputed legal and political issues.
The judicial canon at issue is Canon 5A(3)(d)(i) and (ii) of the North Dakota Code of Judicial Conduct which provides as follows:
A. All Judges and Candidates.
(3) A candidate for a judicial office:
(d) shall not:
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of duties of the office;
(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court;
This canon embodies what is commonly referred to as the "pledges and promises clause" and the "commit clause." The Plaintiffs contend that Canon 5A's "pledges and promises clause" and its "commit clause" are unconstitutional on their face and as applied to the 2004 Voter's Guide Questionnaire for Judicial Candidates.
In addition, the Plaintiffs have challenged the constitutionality of North Dakota's recusal clause contained in Canon 3E(1) which provides as follows:
E. Disqualification
(1) 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 instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of disputed evidentiary facts concerning the proceedings;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it (c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
The individual plaintiff, Stella Jeffrey, is a resident of North Dakota who wishes to receive information from the North Dakota Family Alliance regarding the views of judicial candidates for whom she was eligible to vote in November of 2004. The North Dakota Family Alliance is a non-profit, educational organization. Both Plaintiffs contend that Canons 5A and 3E, as well as Article 6, Section 11 of the North Dakota Constitution, and the Judicial Conduct Commission's enforcement policy, muzzle and chill a judicial candidate's protective free speech by prohibiting candidates from announcing their views on disputed legal and political questions. As a result, the Plaintiffs contend they have been deprived of their First Amendment right to receive and publish that protected speech, as well as their freedom to associate. The Plaintiffs contend that North Dakota's law and policy prohibits protected speech in the same manner as the "announce clause" in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).
The Defendants are individuals sued in their official capacities. They include members of the North Dakota Judicial Conduct Commission, the North Dakota Bar Association Inquiry Committee, and counsel for the North Dakota Judicial Commission. The Plaintiffs served the stated members of the Judicial Conduct Commission in their official capacities on October 11, 2004. It appears the Plaintiffs take the position that members of the North Dakota Bar Association's Inquiry Committee, in their official capacities, are also state actors.
For the reasons discussed below, the Court concludes that the judicial canons which seek to regulate and prohibit statements of candidates for judicial office in North Dakota cannot survive constitutional scrutiny.
The North Dakota Family Alliance is a non-profit educational organization. It sought to collect and publish data regarding judicial candidates' political philosophy and stance on disputed legal and political issues by sending out a 2004 North Dakota Family Alliance Voter's Guide Questionnaire for Judicial Candidates (2004 Voter's Guide Questionnaire) to judicial candidates. See Complaint ¶¶ 15, 17. Many judicial candidates refused to answer the questions on the 2004 Voter's Guide citing the relevant canon of ethics. The 2004 Voter's Guide Questionnaire appears to have been sent to candidates regardless of whether the judicial election was contested. A form letter accompanied the survey and questions were prefaced with the following disclaimer:
North Dakota Family Alliance recognizes that all of your responses are subject to the judicial obligations to follow binding precedence of higher courts and applicable constitutional and statutory provisions, to honor stare decisis and to decide any future case based on the law and facts of that case. Your responses indicate your current view on the legal issues and do not constitute any pledge, promise, or commitment to rule any particular way if the legal issue involved comes before you for decision.
See Complaint, Exhibit B-5.
The survey asked the judicial candidate to indicate whether he or she would agree or disagree with certain undecided propositions of state constitutional law or whether he or she was undecided or otherwise would decline to speculate on the issues. The survey also invited a response on whether a candidate believed a United States Supreme Court decision had been wrongly decided.
In addition, the survey asked the judicial candidates to identify individuals with whom they share a political and judicial philosophy and to rank their judicial philosophy on constitutional interpretation on a scale ranging from being a "strict constitutionalist" to "a living document approach." The survey asked candidates whether they supported, opposed, or were undecided about a judge's display of the Ten Commandments in the courtroom, presumably for some legitimate, secular purpose. Last, the survey asked judicial candidates to identify organizations the candidate may have been affiliated with for the previous ten (10) years. According to the complaint and the attachments, some candidates completely refused to answer the surveys on the proffered basis of Canon 5 and others responded directly to the survey.
In May 2004, prior to the surveys being sent by the North Dakota Family Alliance, the Judicial Ethics Advisory Committee sent a short letter to judicial candidates with an attached earlier letter addressing the United States Supreme Court decision in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) and its impact on Canon 5. In Republican Party of Minnesota v. White, the Supreme Court struck down a portion of Minnesota's Code of Judicial Conduct referred to as the "announce clause." The letter from the Judicial Ethics Advisory Committee explained that the "announce clause" contained in Minnesota's Code of Judicial Conduct was not present in North Dakota's Code of Judicial Conduct. The letter further suggested that judicial candidates should be familiar with the White decision and could request a formal opinion on a specific ethical question.
On July 19, 2004, the North Dakota Family Alliance mailed an explanatory cover letter and a 2004 "Voter's Guide Questionnaire for Judicial Candidates" (2004 Voter's Guide Questionnaire) to all judicial candidates. The questionnaire stated that the questionnaire's deadline was August 4, 2004. The Alliance attempted to obtain responses to a number of questions from judicial candidates so that this information could be announced or otherwise published to North Dakota voters. A copy of the form letter accompanying the survey is attached as Exhibit B-1 to the Complaint (Docket No. 1). The survey followed the form letter and is attached as Exhibit B-2 to the complaint. The survey lists six (6) questions for response followed by a request that the judicial candidate identify his or her membership in a number of organizations as well as the questions requesting the following information 2004 North Dakota...
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