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Suit targets judicial canon

A nonprofit organization that is spearheading efforts to constitutionally ban gay marriage in North Dakota has taken on another cause in the Nov.

A nonprofit organization that is spearheading efforts to constitutionally ban gay marriage in North Dakota has taken on another cause in the Nov. 2 election.

The Bismarck-based North Dakota Family Alliance has filed a federal lawsuit in hopes of abolishing rules that prevent North Dakota's judgeship candidates from expressing their personal views on issues that could reach the courtroom.

The "commit clause" in Canon 5 of the state's Code of Judicial Conduct prohibits judgeship candidates from making statements that could create the appearance of impartiality.

The conduct code, approved by the state Supreme Court, guides the state's judicial elections.

Stella Jeffrey of Fargo and the Family Alliance say Canon 5 prevents voters from making informed decisions.

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They have filed a federal lawsuit in Fargo's federal court, claiming the commit clause violates candidates' rights to free speech.

The Family Alliance and Jeffrey also seek to strike down a constitutional provision that mandates judges recuse themselves from cases if they make statements that call their neutrality into question.

Jeffrey, an employee of the Catholic Diocese in Fargo, said she joined the lawsuit after trying, unsuccessfully in many cases, to get judicial candidates to share their political and judicial philosophies.

Jeffrey said she is not a member of the Family Alliance and joined the suit without consulting the Catholic Diocese.

Defendants in the lawsuit are the North Dakota Judicial Conduct Commission and 26 attorneys who serve on three inquiry committees for the state Bar Association.

The Family Alliance sued late last week, after getting back questionnaires it mailed to all of the state's judicial candidates in July, said Christina Rondeau, the alliance's executive director.

The questionnaires for a 2004 voter's guide asked judges to offer their interpretations of the state constitution as it relates to abortion, prayer in school and gay marriage.

Many of the candidates declined to answer the questions, citing Canon 5, said David Chapman, a Fargo attorney representing Jeffrey and the Family Alliance.

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"The bottom line is you can't expect voters to make informed decisions without knowing what they're voting for," Chapman said. "People have questions and not allowing them to have that information denies them the proper process of election."

Southeast District Judge Ronald Goodman is one of the candidates who declined to fill out the questionnaire.

In a letter, Goodman told the Family Alliance he wouldn't complete the questionnaire even if the state's Judicial Code allowed it.

"I feel that a judicial candidate who would answer your questionnaire compromises his or her service as a judge," Goodman wrote. "A judge is supposed to be fair and impartial and not bring an agenda to the bench.

Patricia Monson, a Fargo attorney, Bar Association inquiry committee member and a defendant in the suit, said the questionnaire is irrelevant.

Judges, she said, are obligated to uphold the state constitution and not rule based on their personal views.

Judges personal views can come into play when there is room for legal interpretation, Jeffrey said. "I am asking for personal opinions because I know full well that they will sit on the bench with prejudices," she said.

In 2002, the U.S. Supreme Court struck down an "announce clause" in Minnesota's Code of Judicial Conduct. Like North Dakota's Canon 5, the announce clause prohibited candidates from announcing their views on legal and political issues.

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It's disputed whether the Supreme Court decision in Republican Party of Minnesota v. White subjects other states' judicial codes to the same ruling, Chapman said.

Goodman, chairman of the state's Judicial Ethics Advisory Committee, sent a letter to judicial candidates in August explaining the White ruling and how it impacts their election bids.

"To summarize, White did not directly address the content of Canon 5 of the North Dakota Code of Judicial Conduct," he wrote. "At least for the upcoming elections, candidates for judicial office should look to Cannon 5 for guidance on conducting their campaigns."

Chapman said he hopes a federal judge in Fargo will issue a ruling nixing Canon 5 before the Nov. 2 election.

If Canon 5 were struck down as unconstitutional, judicial candidates would be free, but not required, to express their legal and political views, he said.

Readers can reach Forum reporter Jeff Zent at (701) 241-5526

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