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McKenzie Electric Coop., Inc., Petitioner v. The Honorable Daniel S. El-Dweek, Judge of the District Court, Northwest Judicial District, The Honorable Kirsten M. Sjue, Acting Presiding Judge, Northwest Judicial District; Basin Electric Power Cooperative; Upper Missouri G&T Electric Cooperative Inc.; and Mountrail-Williams Electric Cooperative, Respondents
ORDER
[¶1] ORDERED, that pages 6, 15, and 16 of the opinion filed in this case on November 21, 2024, be deleted and that pages 6, 15, and 16 filed this day be substituted.
[¶2] The Supreme Court of the State of North Dakota convened with the Honorable Jon J. Jensen, Chief Justice, and the Honorable Daniel J. Crothers, the Honorable Lisa Fair McEvers, the Honorable Jerod E. Tufte, and the Honorable Douglas A. Bahr, Justices, directing the Clerk of the Supreme Court to enter the above order.
Petra H. Mandigo Hulm Clerk North Dakota Supreme Court
[¶15] On September 5, 2024, Basin and Upper Missouri made a joint motion for recusal “[p]ursuant to the North Dakota Code of Judicial Conduct Canon 2.11[.]” In their brief, supporting the motion they argued the judge's cooperative membership created “a direct financial stake in the outcome of this case, and that financial interest creates a reasonable question as to both your Honor's impartiality aid the appearance of impropriety.” In a September 9, 2024 filing Basin and Upper Missouri argued they did not waive disqualification by not making a motion after the July 9, 2020 proceeding. At the same time, they acknowledged that they learned in January 2023 that any recovery by McKenzie Electric would go to end user-members, and in June 2023 that McKenzie Electric was seeking between $479 and $510 million. From these numbers the Respondents estimated the judge could receive from $4,704 to $5,427 if McKenzie Electric prevails.
[¶16] Mountrail-Williams joined the motion to recuse on September 9, 2024. It argued the judge had a “financial interest” in the litigation. It also acknowledged it knew the size of McKenzie Electric's claim during 2023. Therefore, as early as January 2023, but no later than release of the expert's report in June 2023, all Respondents knew of, and took no action on, the judge's alleged economic interest in the litigation.
[¶17] On September 10, 2024, a hearing was set for a number of pending motions, including for change of trial venue because of potential juror membership in McKenzie Electric. The judge determined the judicial disqualification motion was a threshold matter. At the hearing the judge raised the question whether the need for his disqualification would be obviated if he disclaimed any interest in McKenzie Electric's potential recovery. Basin and Upper Missouri argued North Dakota law does not permit disclaimer and, therefore, disqualification was not necessary notwithstanding the judge's suggestion he could divert himself of any pecuniary interest in the litigation.
[¶18] On September 24, 2024, the judge granted the motion to disqualify, stating:
The integrity of the justice system demands that the undersigned recuses himself from this case solely because of the mere appearance of impropriety. Even though the proponents
B
Judge's Impartiality Might Reasonably Be Questioned
[¶40] The Respondents also argued the judge was disqualified because his “financial interest creates a reasonable question as to both your Honor's impartiality and the appearance of impropriety.” While the words used by McKenzie Electric are not those in Rule 2.11, the district court correctly read them as a claim that “the judge's impartiality might reasonably be questioned.” N.D. Code Jud. Conduct 2.11(A).
[¶41] “Rule 2.11(A) is a catchall provision mandating disqualification whenever a judge's impartially ‘might reasonably be questioned.’ A party may seek a judge's disqualification under this general provision when the circumstances do not altogether fit into one of Rule 2.11(A)’s specifically delineated subsections or when the situation clearly rails outside one of those specified scenarios.” Garwin et al., Annotated Model Code of judicial Conduct, at 251 (citing Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge's Impartiality “Might Reasonably Be Questioned,” 14 Geo. J. Legal Ethics 55 (2000)).
[¶42] The test for when a judge's impartiality might be questioned is one of reasonableness—which is objective, Jacobson, 2008 ND 73, ¶ 35. Under this objective test, the inquiry is whether the judge would be able to carry out her judicial responsibilities with the required degree of detachment. Flamm, Judicial Disqualification, Recusal and Disqualification of Judges, at 278 (3d ed. 2017) (footnotes omitted). Otherwise stated, “A judge is expected to recuse herself whenever her impartiality might reasonably be questioned by an objective observer, or when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness.” Id.; Datz v. Dosch, 2014 ND 102, ¶ 16, 846 N.W.2d 724 (“The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or Vague charges of impartiality.”).
[¶43] “At common law one thing and one thing alone was deemed to preclude a judge from presiding over a case: having a pecuniary interest in it.” Flamm, Judicial Disqualification, Recusal and Disqualification of Judges, at 317 (footnote omitted). The ABA Model Code of Judicial Conduct has expanded the grounds, now requiring disqualification when a judge's impartiality reasonably can be questioned. Annotated Model Code of Jud. Conduct, Commentary to Canon 3E, at 184 (Am. Bar Ass'n 2004); see also N.D. Code Jud. Conduct, Terminology (“ ‘Impartial,’ ‘impartiality,’ and ‘impartially’ mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”).
[¶44] Here, the judge is a member of McKenzie Electric, which is seeking a large financial recovery. McKenzie Electric has represented that, if successful, it will distribute the recovery to cooperative members—including the judge. At oral argument the parties confirmed that the judge's potential recovery is between $4,704 and $5,427. This potential payment to the judge is significant. Thus, like above in the discussion of economic interest, under these facts it would not be an abuse of discretion for the judge to conclude a reasonable person knowing all the facts reasonably could question the judge's partiality. On this basis McKenzie Electric cannot show the judge's decision to grant the motion was an abuse of discretion, or this is one of the rare cases requiring that we provide the extraordinary relief of a supervisory writ. Forum Commc'ns, 2008 ND 140, ¶ 8.
[¶45] Daniel J. Crothers
Lisa Fair McEvers
[¶15] On September 5, 2024, Basin and Upper Missouri made a joint motion for recusal “[p]ursuant to the North Dakota Code of Judicial Conduct Canon 2.11[.]” In their brief supporting the motion they argued the judge's cooperative membership created “a direct financial stake in the outcome of this case, and that financial interest creates a reasonable question as to both your Honor's impartiality and the appearance of impropriety.” In a September 9, 2024 filing Basin and Upper Missouri argued they did not waive disqualification by not making a motion after the July 9, 2020 proceeding. At the same time, they acknowledged that they learned in January 2023 that any recovery by McKenzie Electric would go to end user-members, and in June 2023 that McKenzie Electric was seeking between $479 and $510 million. From these numbers the Respondents estimated the judge could receive from $4,704 to $5,427 if McKenzie Electric prevails.
[¶16] Mountrail-Williams joined the motion to recuse on September 9, 2024. It argued the judge had a “financial interest” in the litigation. It also acknowledged it knew the size of McKenzie Electric's claim during 2023. Therefore, as early as January 2023, but no later than release of the expert's report in June 2023, all Respondents knew of, and took no action on, the judge's alleged economic interest in the litigation.
[¶17] On September 10, 2024, a hearing was set for a number of pending motions. The judge determined the judicial disqualification motion was a threshold matter. At the hearing the judge raised the question whether the need for his disqualification would be obviated if he disclaimed any interest in McKenzie Electric's potential recovery. Basin and Upper Missouri argued North Dakota law does not permit disclaimer and, therefore, disqualification was necessary notwithstanding the judge's suggestion he could divest himself of any pecuniary interest in the litigation.
[¶18] On September 24, 2024, the judge granted the motion to disqualify, stating:
The integrity of the justice system demands that the undersigned recuses himself from this case solely because of the mere appearance of impropriety. Even though the proponents
B
Judge's Impartiality Might Reasonably Be Questioned
[¶40] The Respondents also argued the judge was disqualified because his “financial interest creates a reasonable question as to both your Honor's impartiality and the appearance of impropriety.” While the words used by the Respondents are not those in Rule 2.11, the district court correctly read them as a claim that “the judge's impartiality might reasonably be questioned.” N.D. Code Jud. Conduct 2.11(A).
[¶41] “Rule 2.11(A) is a catchall provision mandating disqualification whenever a judge's impartiality ‘might reasonably be questioned.’ A party may seek a judge's disqualification under this general provision when the circumstances do not altogether fit into one of Rule 2.11(A)’s specifically delineated subsections or when the situation clearly falls outside one of those specified scenarios.” Garwin et al., Annotated Model Code of judicial Conduct, at 251 (citing Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge's Impartiality “Might Reasonably Be Questioned” 14 Geo. J. Legal Ethics 55 (2000)).
[¶42] The test for when a judge's impartiality might be questioned is one of reasonableness—which is objective. Jacobson, 2008 ND 73, ¶ 35. Under this objective test, the inquiry is whether the judge would be able to carry out her judicial responsibilities with the required degree of detachment. Flamm, Judicial Disqualification, Recusal and Disqualification of Judges, at 278 (3d ed. 2017) (footnotes omitted). Otherwise stated, “A judge is expected to recuse herself whenever her impartiality might reasonably be questioned by an objective observer, or when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness.” Id.; Datz v. Dosch, 2014 ND 102, ¶ 16, 846 N.W.2d 724 (“The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality.”).
[¶43] “At common law one thing and one thing alone was deemed to preclude a judge from presiding over a case: having a pecuniary interest in it.” Flamm, Judicial Disqualification, Recusal and Disqualification of Judges, at 317 (footnote omitted). The ABA Model Code of Judicial Conduct has expanded the grounds, now requiring disqualification when a judge's impartiality reasonably can be questioned. Annotated Model Code of Jud. Conduct, Commentary to Canon 3E, at 184 (Am. Bar Ass'n 2004); see also N.D. Code Jud. Conduct, Terminology (‘ “Impartial,’ ‘impartiality,’ and ‘impartially’ mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”).
[¶44] Here, the judge is a member of McKenzie Electric, which is seeking a large financial recovery. McKenzie Electric has represented that, if successful, it will distribute the recovery to cooperative members—including the judge. The Respondents assert the judge's potential recovery is between $4,704 and $5,427. This potential payment to the judge is significant. Thus, like above in the discussion of economic interest, under these facts it would not be an abuse of discretion for the judge to conclude a reasonable person knowing all the facts reasonably could question the judge's partiality. On this basis McKenzie Electric cannot show the judge's decision to grant the motion was an abuse of discretion, or this is one of the rare cases requiring that we provide the extraordinary relief of a supervisory writ. Forum Commc'ns, 2008 ND 140, ¶ 8.
[¶45] Daniel J. Crothers
Lisa Fair McEvers
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Docket No: Supreme Court No. 20240275
Decided: January 24, 2025
Court: Supreme Court of North Dakota.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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