Code of Judicial Conduct for Administrative Law Judges
CANON 3 - An Administrative Law Judge Shall Perform the Duties of the Office Impartially and Diligently
- JUDICIAL DUTIES INCLUDE ALL OF THE DUTIES OF THE OFFICE PRESCRIBED
BY LAW. IN THE PERFORMANCE OF THESE DUTIES, THE FOLLOWING STANDARDS
- ADJUDICATIVE RESPONSIBILITIES. Commentary
- A judge shall hear and decide matters assigned to the judge except
those in which disqualification is required.
- A judge shall be faithful to the law and maintain professional competence
- A judge shall not be swayed by partisan interests, public clamor,
or fear of criticism.
- A judge shall require order and decorum in proceedings before the
- A judge shall be patient, dignified, and courteous to litigants,
witnesses, lawyers, and others with whom the judge deals in an official
capacity, and shall require similar conduct of lawyers, staff members,
and others subject to the judge’s direction and control.
- A judge shall perform judicial duties without bias or prejudice.
A judge shall not, in the performance of judicial duties, by words
or conduct, manifest bias or prejudice, including, but not limited
to, bias or prejudice based upon race, sex, religion, national origin,
disability, age, sexual orientation, or socioeconomic status, and
shall not permit staff members, lawyers, and others subject to the
judge’s direction and control to do so.
- A judge shall require lawyers in proceedings before the judge to
refrain from manifesting, by words or conduct, bias or prejudice based
upon race, sex, religion, national origin, disability, age, sexual
orientation, or socioeconomic status against parties, witnesses, counsel,
or others. This subdivision does not preclude legitimate advocacy
by counsel when race, sex, religion, national origin, disability,
age, sexual orientation, socioeconomic status, or other similar factors,
are issues in the proceeding.
- A judge shall accord to every person who has a legal interest in
a proceeding, or that person’s lawyer or representative, the
right to be heard according to law. However, a judge shall dispose
of all judicial matters promptly, efficiently, and fairly.
- Ex parte communications to and by a judge are subject to the provisions
of § 28-32-12.1 of the North Dakota Century Code.
- A judge shall not, while a proceeding is pending or impending, make
any public comment that might reasonably be expected to affect its
outcome or impair its fairness or make any nonpublic comment that
might substantially interfere with a fair hearing. A judge shall require
similar abstention on the part of staff members subject to the judge’s
direction and control. This subdivision does not apply to proceedings
in which the judge is a litigant in a personal capacity.
- Judges shall permit broadcasting, televising, recording, or photographing
in hearing rooms, subject to the provisions of § 98-02-03-04
of the Uniform Rules of Administrative Procedure for Adjudicative
- A judge shall not disclose or use for any purpose unrelated to adjudicatory
duties, nonpublic information acquired in a judicial capacity.
- ADMINISTRATIVE RESPONSIBILITIES. Commentary
- A judge shall diligently discharge assigned administrative responsibilities,
without bias or prejudice, and maintain professional competence in
judicial administration, and shall cooperate with other judges and
staff in the administration of the business of the office of administrative
- A judge shall require staff and other persons subject to the judge’s
direction and control to observe the standards of fidelity and diligence
that apply to the judge, and to perform their official duties without
bias or prejudice.
- A judge with supervisory authority for the judicial performance
of other judges shall take reasonable measures to assure the prompt
disposition of matters before them and the proper performance of their
other adjudicatory responsibilities.
- DISCIPLINARY RESPONSIBILITY. Commentary
- A judge having knowledge that another judge has committed a violation
of this code that raises a substantial question as to the other judge’s
fitness for office shall inform the appropriate authority.
- A judge having knowledge that a lawyer has committed a violation
of the North Dakota Rules of Professional Conduct that raises a substantial
question as to the lawyer’s honesty, trustworthiness, or fitness
as a lawyer in other respects shall inform the appropriate authority.
- DISQUALIFICATION Commentary
- A judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:
- the judge has a personal bias or prejudice concerning the proceeding;
- the judge served or serves as a lawyer in the matter in controversy;
- a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter in controversy;
- a lawyer with whom the judge currently practices law serves or served as a lawyer in the matter in controversy;
- the judge has been a material witness concerning the matter
- the judge has served in government employment and in such capacity
participated as counsel, adviser, or material witness concerning
the proceeding or expressed an opinion concerning the proceeding;
- the judge knows that he or she, individually or as a fiduciary,
or his or her spouse, parent or child, or other family member
has an economic interest in the subject matter in controversy
or is a party to the proceeding, or has any other interest of
more than a de minimis nature that could be substantially affected
by the proceeding;
- the judge knows that he or she, individually, or his or her
spouse, or a person within the third degree of relationship to
either of them, or the spouse of such a person:
- is a party to the proceeding, or an officer, director, or
trustee of a party;
- is acting as a lawyer in the proceeding;
- is known by the judge to have more than a de minimis interest
to be substantially affected by the outcome of the proceeding;
- is to the judge’s knowledge likely to be a material
witness in the proceeding.
- A judge shall keep informed about the judge’s personal and
economic interests, and make a reasonable effort to keep informed
about the personal and economic interest of the judge’s spouse
and minor children residing in the judge’s household.
- A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
- REMITTAL OF DISQUALIFICATION. Commentary
A judge disqualified by any of the provisions of this section, may disclose on the record the basis of the disqualification. Following disclosure by the judge, if there exists any basis for disqualification other than personal bias or prejudice concerning the parties and lawyers, the parties and lawyers, independently of the judge’s participation, may all agree that the judge should not be disqualified and may participate in the proceeding. If the judge is then willing to participate, the judge shall participate in the proceeding, pursuant to an agreement which shall be incorporated into the record of the proceeding.
COMMENTARY - Canon 3.
The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the judge. Judges can be efficient and businesslike while being patient and deliberate. Subsection B, Subdivision (5):
A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the administrative judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give parties or lawyers in the proceeding, the media, and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.
A judge must refrain from speech, gestures, or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge’s direction and control.
Subsection B, Subdivision (7):
In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary costs or delay. Containing costs while preserving the fundamental rights of parties also protects the interest of witnesses and the general public. A judge should monitor and supervise cases so as to reduce dilatory practices, avoidable delays, and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the judge.
Subsection B, Subdivision (9):
The requirement that judges abstain from public comment regarding
a pending or impending proceeding continues during any period of consideration
by an administrative agency, during any appellate process and until
final disposition of the matter. This subdivision does not prohibit
judges from making public comments in the course of their official duties
or from explaining to members of the public the hearing procedures of
the agency. This subdivision is not intended to preclude participation
in an association of administrative law judges merely because such an
association makes public comments about pending or impending proceedings
before the office of administrative hearings.
Subsection C, Subdivision (3):
This subdivision emphasizes the responsibilities of supervisory judges to require the prompt disposition of agency business. Reasonable measures may include direct communication with the judge, referring the judge for further training or for appropriate treatment programs, or referring the judge for professional counseling.
Subsection 3 requires judges to report to the appropriate disciplinary authority, significant misconduct of other judges or lawyers, thus diminishing the number of instances in which the judges take upon themselves to impose sanctions for misconduct.
A lawyer in a government agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection. A judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge’s impartiality might reasonably be questioned because of such association.
Subsection E, Subdivision (1), Paragraph (g) and (h):
The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that “the judge’s impartiality might reasonably be questioned” under subsection E, subdivision 1, or that the lawyer-relative known by the judge to have an interest in the law firm that could be “substantially affected by the outcome of the proceeding” under subsection E, subdivision 1, paragraphs g and h, may require the judge’s disqualification.
A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek, or hear comments on possible remittal or waiver of the disqualification, unless the lawyers jointly propose remittal after consultation as provided in this subsection. A party must act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, the judge may wish to have all parties and their lawyers sign a remittal agreement. Although the remittal procedure is designed to permit a case to move forward with the consent of the parties, the judge, nevertheless, may be required to disqualify himself or herself under circumstances where the judge’s involvement is prohibited under other law.
Index to Code
Compliance with Code of Judicial Conduct
Canon 1 - An Administrative Law Judge Shall Uphold the Integrity
and Independence of the Administrative Judiciary
Canon 2 - An Administrative
Law Judge Shall Avoid Impropriety
and the Appearance of Impropriety in All Activities
Canon 3 - An Administrative
Law Judge Shall Perform the Duties
of the Office Impartially and Diligently
Canon 4 - An Administrative
Law Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice
Canon 5 - An Administrative
Law Judge Should Regulate Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial
Canon 6 - An Administrative
Law Judge Shall Limit Compensation
Received for Certain Activities
Canon 7 - An Administrative
Law Judge Shall Refrain from
Political Activity Inappropriate to the Judicial Office
OAH Statutory References
Wade C. Mann, Director
Office of Administrative Hearings
2911 N 14th St - Ste 303
Bismarck, ND 58503
Tel: (701) 328-3200
Fax: (701) 328-3254