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6. 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
SHALL APPLY.
- ADJUDICATIVE RESPONSIBILITIES. Commentary
on B
- 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
in it.
- 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
judge.
- 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
Proceedings.
- A judge shall not disclose or use for any purpose unrelated to adjudicatory
duties, nonpublic information acquired in a judicial capacity.
- ADMINISTRATIVE RESPONSIBILITIES. Commentary
on C
- 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
hearings.
- 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
on D
- 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
on E
- 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
in controversy;
- 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.
- REMITTAL OF DISQUALIFICATION. Commentary
on F
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.
Subsection B, Subdivisions (1)-(4):
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 D:
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.
Subsection E, Subdivision (1), Paragraphs
(a) - (f):
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.
Subsection F:
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.
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