BISMARCK, N.D. — New rules for judicial campaigns allow candidates to respond “with caution” to questions from interest groups, an issue that triggered a federal lawsuit against North Dakota’s restrictions on what judges may say.
The North Dakota Supreme Court last week adopted new regulations affecting what judges and judicial candidates may say during campaigns. The new rules are influenced by a recent American Bar Association study of the subject.
The court is soliciting public comments about the rules, even though they took effect Jan. 4. The comment deadline is Feb. 21.
The issues must be considered before North Dakota’s campaign season opens, said Northwest District Judge Doug Mattson, who is chairman of the Supreme Court’s Judiciary Standards Committee. Candidates for next year’s elections may begin circulating nominating petitions on Jan. 14.
One Supreme Court seat and 15 district judgeships are on the North Dakota ballot this year, including at least one open seat left by the retirement of Northwest District Judge Robert Holte of Stanley.
“The idea is to be able to give judicial candidates a framework that they can use to campaign,” Mattson said. “There is a bit of uncertainty out there because of recent litigation, and this is meant to take away some of that uncertainty.”
The new rules say judicial candidates are not barred from replying to reporters’ questions about issues, or to questionnaires from advocacy groups.
Candidates should “proceed with caution” in responding, the rules say, and those who do “should make clear their commitment to keeping an open mind while on the bench, regardless of their own personal views.”
John Trombley of Fargo, chairman of the North Dakota Family Alliance, said the changes are welcome. The group challenged North Dakota’s judicial-speech restrictions in federal court two years ago after some candidates said the rules prevented them from responding to the alliance’s campaign questionnaire.
“It is so frustrating for anybody to try to find out what a judicial candidate believes or feels about anything,” Trombley said. “Let’s give the folks of North Dakota the opportunity to find out what these judicial candidates are all about.”
The Family Alliance is a Christian advocacy group that promotes socially conservative views. Its survey asked judicial candidates about whether they believed the U.S. Constitution provides a right to abortion and homosexual relationships and bans the broadcast of prayers at public school athletic events.
“The problem with [judicial rules] before is that these guys were handcuffed,” Trombley said. “You’re not allowed to answer any questionnaires ... That was the part that was the stick-in-your-throat kind of stuff.”
North Dakota’s canons of judicial conduct have kept previous campaigns for judgeships almost issue-free. Candidates discussed their backgrounds and qualifications, but shied from detailed discussion of more sensitive subjects, such as their views on the rights of criminal defendants.
Those limits have been on shaky ground since the U.S. Supreme Court’s June 2002 ruling in Republican Party of Minnesota v. White. In that case, the Court concluded that Minnesota judicial rules violated the First Amendment by prohibiting candidates from giving their views on “disputed legal or political issues.”
Last year, U.S. District Judge Dan Hovland cited that decision in ruling that North Dakota’s limits on judicial candidates’ speech were unconstitutional.
“The First Amendment ... does not permit a state to dictate what information the voters may be trusted with,” Hovland wrote. “For First Amendment rights to mean anything, judicial candidates must be allowed to impart whatever information they choose about their views on political, legal and social issues, and their personal philosophy — without restriction.”
Several months after Hovland’s decision, the 8th U.S. Circuit Court of Appeals, whose jurisdiction includes North Dakota, concluded in a Minnesota case that judicial candidates have a right to advertise their partisan ties, accept political endorsements and personally solicit campaign contributions.
Although North Dakota’s new judicial conduct rules explicitly say judicial candidates are not barred from answering questionnaires, they are devoted mostly to defending the speech limits that already exist.
Two regulations that restrict what judges may say, called the “pledges and promises” and “commit” rules, are merged. The new rules say judicial candidates “shall not, with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”
The rules also incorporate extensive new arguments in favor of North Dakota’s limits on judicial speech.
The state’s sparse population, its small number of trial and appeals judges, and its laws that allow participants in a lawsuit to demand a new judge could quickly make it tough to find a judge to hear a case, the rules say.
East Central District Judge Steven McCullough of Fargo, a member of the standards committee, described the new rules as narrowly drawn to balance the free-speech rights of candidates and the impartiality of the judiciary.
McCullough, who was elected to the bench two years ago, said he “didn’t feel all that constrained” by North Dakota’s regulations during his own campaign.
“If you’re saying so much in a campaign that you have to disqualify yourself of all of the hotly contested issues, then you’re really not doing the system a very good service,” McCullough said. “If every judge did that ... there would be no judges that could rule on those contested issues, and I don’t know what would happen then.”