concurring and dissenting.
[¶ 43] I concur in parts I and II of the majority opinion. However, I dissent from part Ill’s conclusion that Judge Anderson was not required to recuse himself under the facts of this case. The majority opinion cites Reems v. St. Joseph’s Hospital, 536 N.W.2d 666 (N.D.1995), for support of its conclusion that Judge Anderson need not recuse himself. In Reems, our Court concluded the facts were distinguishable from Sargent County Bank v. Wentworth, 500 N.W.2d 862 (N.D.1993), because there “questions of fact and the credibility of evidence were decided by a jury.” Reems, at 671. I disagree with Reems and would reverse it. My position is also based on our Court’s recent decision in Graves v. State Bd. of Law Examiners, 2004 ND 64, 677 N.W.2d 215. I, therefore, would reverse and remand for a new trial before a different judge.
[¶ 44] With regard to the reasoning in Reems, I find it faulty and unsupportable. Even in a case tried to the court without a jury, the trial judge decides all pre-trial motions, all motions made during and after trial, and all evidentiary decisions. The trial judge has a great deal of discretion with regard to evidentiary rulings, and our Court’s standard of review of those rulings is abuse of discretion. In addition, a trial judge can impact a jury by demeanor, facial expressions, and tone of voice. In a criminal case, the trial judge conducts the sentencing and may even fact find if a minimum sentence is required by the state. See McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). But see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding the maximum sentence a judge may impose is one based solely on the facts reflected in the jury verdict or admitted by the defendant). I am of the opinion, therefore, that Wentworth, 500 N.W.2d 862, controls the analysis of this case and disqualification is mandatory if the judge’s impartiality “might” reasonably be questioned.
[¶ 45] I also cannot distinguish this case from Graves, 2004 ND 64, 677 N.W.2d 215. In Graves, our Court set the standard for disqualification. We stated:
The Code of Judicial Conduct also provides relevant guidelines for disqualification. Canon 3(E)(1)(a) of the Code of Judicial Conduct requires that a judge “shall disqualify himself or herself in a 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 a party ... or personal knowledge of disputed evidentiary facts concerning the proceedings.” The Commentary to that rule states, “a judge is disqualified *617whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section [3(E)(1) ] apply.” The Commentary further provides that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”
These rules on disqualification must also be viewed within the context of Canon 2, which requires that a judge shall avoid impropriety and the appearance of impropriety. Canon 2(A) of the Code of Judicial Conduct specifies that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Commentary to Canon 2(A) clarifies that “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”
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This Court has addressed a judge’s duty to disqualify himself or herself to satisfy the appearance of justice:
The disqualification directions in Rule 3(C) are not merely guidelines; they are mandatory. Our primary concern is the preservation of public respect and confidence in the integrity of the judicial system, which “can only be maintained if justice satisfies the appearance of justice.” Baier v. Hampton, 440 N.W.2d 712, 715 (N.D.1989). Even without intentional bias, disqualification can be essential to satisfy the appearance of justice. Id.
Sargent County Bank v. Wentworth, 500 N.W.2d 862, 877-78 (N.D.1993) (citation omitted). The Court further concluded, reversal of a judgment may be necessary when the judge’s impartiality might be questioned:
A violation of the Rules of Judicial Conduct by the judge who presides over a case can result in the reversal of a judgment. This can occur even when the judge has no actual knowledge of, or inadvertently overlooks, a disqualifying circumstance. Judge Eckert’s conduct did not show any intentionally unethical behavior, nor can any be implied in view of the frivolity of the Williams [v. State, 405 N.W.2d 615 (N.D.1987) ] litigation. Rather, the record shows beyond question that Judge Eckert fairly tried this case. Nevertheless, the appearance of impropriety is so important to our judicial system that, in the interests of justice, reversal of a judgment may be required even without any intentional bias or impropriety.
Sargent County Bank, at 879-80 (citations omitted).
Graves, 2004 ND 64, ¶¶ 11-12, 14, 677 N.W.2d 215.
[¶ 46] In Graves, the husband of a member of the tribunal allegedly had “acrimonious business dealings with Graves’s stepfather” in 1995 and a brother-in-law had a dispute with Graves’s stepfather in 1997. 2004 ND 64, ¶ 4, 677 N.W.2d 215. In addition, Graves alleged her stepfather and the husband of a member of the tribunal had disputes in “recent years.” Id. Graves requested the disqualification in 2003. Id. at ¶ 3. In the present case, the uncle of the victim, who is the ex-wife of the defendant, was the campaign manager of the trial judge. The judicial election was in November 2000, and the affidavit of disqualification was filed by the defendant on July 12, 2001, only eight and one-half months post election. Under North Dako*618ta law, a judge’s campaign committee can continue to raise money for 90 days following the election. N.D.Code Jud. Conduct Canon 5(C)(2). This judicial campaign was difficult because it pitted one sitting judge against another. The trial judge in this case was the victor in the hard fought election.
[¶ 47] As the majority points out, “[n]othing in the record disputes the allegations in Stockert’s affidavit: that Stoc-kert had demanded against Anderson in his divorce, that Stockert’s ex-wife was a central figure in this prosecution, and that his ex-wife’s uncle had recently been Judge Anderson’s campaign manager.”
[¶ 48] The ex-wife’s uncle’s contributions to the trial judge’s campaign conceivably ended only a short time before the judge was assigned to the defendant’s case. In Graves, our Court concluded that the tribunal member’s brother-in-law’s business dealings in 1997 with the stepfather of a party and her husband’s business dealings in 1995 and “recent years” with the stepfather of a party were enough to result in the conclusion that disqualification was necessary and a new hearing before a different hearing panel was required in the interest of justice. 2004 ND 64, ¶ 17, 677 N.W.2d 215. In the present case, the trial judge was apprised of the alleged conflict of interest in July 2001. Yet the trial judge refused to disqualify himself.
[¶ 49] The Court of Appeal of Florida in Barber v. Mackenzie pointed out:
The Committee was formed at least one year prior to the election, and plainly contemplates a course of activity on behalf of the judge during the year leading up to the election. There is a substantial and continuing relationship between the Committee and the trial judge, in a matter of great and immediate importance to the judge.... [Disqualification is called for here, where there is a continuing affiliation in a joint project lasting a considerable period of time. It is the nature of the relationship which compels this result.
562 So.2d 755, 757 (Fla.Dist.Ct.App.1990). The Court of Appeal of Florida concluded that a reasonable litigant would fear that the trial court would be aware of the activities of his own campaign committee and would entertain a bias in favor of the side with attorneys or parties who were campaign committee members. Id. Although Stockert’s ex-wife is not the committee member, her uncle is the judge’s campaign manager. In Graves, the tribunal member did not have any direct conflict with Rebecca Graves. The conflict was between her husband and Graves’s stepfather and between her brother-in-law and Graves’s stepfather.
[¶ 50] The majority opinion is out of step with the clear message set out in the Graves decision that the appearance of impropriety is so important that, in the interests of justice, a reversal of the judgment may be required even without intentional bias or impropriety. 2004 ND 64, ¶ 14, 677 N.W.2d 215.
[¶ 51] In North Dakota, our state trial court judges are elected. The cost of state judicial campaigns is on the rise and threatens the court’s independence. See ABA Standing Committee on Judicial Independence, Report of the Commission on Public Financing of Judicial Campaigns, vi (Feb.2002). In Republican Party v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the United States Supreme Court held unconstitutional Minnesota’s “announce clause” which prohibited judicial candidates from “announcing their views on disputed legal and political issues.” Id. at 788, 122 S.Ct. 2528. A national survey conducted of registered voters explained the White decision and found *619that 71 percent of those polled believed that campaign contributions influence judges’ decisions. From a nationwide survey of 1,204 adult Americans conducted March 17-19, 2004, by Zogby International for the Justice at Stake Campaign, available at www.faircourts.org. The AJBA Commission on Public Financing of Judicial Campaigns found “... a pervasive public perception that campaign contributions influence judicial decision-making.” See ABA Standing Committee on Judicial Independence, Report of the Commission on Public Financing of Judicial Campaigns, vi, 18-21 (Feb.2002). One legal scholar has suggested that “[i]f regulations of campaign conduct are invalidated or limited in the wake of White, states may respond by beefing up their recusal standards.” J.J. Gass, After White: Defending and Amending Canons of Judicial Ethics, Brennan Center for Justice at NYU School of Law, 23 (2004). Public trust and confidence in fair and impartial courts is at stake. We must uphold a system that requires recusal when a reasonable basis exists for a party requesting disqualification to doubt the judge’s impartiality.
[¶ 52] The record in this case reveals that Judge Anderson was ' made aware very early in the case of the conflict of interest, that fund-raising for his judicial campaign would have ended approximately in February 2001, only four months before the July 2001 request for disqualification, and that the nature of the judicial race was such that Judge Anderson’s judicial position, which he had held for several years, was at stake. I do not believe a judge must recuse automatically because of known campaign contributions infinitely into the future, but I do believe in this case the close timing between the significant contributions to the judge’s campaign and the proceeding makes this a case that required recusal.
[¶ 53] On the facts presented, Judge Anderson’s impartiality might reasonably be questioned and reasonable minds might find an appearance of impropriety. I would reverse and remand for a new trial.
[¶ 54] Mary Muehlen Maring