Recusal Not Overturned
The North Dakota Supreme Court declined to vacate a judge’s decision to recuse himself in civil litigation.
McKenzie Electric Cooperative, Inc. (“McKenzie Electric”) petitions this Court for a supervisory writ directing the district court to vacate its order of recusal, deny the motion for recusal, and reassign the action back to Judge El-Dweek. Basin Electric Power Cooperative (“Basin Electric”), Upper Missouri G & T Electric Cooperative, Inc. (“Upper Missouri”), and Mountrail-Williams Electric Cooperative (“Mountrail-Williams”) (“collectively Respondents”) oppose the petition. We deny the petition, concluding this is not an appropriate case in which to exercise our supervisory jurisdiction.
The case
This case commenced in November 2019. In July 2020, Judge El-Dweek disclosed to the parties that he was a member of McKenzie Electric. The parties conducted discovery through 2023. At some time during 2023, McKenzie Electric disclosed that it was seeking between $479 million and $510 million in damages and it intended to distribute the award to its members. In July 2023, the court scheduled a 30-day jury trial to commence on January 6, 2025. Summary judgment motions were filed in December 2023. In May 2024, Respondents filed a motion for a change of venue, citing the potential jurors’ likely membership in McKenzie Electric and their resulting economic interest in the outcome of the case. At the hearing on the motion in August 2024, Judge El-Dweek again reminded the parties he was a member of McKenzie Electric, stating: “And if anybody wants to do anything with that information, they are certainly welcome to.” Following the hearing, Respondents filed a motion for recusal. After briefing and a hearing on the motion, Judge El-Dweek described the timing for the motion as “suspect” but recused himself, concluding: “The integrity of the justice system demands that [he] recuse[] himself from this case solely because of the mere appearance of impropriety.”
No supervisory writ
Our authority to issue a supervisory writ is discretionary. We exercise that discretion rarely and cautiously—and only to rectify errors and prevent injustice in extraordinary cases. Under the circumstances presented in this case, where the claimed injustice stems primarily from delay that largely cannot now be remedied and the reassignment presents no serious question of judicial bias, we decline to exercise our discretion to consider the supervisory writ.
Crothers, Justice, concurring.
I concur in the denial of McKenzie Electric’s motion for a supervisory writ. I nevertheless write separately to make clear my position that the decision to not issue a writ should not be read as my agreement with the Respondents’ arguments. Rather, I believe that the Respondents waived their objection to the judge sitting on the case, and that many of the arguments advanced by the parties to this proceeding do not correctly apply North Dakota law on recusal and disqualification. However, even applying the law as I see it, issuing a supervisory writ will not undo the strategic damage done by the Respondents’ untimely and unsupported motion.
Judge’s interest
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.
(Mike Frisch)