Judge in the UND v. NCAA Case Once Belonged to Fighting Sioux Pep Club

According to Indianz.com: ” As a student at UND in the 1960s, Judge Lawrence Jahnke belonged to the all-male Golden Feather pep club. The group created the controversial “Sammy the Sioux” mascot that depicted an Indian in a cartoonish fashion. The group also chose the “Indian maiden” outfits worn by UND cheerleaders.”

The relevant section of the N.D. Code of Judicial Conduct (along with the official commentary) is here:

E. Disqualification.

(1) 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:


Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.

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.

By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of disputed evidentiary facts concerning the proceedings;

N.D. Code Judicial Conduct Canon 3.

Although Judge Jahnke denies it, it seems clear that his impartiality in this matter be reasonably questioned. His support of an even more offensive logo (Sammy), not to mention Indian maiden cheerleader uniforms, in his college days suggests that he would not find the current logo offensive. He has already exercised a great deal of discretion in granting a preliminary injunction in favor of UND. But to be fair, North Dakota is a small state. And, if my recollection is accurate, four of the five ND Sup. Ct. justices are UND grads. My guess is that a motion to recuse would be pointless. 

I’m still trying to figure out why the NCAA never asked to remove the case to federal court. I suppose that’s why I’m not a trial litigator.

More coverage from Indianz:

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Jahnke: Golden Feather membership not relevant (The Grand Forks Herald 10/25)
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Judge’s Sioux ties run deep (The Fargo Forum 10/24)
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Editorial: Judge errs in sealing Sioux files (The Fargo Forum 10/24)