The opinion
STATE OF MAINE SUPERlOR COURT
YORK, SS CIVIL ACTION
DOCKETNO. CV-15-269
RENEE LEGRAND,
Plaintiff
v. ORDER
ROBERT M.A. NADEAU, York County
Probate Judge, et al.,
Defendants
Before the court are motions on behalf of York County and third party defendants
Gregory Zinser and Carol Lovejoy to dismiss the cross claims and third party claims asserted in
Judge Nadeau's Amended Answer. York County argues that the cross-claims against it do not
belong in this action and fail to state a claim. Third party defendants Zinser, who is the York
County Manager, and Lovejoy, who is the Register of Probate, contend that they have been
improvidently joined under M.R.Civ.P. 14 and that the third party complaint fails to state a
claim.
Oral argument was held on those motions on January 5, 2016. For the reasons set forth
below, Judge Nadeau's cross claim and his third-party claims are dismissed.
Count One of Cross Claim - Court Funding
In Count One of the cross-claim contained in Judge Nadeau' s Answer to the Amended
Complaint, Judge Nadeau is seeking injunctive relief requiring York County to provide "funding
. .. consistent with that of full time Maine judges" so as to comply with what he asserts is the
County ' s statutory obligation to ensure that the judicial functions of the probate court will be
available and open to the public whenever other courts in Maine are open. Cross-Claim Count I,
"Wherefore Clause" (a). 1
Historically probate judges in Maine are different from other judges in that they are
elected and have always served on a part-time basis. In recognition of this, the Code of Judicial
Conduct provides that probate judges are excused from certain of the rules applicable to other
judges. See Code of Judicial Conduct, Coverage and Effective Date, § I.B(l ) (probate judges
required to comply with certain canons "only while serving as a judge"); § I.B(2) (probate judges
not required to comply with Rule 3 .10, which provides that judges may not practice law).
It has been contemplated that at some point probate judges will become full time, but that
has not yet happened. Art. VI, § 6 of the Maine Constitution provides for the election of the
judges in the existing Probate Court system. In 1967 Art. VI § 6 was repealed, with the repeal to
be effective "at such time as the Legislature by proper enactment shall establish a different
Probate Court system with full-time judges." See Amendment CVI; Chapter 77, Resolves of the
103rd Legislature, 1967. In the ensuing 49 years, the Legislature has not established a different
Probate Court System with full time judges.
Probate judges are also anomalous in that they are state officers even though they are
paid by the county. See Hart v. County of Sagadahoc, 609 A.2d 282, 284 (Me. 1992). Title 4,
M.R.S. § 301 states, "Judges of probate in the several counties are entitled to receive annual
salaries as set forth in Title 30-A, section 2." Although there is no longer a direct reference to
I
In that count Judge Nadeau also seeks injunctive relief to obtain litigat ion defense insurance, more
security staff, various security features , and a larger cou11room. The co urt understands that the issue of
litigation insurance has now been resol ved because the State is providing Judge Nadeau with funding to
retain outside counsel to defend the claims brought by plaintiffs . The other issues are controlled by the
same principles as Judge Nadeau's general claim for more funding.
2
probate judge salaries in 30-A M.R.S. § 2, 2 the parties do not dispute that the salaries of probate
court judges are determined as part of the county budget.
How much to pay probate judges - which is partially a function of how many court days
per month they are expected to work as judges - is a non-justiciable issue. To the extent that
Judge Nadeau is seeking a judicial order that his position be made full -time, that would be
inconsistent with the constitutional amendment repealing Art. VI, § 6 once the Legislature
establishes a Probate Court with full-time judges, which it has not done.
Judge Nadeau bases his argument on 4 M .R.S. § 303, which states
Probate Court shall always be open in each county for all matters
over which it has jurisdiction, except upon days on which by law
no court is held, but it shall have certain fixed days and places to
be made known by public notification thereof in their respective
counties to which all matters requiring public notice shall be made
returnable, except as otherwise ordered by the judge.
That statute, which has existed in some form since at least 1954, see R.S. 1954, c. 153 § 5, is not
a statutory command that probate judges are entitled to full time status. If it were, there would be
no reason to have postponed the repeal of Art. VI § 6. Read in its entirety, the statute simply
gives probate judges the flexibility to schedule their cases at any time, rather than confining their
work to fixed terms and preventing them from hearing evidence at any other times. See Estate of
Knapp, 145 Me. 189, 192, 74 A.2d 217, 219 (1 950).3
2
Until 1995, 30-A M.R.S § 2(1-B) specifically set the salary of the York County probate judge. For FY
1994, for example, that salary was$ 14,320 . See P.L. 1993, c. 653 § 2. In 1993 the Legislature approved
the establishment of the York County Budget Committee, and legis lative approval of the York county
budget was no longer required . P.L. 1993 c. 623. Thereafter 30-A M.R.S. § 2 was amended to delete any
specific reference to the salary of the York County probate judge. P.L. 1995 c. 500 §1.
3
In other contexts, language that courts "s hall always be open" is intended to allow pleadings,
documents, and court orders to be filed at any time. E.g, M.R.Civ.P. 77(a).
3
To the extent that Judge Nadeau is seeking additional payment based on the contention
that he needs additional court time to manage his docket, the court has no legal basis to interfere
in the budgetary and political decisions made by the County. This is true whether or not those
decisions are correct. Judge Nadeau has appended certain statistics as Exhibit C to his cross
claim, and those statistics demonstrate that at least based on 2014 budgetary figures, he is
currently the second highest paid probate judge in the state behind only the probate judge in the
state's most populous county.
Indeed, the determination of a probate judge's salary meets certain of the hallmarks of a
nonjusticiable "political question" - specifically
A lack of judicially discoverable and manageable standards for
resolving [the issue]; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due
coordinate branches of government ...
Baker v. Carr, 369 U.S. 186, 217 (1962). Salary and funding decisions with respect to probate
judges is an issue that the political branches of government, not the courts, must resolve.
This conclusion is consistent with the decision of the U.S. Court of Claims in Atkins v.
United States, 556 F.2d 1028 (Ct. Cl. 1977). In that case the court concluded that a claim that
Congress had illegally diminished the salaries of federal judges was not nonjusticiable under the
"political question" doctrine. 556 F.2d at 1052-54. However, the court also ruled that "the initial
policy determinations regarding the real compensation that judges should receive would always
remain with the political branches." 556 F.2d at 1054.
Like the U.S. Constitution, the Maine Constitution contains language that judges'
compensation "shall not be diminished during their continuance in office," Me. Const. Art. VI §
4
2. In this case Judge Nadeau is not contending that his compensation has been diminished.
Instead he has admitted that the Commissioners raised his annual salary to $ 54,206. Amended
Answer~ 8 (admitting paragraph. l l of the amended complaint). To the extent that he is seeking
additional salary and court funding to provide more court days or for any other reason, count one
of his cross-claim fails to state a cognizable claim.
Count Two of Cross Claim and Third Party Claim against Zinser and Lovejoy - "Interference
with Supervisory Authority"
In Count Two of his Cross Claim against the County and in his Third Party Complaint
against County Manager Zinser and Register of Probate Lovejoy, Judge Nadeau seeks an
injunction preventing the County, Zinser, and Lovejoy from interfering with his supervision and
management of the Register and her staff and requiring that he be kept informed of all matters
affecting the operations of the York County Probate Court.
Looking at the factual allegations in these counts, it is apparent that they primarily
concern Judge Nadeau's dissatisfaction with the Register of Probate's and the County's position
that the Register, not the Probate Judge, shall manage the staff of the registry of probate. The
Register is independently elected by the voters of York County, and the Legislature has specified
that the Register has specific statutory duties. Me. Const. Art. VI,§ 6; 18-A M.R.S. §§ 1-501 , 1
503 - 1-505.
While 18-A M.R.S. § 1-305 provides in pertinent part that "(t]he register shall be subject
to the supervision and authority of the judge of the court in which such register serves," nothing
in the statute gives a probate judge authority to manage the register' s staff. Moreover, the court is
aware of no legal authority for the proposition that the County Commissioners and County
5
Manager cannot express their views as to the effect of collective bargaining contracts and other
issues with respect to the management of the register's staff. The register of probate, unlike the
probate judge, is a county officer, see 30-A M.R.S. § 1(3), and the members of her staff are
county employees. Under those circumstances it is inevitable that administrative and budgetary
issues will arise in which the County Commissioners and County Manager will become
involved. In all such issues there is the potential for disagreement - although it is highly
unfortunate that the level of disagreement is so significant between Judge Nadeau, the County,
the County Manager, and the Register.
The short answer to Judge Nadeau's claims against the County and County Manager
Zinser is that under the circumstances of this case, there is no legally enforceable right to be free
of alleged "interference." Accordingly, count two of the cross claim and the third party
complaint against Zinser fail to state a claim upon which relief may be granted.
Judge Nadeau's third party complaint against Resister Lovejoy also fails to state a
cognizable claim. First, the statutory language providing that the Register is subject to the
probate judge' s supervision and authority, 18-A M.R.S. §1-305, is the second sentence of a
provision that specifically refers to probate records. It is not clear that the statutory language is
intended to give a probate judge general authority over the register of probate in all respects.
However, even assuming that general authority exists, there is no allegation in the complaint that
the Register has refused to implement any of Judge Nadeau's scheduling decisions. The
pleadings in this case demonstrate that she has implemented Judge Nadeau' s scheduling changes
even though she disagrees with them.
18-A M.R.S. § 1-305 cannot be read to require that Register Lovejoy, an independently
elected county official, has no option except to express unqualified agreement with Judge
6
Nadeau's scheduling decisions and not offer any dissenting views. To the extent that Judge
Nadeau's claim that Lovejoy is interfering with his authority is intended to stifle dissent on
Register Lovejoy's part, it does not state a cognizable claim. To the extent that he is instead
seeking a general declaration as to the extent of his authority as judge of probate, the court
cannot decide that issue in the abstract. 4
Finally, to the extent that Judge Nadeau is complaining that Lovejoy is failing to
adequately perform her duties as Register, 18-A M.R.S. §§ 1-507 and 1-508 provide a specific
procedure by which a probate judge may address alleged deficiencies in the performance of the
Register. The existence of that statutory remedy indicates that Judge Nadeau has a remedy at
law, which precludes his claim for injunctive relief.
Judge Nadeau's third party complaint against Zinser and Lovejoy is subject to dismissal
for an additional reason. M.R.Civ.P. 14(a) allows a defendant to assert claims as a third party
plaintiff against a person "who is or may be liable to such third party plaintiff for all or part of
the plaintiffs claim against the third party plaintiff." In this case the plaintiff (Renee LeGrand) is
seeking declaratory relief against Judge Nadeau based on the allegation that he made retaliatory
schedule changes that deprived LeGrand of due process and her constitutional right to access to
the courts. The court is not aware of any authority that a third party defendant can be brought
into litigation that only seeks declaratory or injunctive relief. Even overlooking that issue,
Nadeau is not alleging that Zinser or Lovejoy required him to adopt the schedule that LeGrand is
challenging. The court can see no way in which, if LeGrand prevails, Zinser or Lovejoy would
be responsible to Nadeau for the declaratory relief sought by LeGrand.
4
Judge Nadeau's claims in Count Two of his cross claim and in his third party complaint against Zinser
and Lovejoy are reminiscent of a claim raised in York County Probate Court v. Atwood, No. CV-03-4 I
(Superior Ct. York) as to who was the "head" of the York County Probate Court at official meetings, an
issue which the court (Studstrup, J. ) found to be nonjusticiable. Order dated January 13 , 2005, reported at
2005 Me. Super. LEXIS 16.
7
Count Three - Unpaid Vacation Time
In Count Three of his cross claim Judge Nadeau contends that he is entitled to recover for
60.52 hours of "Paid Time Off' available to part-time county employees under the County's
personnel manual. On this issue the County argues that Judge Nadeau has only been sued in his
official capacity and therefore cannot assert a cross-claim in his personal capacity. The court
does not have to reach this issue because the unpaid vacation claim is legally insufficient in any
event. As discussed above, Judge Nadeau is not a county officer or employee but is a state
officer whose salary happens to be paid by the County. His claim that he should be treated as a
part-time county employee for purposes of "Paid Time Off' fails to state a claim.
In addition, the unpaid vacation claim does not arise out of the same "transaction or
occurrence" that is the subject of LeGrand's claim against Judge N_adeau and is therefore not a
proper subject for a cross-claim under M.R.Civ.P. 13(g).
Count Four - Open Meetings Violation
In Count Four of his Cross-Claim Judge Nadeau contends that on various unspecified
occasions the County Commissioners have engaged in executive sessions regarding his
employment without complying with the notice and participation requirements of the Freedom of
Access Law, 1 M.R.S. §§ 405(4), 405(5), and 405(6)(A). The parties strenuously disagree as to
the viability of this claim,5 but the court finds that there are two reasons this claim cannot
proceed, at least as part of this action.
5
Part of that disagreement concerns the interpretation of the Law Court's decision in U~derwood v. City
of Presque Isle, 1998 ME 166, 715 A.2d 148. To the extent that Judge Nadeau is contending that there
have been clandestine executive sessions, he would have the initial burden of demonstrating that those
occurred. Underwood, 1998 ME 166 ~ 18, citing Marxsen v. MSAD 5, 591 A.2d 867, 871 (Me. 1991). If
the existence of a closed session has been established, however, the defendant has the burden of proving
that its actions in executive session complied with the Freedom of Access law. Underwood, 1998 ME 166
8
The first is that, as noted above, a cross-claim has to arise out of the same "transaction or
occurrence" that is the subject of the original action. M.R.Civ.P. 13(g). Judge Nadeau is
complaining about allegedly improper executive sessions throughout his tenure, Cross Claim ,
42, but he does not allege that these arise out of the same transaction or occurrence as the
schedule changes that are the subject of plaintiffs complaint.
Second, as the Law Court has noted, the Freedom of Access law provides "a very narrow
choice of remedies in circumstances where violation of its limits on executive sessions are
found." Lewiston Daily Sun v. MSAD .43, 1999 ME 143 , 11, 738 A.2d 1239. Official actions
taken in violation of the executive session rules may be declared null and void, and the Attorney
General may seek civil penalties. Id. In his cross-claim there is no official action that Judge
Nadeau is seeking to have declared null and void. His generalized complaint about improper
executive sessions that have allegedly occurred in the past and that he believes will continue in
the future fails to state a claim.
Count Five and Third Party Claim against Zinser and Lovejoy- Hostile Work Environment
The final count in Judge Nadeau' s cross-claim against York County seeks damages from
the County for creating a "hostile work environment." The same claim is incorporated in his
third party complaint against Zinser and Lovejoy.
Once again, the issues he is raising do not arise from the same transaction or occurrence
as the subject of plaintiffs complaint under Rule 13(g) and are therefore not the proper subject
of a cross-claim. They are also not the proper subject of a third party complaint because Zinser
~~ 18-19. Finally, when a plaintiff is arguing that a decision should be vacated because of an improper
closed session, the plaintiff has 30 days from the time he or she learns of the closed session in which to
seek redress under Rule SOB. E.g. , Palmer v. Portland School Committee, 652 A.2d 86, 89 (Me. 1995).
9
and Lovejoy cannot be found liable to Judge Nadeau for the declaratory relief sought by
LeGrand based on Judge Nadeau's scheduling changes.
In any event, the short answer to count five of the cross-claim is that hostile work
environment claims are employment discrimination claims based on membership in a protected
class under the Maine Human Rights Act. Watt v. UniFirst Corp., 2009 ME 47 ,r 22, 969 A.2d
897. Judge Nadeau does not allege that he was subjected to a hostile work environment based
upon gender, age, race, color, sexual orientation, physical or mental disability, religion, ancestry
or national origin. 5 M.R.S. § 4571.
Count Five also refers to the Whistleblowers Protection Act. However, Judge Nadeau
has not identified any report or activity that would constitute protected activity under the
Whistleblowers Protection Act. See 26 M.R.S. § 833(1)(A)-(F). All of the actions protected
under § 833(1)(A)-(F) are actions taken by an "employee." Judge Nadeau is not a county
employee. His disputes with York County as to whether the County should give him more court
time and more compensation and his disputes with , the County over the management of the
Register's office are policy disputes between elected officials.
For the foregoing reasons, Count Five of the Cross-Claim fails to state a cognizable
claim.
The entry shall be:
The motion by York County to dismiss defendant's cross claim and the motion by third
party defendants Zinser and Lovejoy to dismiss defendant's third party complaint are granted.
The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: February J2-., 2016
__}~
Thomas D. Warren
Justice, Superior Court
10
STATE OF MAINE SUPERIOR COURT
YORK, SS CIVIL ACTION
DOCKETNO. CV-15-269
RENEE LEGRAND,
Plaintiff
v. ORDER
ROBERT M.A. NADEAU, York County
Probate Judge, et al.,
Defendants
Before the court is Judge Nadeau's motion to dismiss the complaint filed by plaintiff
Renee LeGrand as class representative and his motion to compel a legal defense and
reimbursement from York County.
For the reasons set forth below and those stated on the record at the oral argument held
on January 5, 2016, both of those motions are denied.
Judicial Immunity
The motion to dismiss is based on a claim of judicial immunity.
At the outset, the U.S. Supreme Court ruled in Pulliam v. Allen, 466 U.S. 522 (1984), that
"judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in
Q1is] judicial capacity." 466 U.S. at 542. The result is that under federal law i.tnn1mtlty protects
judicial officers from actions for damages, not actions seeking equitable relief.
Following the Pulliam decision, Congress amended 42 U.S .C . § 1983 to add the
following language:
in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C. § 1983, as amended in 1996 by Pub. L. No. 104-317, 110 Stat. 3847 § 309(c).
In this case LeGrand's amended complaint seeks declaratory relief in the first instance on
her section 1983 claim. The language of the 1996 amendment to section 1983 demonstrates that,
at a minimum, declaratory relief for actions or omissions by judicial officers is available under
section 1983. As a result, LeGrand's section 1983 claims are not barred by judicial immunity or
by the 1996 amendment to section 1983 .
In addition, even in actions where damages have been sought, the U.S. Supreme Coutt
has drawn a distinction between judge's actions which are judicial in nature and those which are
administrative. Forrester v. 'FVhite, 484 U.S. 219, 227 (1988) . Administrative actions taken by a
judge are not enti tled to absolute judicial immunity. 484 U.S . at 229.
While the cowt is reluctant to be cast into the role of reviewing scheduling decisions
made by another judicial officer, it is constrained to conclude that the specific scheduling
decisions challenged in this case appear to be administrative rather than adjudicatory in nature.
While scheduling decisions made with respect to individual cases - e.g., whether the parties are
ready for trial, whether requests for continuances should or should not be honored, how many
days of trial or hearing time should be allotted - are necessarily part of a judge's adjudicative
function, the decisions challenged by LeGrand relate to the overall scheduling of comt time and
not to the adjudication of individual cases.
The court is also keenly aware of the difficulty of scheduling cases in situations where
judicial resources are scarce. However, that issue goes to the merits of whether LeGrand can
prove that Judge Nadeau ' s scheduling decisions were not designed for that purpose .
2
Accordingly, because only equitable relief is sought and because the actions challenged
appear to be administrative in nature, Judge Nadeau's motion to dismiss LeGrand's section 1983
claim based on judicial immunity is denied .1
Motion for Legal Defense and Reimbursement from York County
Judge Nadeau's emergency motion to compel York County to provide him with a legal
defense and reimbursement fo r legal expenses must be rejected based on the Law Court's
decision in Hart v. County ofSagadahoc, 609 A.2d 282 (Me. 1992). The Hart case also involved
a claim for reimbursement of legal expenses by a sitting probate judge, and the Law Com1 found
that there was no conunon law right to obtain reimbursement for legal expenses. Crucially, it
also rnled that a probate judge "is not a county officer" even though counties are required to pay
probate judges' salaries. 609 A.2d at 284.
Judge Nadeau now argues that Hart has been superseded by amendments to 30-A M.R.S.
§ 1(4) and to the Maine Tort Claims Act. However, nothing in either of those statutes as they
have been amended establishes, contrary to the ruling in Harl, that probate judges are members
of county government within the meaning of 30-A M.R.S . § 1(4) or are county employees within
the meaning of 14 M.R.S. § 8102(1).
Hart in fact suggests that probate judges are state officers rather than county officers. See
609 A.2d at 284. Judge Nadeau may therefore have a claim to have his legal defense provided by
the State. See Kennedy v. State, 1999 ME 85, 730 A.2d 1252. This may depend on whether 14
I
The cou1t reserves decision on whether LeGrand's equitable claims under the Maine Constitution are
barred by judicial immunity as that do ctrine exists under Maine law. In addition, there is a question of
whether those claims can be asse1ted where they do not appear to fal l wi thin the scope of the Maine Civ il
Rights Act, 5 M.R.S. § 4682.
3
M.R.S. § 8112 applies to claims for equitable relief. In any event, the State is not a party to this
action and would be entitled to be heard on those issues.
Similarly, Judge Nadeau may have a claim to have his legal defense provided by the risk
management pool maintained by the Maine County Commissioners Association. That also may
depend, at least in part, on whether the County Commissioners ' risk pool covers the defense of
probate judges in actions for equitable relief - an issue that ca1mot be decided in the absence of
the County Commissioners Association.
Finally, if Judge Nadeau is entitled to have his legal defense provided by the State under
the Maine Tmt Claims Act or by the County Commissioners Association Risk Pool, any defense
that might be available would almost certainly not cover the requests for affirmative relief that
Judge Nadeau has asserted in his cross claims against York County and in his third party claims
against Carol Lovejoy and Gregory Zinser.2
The entry shall be :
Defendant' s motion to dismiss the amended complaint and defendant 's motion to compel
a legal defense and reimbursement from York County are denied. The clerk is directed to
incorporate this order in the docket by reference pursuant to Rule 79(a) .
Dated: January _6_, 2016
Thomas D. Wanen
Justice, Superior Court
2
The motions by York County , Lovejoy, and Zinser to dismiss the cross claims and the third party claims
were argued on Janua1y 5, 2016, and those motions remain under advisement.
4