Petition for Writ of Certiorari — Dunleavy v. Maine Committee on Judicial Responsibility & Disability
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031172 Jan 2.0 2004
gears No.
IN THE
Supreme Court of the United States
IN RE HONORABLE JAMES P. DUNLEAVY
On Petition for a Writ of Certiorari
to the Supreme Judicial
Court of Maine
PETITION FOR A WRIT OF CERTIORARI
James Edward Mitchell
Counsel of Record
Jim Mitchell and Jed Davis, P.A.
\ 86 Winthrop Street 2
‘ Augusta, ME 04330
(207) 622-6339
Counsel for Petitioner
i
QUESTIONS PRESENTED FOR REVIEW
Does Canon 5(A)(1)(e) of the Maine Code of Judicial
Conduct violate the First Amendment to the Constitution of
the United States by its prohibition against solicitation of
campaign contributions by a sitting elected judge running for
State senate, despite a state statute specifically authorizing
such solicitation?
Does Canon 5(A)(3) of the Maine Code of Judicial
Conduct violate the First and Fourteenth Amendments to the
Constitution of the United States by its requirement that an
elected judge resign his judgeship before running for state
senate, despite a state statute specifically authorizing such
candidacy?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FORREVIEW. ss
TABLEOF AUTHORITIES ..s—s—iwi‘(“‘(‘ éWC;*;*;*~*~™S iii
OPINIONBELOW... ss —t—‘“‘“‘“‘i‘i‘i;‘i‘i‘i‘;i;t;~s™S
aan...
CONSTITUTIONAL PROVISIONS INVOLVED.
STATEMENT 2
SPECIFICATION OF THE STAGE IN PROCEEDINGS
WHEN THE FEDERAL QUESTIONS WERE RAISED _ 3
REASONS FOR GRANTING THE PETITION 5
A. Canon 5(A)(1)(e) of the Maine Code of Judicial
Conduct violates the First Amendment to the
Constitution of the United States by its prohibition
against solicitation of campaign contributions by a
sitting elected judge running for state senate,
despite a state statute specifically authorizing such
solicitation 5
B. Canon 5(A)(3) of the Maine Code of Judicial
Conduct violates the First and Fourteenth
Amendments to the Constitution of the United
States by its requirement that an elected judge
resign his judgeship before running for state
senate, despite a state statute specifically
authorizing suchcandidacy ss —s—i‘i‘sS 9
ES, 13
a a) tb rr la
og SG ea 28a
APPENDIX C 3la
TABLE OF AUTHORITIES
CASES: Page
Clements v. Fashing. 457 U.S. 957 (1982) 10
Gitlow v. People of State of New York, 268 U.S. 652
isos as ee ag ee eae 2
In Re Honorable James P. Dunleavy, 2003 ME 124,
ed 1, 3-6, 9, 10, 12
Joyner v. Mofford, 706 F.2d 1523 (9"" Cir. 1983), cert.
Gesttadd, SESS. VERITY osc scsnoniciusniazenesenseisroosete 10
McDonald v. Ethics Committee of the Kentucky
Judiciary. 3 S.W.3d 740 (Ky. 1999) 11
McIntyre v. Ohio Elections Com'n, 514 U.S. 334 (1995) ____.
Morial v. Judiciary Commission of State of Louisiana,
565 F.2d 295 (5"™ Cir. 1977), cert. denied, 435 US.
1, Rae Re SRIER 9? RAE Bi Reeoee a 1]
Republican Party of Minnesota v. White, 536 U.S. 765
LTR ISIN ashy AA 5-10, 12
Signorelli v. Evans, 637 F.2d 853 (2"° Cir. 1980)... 11
Spargo v. New York State Com'n o Judicial Conduct,
351 F.3d 65 (2™ Cir. 2003) ccccccceccccsssesesessseeeee 4
Spargo v. New York State Com'n on Judicial Conduct,
244 F.Supp.2d 72 (N.D.N.Y. 2003). 4,7
Suster v. Marshall, 149 F.3d 523 (6" Cir. 1998) 7
Weaver v. Bonner, 309 F.3d 1312 (11" Cir. 2002) 5-12
Worthy v. Michigan, 142 F.Supp.2d 806 (E.D.Mich.
, Re er metalus Maule a elena mee: Moanin een 10
U.S. CONSTITUTION
ft FR gee RTO ei mens orm ARO ]
Amendment 14,Section] ss Z
STATUTES AND CANONS
4 M.RS.A. § 312, Political Activities of Judges of
Probate Z, 3+, 10
21-A M.R.S.A. § 1125(3), Maine Clean Elections Act 2
&
3
3
j
CE EA ne MOR NG ee eet eRe tT OEM eee MERA Le TS Re RET ay ee See eRe ee eee se en MRT ee ee ER Re eee egg ee ee ogee ee ee
Mitiiticcatininacass i ia iA ia Din a ts
iv
TABLE OF AUTHORITIES — Continued
STATUTES AND CANONS Page
28 U.S.C. § 1257(a), State Courts; Certiorari ]
Cannon 5(A)(1)(e), Maine Code of Judicial Conduct
1, 2, 3, 5-9
a Oe
Cannon 5(C)(3), Maine Code of Judicial Conduct sy 9
APPENDIX
A. In Re Honorable James P. Dunleavy, 2003 ME 124,
oe ne la
B. Judicial Ethics Committee, Advisory Opinion 02-5,
18 Me. B.J. 56,57 (Sept.10,.2002). 28a
C. March 10, 2003 letter from Petitioner’s counsel to the
Honorable Leigh I. Saufley, Chief Justice of the
Supreme Judicial Court 3la
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2003
Honorable James P. Dunleavy, Petitioner,
vs
Committee on Judicial Responsibility and Disability,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME JUDICIAL COURT OF MAINE
The Honorable James P. Dunleavy respectfully petitions
for a writ of certiorari to review the judgment of the Supreme
Judicial Court of Maine in this case.
OPINION BELOW
In Re Honorable James P. Dunleavy, 2003 ME 124, 838
A.2d 338. See Appendix A, infra.
JURISDICTION
The decision of the Maine Supreme Judicial Court sought
to be reviewed was entered on October 22, 2003. Petitioner,
the Honorable James P. Dunleavy, claims that his rights to
free speech and equal protection of law guaranteed by the
First and Fourteenth Amendments to the Constitution of the
United States have been violated by the State of Maine.
This Court has jurisdiction to review the foregoing
decision pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Constitution of the United States, Amendment 1:
“Congress shall make no law . . . abridging the freedom of
,
on
speech . . . ;” which applies to the states under Gitlow v.
People of State of New York, 268 U.S. 652 (1925) and
Amendment 14 to the Constitution of the United States.
The Constitution of the United States, Amendment 14,
Section 1: “. . . nor shall any state . . . dery to any person
within its jurisdiction the equal protection of the laws.”
STATEMENT
On August 14, 2002, Maine's Committee on Judicial
Responsibility and Disability (the “Committee”) received a
complaint alleging that a Maine probate judge, James P.
Dunleavy, had violated two Canons of the Maine Code of
Judicial Conduct (the “Code”): Cannon 5(A)(3), by running
for the Maine state senate without first resigning his position
as judge of probate, and Canon 5(A)(1)(e), by soliciting
contributions in support of his candidacy.
The Committee notified Judge Dunleavy of the
complaint. Judge Dunleavy responded and admitted that he
was then running for the Maine senate while holding office
as probate judge and that he had solicited 150 five-dollar
contributions as required of state senate candidates to qualify
for public campaign funding from the Maine Clean Elections
Fund, pursuant to the Maine Clean Elections Act, 21-A
M.R.S.A. § 1125(3).
Judge Dunleavy noted that a Maine statute authorizes a
probate judge to run for another elected office without first
resigning his judicial office and argued that the statute
supersedes the Code:
As a candidate for the elective office of judge
of, probate or as an elected judge, a person
seeking or holding the office of judge of
probate may engage in any political activity
that would be lawful for a candidate for any
other elected county office or for an
incumbent elected county official. Any such
judge may hold any other elected office or
Ee
a
J
other elected office or offices not made
incompatible by the Constitution of Maine.
4 M.R.S.A. § 312. ;
On or around November 20, 2002, the Committee
notified Judge Dunleavy that it was not within its authority to
determine whether section 312 overrode the Code and. if it
did, whether that constituted an unconstitutional invasion by
the Legislature of the judicial branch's inherent power to
discipline its members. The Committee also disclaimed
jurisdiction to decide whether the Canons conflicted with the
| Constitution of the United States. See March 10, 2003 letter
from Petitioner’s counsel to the Honorable Leigh I. Saufley,
Chief Justice of the Supreme Judicial Court (Appendix C).
Judge Dunleavy waived his right to a hearing before the
Committee.
The Committee reported the matter to the Maine Supreme
Judicial Court, which had original jurisdiction. See
Appendix A, Jn Re Honorable James P. Dunleavy, 2003 ME
124, {9 4, 13, 838 A.2d 338, 343, 344.
The Supreme Judicial Court of Maine found that Canons
S(A)(1)(e) and 5(A)(3) were constitutional under the
Constitution of the United States and that Judge Dunleavy
had violated them. Dunleavy, 2003 ME 124, Ti 4; 24; 2),
29, 36, 838 A.2d 338, 347. 348, 349, 350, 352.
Judge Dunleavy won the Democratic party's primary
election for senate district 2 on June 11, 2002. His name
appeared on the ballot November 5, 2002, but he lost the
general election. During that time, Judge Dunleavy served as
a county probate judge and continues to do so.
SPECIFICATION OF THE STAGE IN PROCEEDINGS
WHEN THE FEDERAL QUESTIONS WERE RAISED
Judge Dunleavy first sought the counsel of Maine's
Judicial Ethics Committee which issues advisory opinions to
judges upon request. That committee disclaimed authority to
4
decide constitutional questions before it. See Judicial Ethics
Committee, Advisory Opinion 02-5, 18 Me. B.J. 56, 58 (Sept.
10. 2002) (Appendix B).
Judge Dunleavy next dealt with the Committee on
Judicial Responsibility and Disability, which also disclaimed
jurisdiction to decide constitutional questions. See March 10,
4003 letter from Petitioner's counsel to the Honorable Leigh
I. Saufley, Chief Justice of the Supreme Judicial Court of
Maine (Appendix C).
The federal questions sought to be reviewed were raised
before the Supreme Judicial Court of Maine as a matter of
original jurisdiction with that highest state court. See id. The
petitioner in that court. Maine's Committee on Judicial
Responsibility and Disability, specifically disclaimed
jurisdiction to deal with constitutional questions. See id.
While it did comment on constitutional matters, it did not
brief them extensively. Some of the constitutional questions
were discussed for the first time at oral argument because a
certain case (Spargo v. New York State Com'n on Judicial
Conduct. 244 F.Supp.2d 72 (N.D.N.Y. 2003))' raised them
and its holding became a subject of comment at oral
argument, even though it had not been briefed. Petitioner
relies on the language of the Supreme Judicial Court of
Maine at Dunleavy, 2003 ME 124, 94 21, 22, 27, 29, 36, 838
A.2d 338. 347, 348, 349, 350, 352, to show that the federal
constitutional issues addressed in this petition were
considered by the only tribunal below which possessed
authority to consider them.
1 Though it supports Judge Dunleavy’s position, the District Court
decision in Spargo was vacated by the 2™ Circuit on grounds unrelated
to the merits. See Spargo v. New York State Com 'n on Judicial
Conduct, 351 F.3d 65 (2™ Cir. 2003).
5
REASONS FOR GRANTING THE PETITION
A. Canon 5(A)(1)(e) of the Maine Code of Judicial
Cunduct violates the First Amendment to the
Constitution of the United States by its prohibition
against solicitation of campaign contributions by a
sitting elected judge running for state senate, despite a
state statute specifically authorizing such solicitation.
Canon 5(A)(1)(e) of the Maine Supreme Judicial Court’s
Code of Judicial Conduct (the “Code”) provides that a judge
shall not "solicit funds for, pay an assessment to, or make a
contribution to a political organization or candidate, or
purchase tickets for political party dinners or other functions.
..." Maine Code of Judicial Conduct, Canon 5(A)(1)(e).
The United States Supreme Court, in Republican Party of
Minnesota v. White, 536 U.S. 765 (2002), as interpreted in
Weaver v. Bonner, 309 F.3d 1312 (11™ Cir. 2002), concluded
that barring a candidate for judicial office from raising funds
violated his right to free speech and expression as guaranteed
by the First Amendment to the Constitution of the United
States. While the nght to solicit funds was not an issue in
White, it was a core issue in Bonner.
Relying on White, the Bonner court held unconstitutional
a Canon of the Georgia Code of Judicial Conduct that
proscribed judicial candidates from personally soliciting
campaign funds. That court found that the Canon failed strict
scrutiny as “completely chill{ing] a candidate’s speech. . .
while hardly advancing the state’s interest in judicial
impartiality at all.” Bonner, 309 F.3d at 1323. The reasoning
in Bonner is well suited to the instant case.
In its decision against Petitioner, the Maine Supreme
Judicial Court repeatedly defined the compelling interest as
including the “appearance” or “perception” of impartiality.
Dunleavy, 2003 ME 124 4 22, 26, 31, 38, 838 A.2d 338,
348, 348, 351, 353. But it does not attempt to define that
6
appearance or perception. Under strict review, any state
interest against perceived impartiality of the bench is too
vague to warrant the chill of Canon 5(A)(1)(e).
The Maine Legislature had specifically allowed sitting
elected judges to raise funds in a race for state senate. The
Court, therefore. had a responsibility to explain why it had a
compelling interest to proscribe such conduct in the name of
appearances.
The Supreme Judicial Court of Maine specifically cited
and rejected the twin arguments that the prohibition on fund
raising has a chilling effect on a candidate’s ability to speak
with potential contributors, and that the restrictions
impermissibly distinguish between judicial and legislative
races. This Maine decision conflicts with Weaver v. Bonner,
supra. Only this Court can reconcile these conflicting trends
under White.
This twin rejection concluded that the restrictions are
narrowly tailored to further the state’s interest in judicial
impartiality. For the Supreme Judicial Court of Maine to so
rule, it had to declare unconstitutional, under the Maine
Constitution, 4 M.R.S.A. § 312, which specifically permitted
sitting probate judges to engage in all political activities
(which necessarily include fund raising) open to other county
office holders. Thus, the Court is declaring a compelling
state interest to prohibit an activity of which the Legislature
specifically approved.
To reach its conclusion, the Supreme Judicial Court of
Maine found that funds raised by a candidate under Maine’s
Clean Elections Act. which go not to the candidate but to
Maine’s Clean Elections Fund, are “for his candidacy” and
that, therefore, their solicitation violated the Canon’s
prohibition against soliciting funds for a “political
organization or candidate.” Dunleavy, 2003 ME 124, q 26,
838 A.2d 338, 348. The United States Supreme Court is
unlikely to reinterpret for Maine Maine's own Code of
Judicial Conduct to declare that funds raised for the Clean
<0 eet ona em
7
Elections Fund are not raised for a candidacy, but this Court
must recognize that without that interpretation, Judge
Dunleavy would not be in violation of Canon 5(A)(1)(e) and
ine constitutional questions might disappear from this issue.
The Supreme Judicial Court of Maine also distinguished
both Bonner and Spargo (the District Court decision which
had not yet been vacated) because they applied to judges
running for judicial office whereas Judge Dunleavy was
running for state senate. This distinction does not withstand
strict scrutiny. In only a slightly different context, the case of
Suster v. Marshall, 149 F.3d 523 (6" Cir. 1998) addresses
this distinction: “The guarantees of the First Amendment are
not shaped and reshaped simply because a litigant wishes to
distinguish one type of election from another.” /d at 529-530.
The rationale behind prohibiting a judge from raising
funds during a judicial election — that it would subject him
to special influence or the appearance of being subject to the
special influence of contributors — is the same and only
rationale for applying the identical prohibition in a race for
non-judicial office. If the First Amendment allows a judge
running for judicial office to raise funds directly, then it must
allow that same judge running for another office to raise
funds directly. If he wins the other office he will no longer be
a judge, so post election influence would not be at issue. If he
loses the other office and remains a judge. post-election
influence could be an issue, but no more of one than post-
election influence for a successful judicial candidate. If the
issue is the appearance of impropriety while he is a sitting
judge raising funds, no logical distinction exists between
raising funds for judicial or non-judicial office.
Political speech associated with solicitation of campaign
contributions is core speech subject to special protection,”
2 See Republican Party of Minnesota v. White. 536 U.S. 765. 789-790 (2002)
(O’Connor. J.. concurring) (“. . . the cost of campaigning requires . . .
candidates to engage in fundraising.”): id at 774 and cases cited therein.
8
whether during a judge’s race for reelection to judicial office
or one for any other political office. See McIntyre v. Ohio
Elections Com'n, 514 U.S. 334. 346-47 (1995) (“The First
Amendment affords the broadest protection to such political
expression in order ‘to assure [the] unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people.’ . . . '[I]t can hardly be doubted that the
constitutional guarantee has its fullest and most urgent
application precisely to the conduct of campaigns for
political office.) (Citations omitted.)
Bonner said that speech associated with fund raising is
protected in the following language: “Campaigning for
elected office necessarily entails raising campaign funds and
- seeking endorsements from prominent figures and groups. ..
. [The Canon] fails strict scrutiny because it completely chills
a candidate’s speech on these topics while hardly advancing
the state’s interest in judicial impartiality at all.” Bonner,
309 F.3d at 1322-1323.
Bonner correctly applies this Court’s rationale in White.
The Supreme Judicial Court of Maine misapplies White's
teaching.
The Supreme Judicial Court of Maine explicitly assumed
that Canon 5(A)(1)(e) restricts free speech, but found it
sufficiently narrowly tailored to serve a compelling state
interest.. That interest was preserving the appearance of
impartiality in the judiciary. The Maine court says that its
Canon is narrowly tailored because it applies to “sitting
judges, as opposed to judicial candidates.” Dunleavy, 2003
ME. 124, § 31, 838 A.2d 338, 351. That rationale makes no
sense. Canon 5(A)(1)(e) applies to judges of probate when
they are running for reelection, so it does apply to judicial
candidates. Furthermore, Canon 5(C)(3)° prohibits judges of
3 Canon 5(C)(3) of the Maine Code of Judicial Conduct reads. “A candidate for
election or reelection as judge of probate shall not personally solicit or accept
campaign contributions or personally solicit publicly stated support.”
9
probate — the only category of judge elected in Maine —
from soliciting funds in their own election and reelection
campaigns. The Canon 5(A)(1)(e) restriction, amplified by
Canon 5(C)(3) but not changed by it for purposes of this
analysis, applies to judges of probate when they are sitting
and when they are running, regardless of the office for which
they are running. The Maine court’s analysis simply differed
from that of the Bonner court, and this Court can and should
declare that the federal judges have it right.
Accordingly, the authors of Jn Re Honorable James P.
Dunleavy wrongly find that Canon 5(A)(1)(e) of the Maine
Code of Judicial Conduct is constitutional as written and as
applied under the Constitution of the United States, and this
Court should grant a writ of certiorari to reverse the
erroneous decision.
B. Canon 5(A)(3) of the Maine Code of Judicial Conduct
violates the First and Fourteenth Amendments to the
Constitution of the United States by its requirement
that an elected judge resign his judgeship before
running for state senate, despite a state statute
specifically authorizing such candidacy.
Canon 5(A)(3) of the Code provides that "[a] judge shall
resign from judicial office upon becoming a candidate for
any elective office, except that a judge of probate may be a
candidate for reelection while holding that office... ."
Maine Code of Judicial Conduct, Canon 5(A)(3).
In Republican Party of Minnesota v. White, supra, this
Court disparaged the presumed differences between
legislative and judicial electioneering and the differing
standards that the states have imposed on those different
kinds of elections. The issue in White was whether free
speech was different for judicial candidates than for other
candidates because of the state’s interest in maintaining an
10
impartial judiciary with the appearance of impartiality. This
Court concluded that the difference is overdrawn.
Weaver v. Bonner, supra. uses the reasoning in White to
eliminate effectively the free speech differences between
legislative and judicial races. Under modern free speech
analysis, there is no articulable difference between a race for
judicial office and one for legislative office.
This Court in this case need not decide if it is still
constitutional for a state constitution to contain a resign-to-
run provision (Clements v. Fashing, 457 U.S. 957 (1982);
Worthy v. Michigan, 142 F.Supp.2d 806 (E.D.Mich. 2000)).
Fashing is uncertain guidance at best, because it does not
prohibit all electoral political activity of a single class
(judges) but, rather, prohibits several classes of people from
qualifying for a single electoral act — running for the Texas
Legislature. In this case the Maine Legislature specifically
allowed, by statute, probate judges to run for legislative
office without first resigning their judgeships. The
Legislature passed this statute, 4 M.R.S.A. § 312. despite the
prior existence of the inconsistent Canon.
The Maine Supreme Judicial Court, in Dunleavy, held
that the Canons supersede the statute as a matter of
separation of powers under the Maine Constitution.
Therefore. as a matter of ethics, the Code of Judicial Conduct
imposes its own resign-to-run requirement. Since ethics is
different from law. the question here is whether a resign-to-
run provision can be supported as a matter of ethics even
though the Legislature has specifically declared that a sitting
judge may run for another office and the state constitution is
silent.
The analysis in Joyner v. Mofford, 706 F.2d 1523 (9" Cir.
1983) and Signorelli v. Evans, 637 F.2d 853 (2™ Cir. 1980)
add nothing to the Fashing precedent. Joyner, in particular,
supports a balancing test weighing restrictions against
benefits. which essentially ignores First Amendment
implications. Joyner, like Fashing does not restrict itself to
ent Soman tee oat
judges. Signorelli does focus only on judges but does not
consider either equal protection or free speech questions.
Certainly, neither case helps analyze the need for a court to
prevent candidacies which the Legislature has approved.
Morial v. Judiciary Comm'n of State of Louisiana, 565
F.2d 295 (5" Cir. 1977), cert denied, 435 U.S. 1013 (1978),
approved of a resign-to-run provision embodied in a statute
and a canon of ethics that were consistent. The Morial court
adopted what has been characterized as a “sliding scale”
perspective. McDonald v. The Ethics Committee of the
Kentucky Judiciary, 3 $.W.3d 740, 743 (Ky. 1999).
That Morial test had not been adopted by this Court
before Morial and has not been approved since that time. The
question was not then, and is not now, what is “reasonably
necessary.” Morial, 565 F.2d at 297, 299-300, 302, 308-309.
Rather, the question is whether a prophylactic measure which
abridges both free speech under the First Amendment and
equal protection under the Fourteenth is strictly required to
meet a compelling state interest.
Under Morial’s sliding scale analysis, the Morial court
found it significant that the bar on political candidacy by a
judge did not prevent preliminary surveys of financial
support. In contrast, Judge Dunleavy was barred from raising
qualifying contributions to a clean elections fund. Thus, his
preliminary activity was proscribed, a point of distinction
even if a Morial sliding scale test were to be adopted by this
Court.
If a candidate for judicial office may raise funds, as he
can under Bonner, for his reelection, then he can do so ina
race for any other office. That is the proposition under the
first issue in this petition.
But if that candidate can raise funds while he is a sitting
judge, what logic supports a rule of ethics which forces him
to resign in order to exercise that basic right? In what
demonstrable manner is it worse to raise funds for a
legislative race than for a judicial one?
12
—
Ethics is concerned primarily with appearances. How
does separating a judge’s “political. legislative. or executive
branch ambitions” from his judicial decision making, as the
Supreme Judicial Court of Maine puts it, improve his ethics
under a strict scrutiny standard? Dunleavy, 2003 ME 124, €
22. 838 A.2d 338. 348. If a judge can solicit and take money
for his reelection. as allowed in Bonner, is he less likely to be
influenced in his decisions by that money than by money
given for another office? If he can announce his positions on
political and legal issues in a judicial race. as allowed in
White. is he more compromised by announcing his positions
on political and legal issues in a legislative race?
Under what rationale are sitting judges to be singled out
as a suspect class who would presumptively make worse
candidates for legislative office than all other people who are
entitled to consider running?
No case known to Petitioner has addressed the resign-to-
run issue. particularly not as a matter of ethics. since White
was decided. Because the Maine decision under review
conflicts with Bonner and effectively rejects the reasoning in
White, this Court should overturn the Maine decision. thereby
endorsing the better interpretation of White by the federal
judiciary. Canon 5(A)(3) of the Maine Code of Judicial
Conduct as applied to sitting elected probate judges is
unconstitutional as an abridgement of their rights of free
speech and equal protection under the First and Fourteenth
Amendments to the Constitution of the United States.
oy safer RRA ARP EN SN ORRR
_
13
CONCLUSION
The petition for a writ of certiorari should be granted.
January 2004
Respectfully submitted,
James Edward Mitchell
Counsel of Record
Jim Mitchell and Jed Davis, P.A.
86 Winthrop Street
Augusta, ME 04330
(207) 622-6339
Counsel for Petitioner
APPENDIX
la
APPENDIX A
In Re Honorable James P. Dunleavy, 2003 ME 124, 838
A.2d 338.
Docket: Jud-03-1
Decided: October 22, 2003
DANA, J.
[{{1] The Committee on Judicial Responsibility and
Disability (the Committee) in its report dated February 17,
2003, asserts that Aroostook County judge of probate James
P. Dunleavy violated Canons 5(A)(3) and 5(A)(1)(e) of the
Judicial Code of Conduct (the Code) and recommends that
we impose appropriate discipline. We conclude that Judge
Dunleavy did violate Canons 5(A)(3) and 5(A)(1)(e), but on
these unique facts, impose no discipline.
I. BACKGROUND
[({2] On August 14, 2002, the Committee received a
complaint alleging that Judge Dunleavy had violated both
Canon 5(A)(3) of the Code by running for the Maine State
senate without first resigning his position as judge of probate
and Canon 5(A)(1)(e) by soliciting contributions in support
of his candidacy. Shortly thereafter, the Committee notified
Judge Dunleavy of the complaint. Judge Dunleavy
responded and admitted that he was then running for the
State senate while holding office as probate judge and that he
had solicited 150 five-dollar contributions to qualify for
public campaign funding from the Maine Clean Elections
Fund. However, he argued that 4 M.R.S.A. § 312 (Supp.
2002) (hereinafter, section 312) authorizes a probate judge to
run for another elected office without first resigning his
judicial office and that the statute supersedes the Code.
Judge Dunleavy also asserts that the Maine Constitution
supports the right of sitting probate judges to run for other
elected offices.
2a
[3] On November 20, 2002, the Committee notified
Judge Dunleavy that it considered his actions violations of
the Code of Judicial Conduct and that it was prepared to
report the case to the Law Court. Before reporting the case,
the Committee offered Judge Dunleavy a hearing but
indicated that it did not consider a hearing necessary because
the material facts were undisputed. The Committee
explained that it was not within its authority to determine
whether section 312 overrode the Code, and if it did, whether
that constituted an unconstitutional invasion by the
Legislature of the Judicial branch's inherent power to
discipline its members. The Committee later clarified that it
considered Judge Dunleavy's solicitation of five-dollar Clean
Elections qualifying contributions to be "funds" within the
meaning of Canon 5(A)(1)(e) because that money ultimately
enabled the public funding of his entire campaign. Judge
Dunleavy waived his right to a hearing before the
Committee.
[§4] Pursuant to the Supreme Judicial Court's order
establishing the Committee, and Committee Rules 2(I) and 3,
the Committee reported the matter to us.
II. DISCUSSION
A. Introduction
[§5] Our discussion of the issues must begin with
reference to the overriding provisions of our Maine
Constitution which establish the authority, responsibility, and
independence of all judges. Separation of powers of the
Executive, Legislative, and Judicial branches is mandated by
Article III of the Maire Constitution. Article III states:
§ 1. Powers distributed
Section 1. The powers of this government
shall be divided into 3 distinct departments,
the legislative, executive and judicial.
§ 2. To be kept separate
Section 2. No person or persons, belonging to
one of these departments, shall exercise any
of the powers properly belonging to either of
the others, except in the cases herein
expressly directed or permitted.
ME. CONST. art. III.
[6] In interpreting Article III, we have stated: "[T]he
separation of governmental powers mandated by the Maine
Constitution is much more rigorous than the same principle
as applied to the federal government." State v. Hunter, 447
A.2d 797, 799 (Me. 1982). The limitation in Article III that
no person belonging to any one branch of government shall
exercise the powers of any other branch of government
necessarily requires that a constitutional grant of power to
one branch of government effectively forbids the exercise of
that power by any other of the three branches of government.
Id. at 800; Bossie v. State, 488 A.2d 477, 480 (Me. 1985).
({7] The Judicial branch's powers are established
pursuant to Article VI, Section 1 of the Maine Constitution,
which states:
Section 1. The judicial power of this State
shall be vested in a Supreme Judicial Court,
and such other courts as the Legislature shall
from time to time establish.
ME. CONST. art. VI, § 1.
[8] The judicial power vested in the Supreme Judicial
Court includes the authority to regulate the professional
conduct of judges. In re Benoit, 487 A.2d 1158, 1170 (Me.
1985) ("The Supreme Judicial Court, as the only court
established by our state constitution, has the inherent power
to prescribe the conduct of judges of all the courts, and to
discipline judges for their acts that violate the Code of
Judicial Conduct."); Jn re Ross, 428 A.2d 858, 868 (Me.
1981) ("[I]t is incumbent upon the Supreme Judicial Court to
4a
exercise that part of the judicial power involved in
prescribing the conduct of judges and imposing discipline
upon them for misconduct."). See generally Dist. Court for
Dist. IX v. Williams, 268 A.2d 812, 813 (Me. 1970) (holding
that an executive branch agency is without authority to
review an action taken by the judicial branch).
[§9] Article VI, section 1, authorizes the Legislature to
create other courts by statute. However, even when a court is
created by legislative enactment, its judicial powers and
authority are conferred by and subject to the constitution and
the ethical requirements specified by the Supreme Judicial
Court. Ross, 428 A.2d at 867-68. This authority extends to
regulation of the conduct of judges of probate. See generally
In re Barrett, 512-A.2d 1030 (Me. 1986).
[10] Pursuant to its exclusive authority to regulate
judicial conduct, as an exercise of the powers conferred upon
the Judicial branch, this Court has adopted the Code of
Judicial Conduct. The purposes and goals of the Code are
stated in the first paragraph of its preamble:
Our legal system is based on the principle that
an independent, fair and competent judiciary
is essential to our concepts of justice and the
rule of law. The judge, as arbiter of facts and
law for the resolution of disputes, is a highly
visible symbol of government under the rule
of law. Accordingly, the Maine Code of
Judicial Conduct is founded on the precepts
that judges, individually and collectively, must
respect and honor the judicial office as a
public trust and must strive to maintain and
enhance public confidence in our legal system.
Maine Code of Jud. Conduct Preamble.
(§11] Judges of probate are explicitly subject to the Code
of Judicial Conduct, except for a few narrowly defined
fT Saco SRAM, lh SB tei spain 5 da
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exceptions not relevant in this case. Code of Judicial
Conduct, Part II, § 1.
[§12] The case before us must be considered against this
constitutional background of authority and responsibility
placed upon the Supreme Judicial Court to regulate judicial
conduct.
B. Jurisdiction and Burden of Proof
[913] "[T]he Supreme Judicial Court has exclusive
original jurisdiction over all judicial disciplinary matters."
Mitchell v. Judicial Ethics Comm., 2000 ME 83, § 5, 749
A.2d 1282, 1283. Therefore, when considering the report of
the Committee, the Court sits as the court of original
jurisdiction. Jn re Cox, 553 A.2d 1255, 1256 (Me. 1989).
[{14] "[T]he Committee bears the burden of proving the
allegations contained in its report by a preponderance of the
evidence." /d. at 1255. Judge Dunleavy, however, does not
dispute any of the Committee's factual allegations and has
waived his right to a factual hearing before this Court. He
contends that, as a matter of law, his actions do not constitute
actionable violations of the Code. The Committee limited its
determination to consideration of whether Judge Dunleavy's
conduct was inconsistent with the Code and did not address
whether the Code conflicts with a Maine statute or the Maine
Constitution. We do so now.
C. Canon 5(A)(3)
[§15] Judge Dunleavy contends that Canon 5(A)(3)
conflicts with 4 M.R.S.A. § 312 (Supp. 2002) and is therefore
invalid. He suggests that section 312 supersedes Canon
5(A)(3) because the preamble of the Code requires that its
provisions be applied consistently with statutes and
constitutional requirements and because section 312 was
enacted more recently than Canon 5(A)(3). Moreover, Judge
Dunleavy maintains that because the Maine Constitution only
prohibits sitting judges from simultaneously holding other
public offices and not from running for them, Canon 5(A)(3)
6a
abridges the right of sitting judges to run for office and the
voters’ right to vote for a particular candidate.
[{16] Canon 5(A)(3)'s requirement that a judge resign
before becoming a candidate for any elected office (other
than an incumbent Judge of probate running for reelection)
does indeed conflict with section 312's provision that "a
person . . . holding the office of Judge of probate may engage
in any political activity that would be lawful for a candidate
for any other elected county office or for an incumbent
elected county official." Therefore, we must decide which
provision prevails.
({17] Judge Dunleavy is correct that the preamble
provides that the Code should be applied consistent with
statutes, suggesting that section 312 might trump Canon
5(A)(3). However, if a statute is unconstitutional, we could
not apply it "consistent with constitutional requirements."
Because we conclude that (1) to the extent it purports to
authorize judicial conduct inconsistent with the Code, section
312 is an unconstitutional invasion by the Legislature of the
Court's inherent and exclusive authority to regulate judicial
conduct; and (2) Canon 5(A)(3) is constitutional; our
application of the Code rather than the statute is consistent
with the constitution and all constitutional statutes.
1. Constitutionality of 4 M.R.S.A. § 312 (Supp.
2002)
[§18] We adopted the Code in 1974 pursuant to the
Supreme Judicial Court's inherent authority to discipline and
sanction judges and grounded upon the fundamental need for
an independent judiciary. See In re Benoit, 487 A.2d at
1170-71. Our authority is derived from two constitutional
provisions: Article VI, section 1 of the Maine Constitution
establishes our general authority by vesting the judicial
power of the State of Maine "in [the] Supreme Judicial Court,
and such other courts as the Legislature shall from time to
time establish," ME. CONST. art. VI. § 1; In re Ross, 428 A.2d
oR aE A BAER hs LE Rite deo FR Sete thik ay Re PSH. og
ibaa Dida aca a Ne DE BAN ad eR ES i a ae ns bre
ic tte Hilt Bias sa
7a
at 868, and Article III, incorporating the separation of powers
doctrine, divides the powers of our government into three
distinct co-equal branches and prohibits the Legislature from
exercising judicial powers, unless expressly directed or
permitted by the constitution, ME Const. art. III; Bd of
Overseers of the Bar v. Lee, 422 A.2d 998, 1002 (Me. 1980).
Each branch of government is "severally supreme within [its]
legitimate and appropriate sphere of action." Ex parte Davis,
41 Me. 38, 53 (1856). We have recognized that
From this concept of separation of powers
there is derived the inherent power of the
Supreme Judicial Court. It is a fundamental
principle of constitutional law that each
department in our tri-partite scheme has,
without any express grant, the inherent right to
accomplish all objects necessarily within the
orbit of that department when not expressly
allocated to, or limited by the existence of a
similar power in, one of the other
departments. The inherent power of the
Supreme Judicial Court, therefore, arises from
the very fact that it is a court and connotes that
which is -essential to its existence and
functioning as a court.
Lee, 422 A.2d at 1002.
[§19] Judge Dunleavy contends that in Estate of
McCormick, 2001 ME 24, 765 A.2d 552, we recognized that
the Legislature has a role in controlling or permitting extra-
judicial conduct; therefore, section 312 is within the
Legislature's authority. However, in that case we were not
asked to decide whether the statute to which we were referred
violated the separation of powers. In McCormick, we
rejected the appellant's argument that his due process rights
had been violated when, in probate court, he was opposed by
counsel who also served as a part-time probate judge. /d.
8a
15, 765 A.2d at 558. Although we recognized the potential
unfairness that might exist when the appellant, while
appearing before one probate judge, is opposed by another
probate judge-advocate with years of service on the bench,
we found no due process violation and noted that despite
widespread criticism, "[t]he Maine Legislature has addressed
this issue and has continued to allow probate judges to
maintain active probate practices." Jd. § 16, 765 A.2d at
559. While this statement might suggest that we recognized
the Legislature's authority to address issues of potential
judicial conflict and impropriety, we noted that the appellant
had not challenged the constitutionality of the statute. /d.,
765 A.2d at 558. Therefore, we were not asked to consider
whether the statute usurped our judicial authority. Here, we
are presented with that question and we conclude that to the
extent section 312 purports to authorize conduct by a judge
that is prohibited by the Code, the statute does usurp our
judicial authority and is therefore unconstitutional.
2. Constitutionality of Canon 5(A)(3)
[{20] Having determined that section 312 is
unconstitutional as applied, we now consider whether Canon
5(A)(3) is constitutional. Judge Dunleavy directly attacks the
constitutionality of Canon 5(A)(3), relying on Article IX,
section 2 of the Maine Constitution and explaining that
because section 2 only prohibits holding incompatible
offices, not running for them, Canon 5(A)(3) infringes on his
right to be a candidate for State senate and the voters’ right to
elect him.
["21] The fact that the Maine Constitution only prohibits
holding incompatible offices and is otherwise silent on the
subject of judges running for non-judicial offices does not
render Canon 5(A)(3) unconstitutional because no conflict
exists between the Canon and the constitution. The Code
simply provides a more exacting restriction for judges than is
provided in the constitution. Moreover, the law does not
PaaS be AR nites
9a
recognize either a constitutional right to run for a particular
office or the right to vote for a particular candidate. League
of Women Voters v. Diamond, 965 F. Supp. 96, 103 n.5 (D.
Me. 1997). "Resign-to-run" requirements have withstood
constitutional challenges in the United States Supreme Court
and other courts. Clements v. Fashing, 457 U.S. 957, 972-73
(1982) (holding that the Texas Constitution's "resign-to-run
requirement" did not violate either the Equal Protection
Clause of the Fourteenth Amendment or the First
Amendment to the United States Constitution); Morial v.
Judiciary Comm'n, 565 F.2d 295 (5th Cir. 1977), cert.
denied. 435 U.S. 1013 (1978); Worthy v. Michigan, 142 F.
Supp. 2d 806 (E.D. Mich. 2000).
[22] We conclude that Canon 5(A)(3) rests on a rational
predicate and does not violate the guarantees of equal
protection, freedom of speech. or freedom of association in
either the Maine or United States Constitutions. It rationally
seeks to separate a judge's political, legislative, or executive
branch ambitions from the judge's judicial decision-making
to further the objective of maintaining a judiciary that is
independent and impartial both in fact and in the public's
perception.
[23] Finally, Judge Dunleavy argues that Canon 5(A)(3)
is void because the requirement that a judge resign his office
before he seeks a non-judicial elective office is tantamount to
his removal from office, which only the joint action of the
Legislature and the Governor may require after an
impeachment or an address. We disagree. Canon 5(A)(3)
only requires a sitting judge to choose between a candidacy
and the bench. It does not unconstitutionally usurp any
authority belonging to our co-equal branches of government.
[{24] Because 4 M.R.S.A. § 312 (Supp. 2002) is
unconstitutional as applied and Canon 5(A)(3) is
constitutional, Canon 5(A)(3) controls. We hold that Judge
Dunleavy committed an actionable violation of Canon
10a
5(A)(3) when he chose to run for the State senate without
resigning his position as probate judge.
D. Canon 5(A)(1)(e)
[§25] Judge Dunleavy contends that he also did not
violate Canon 5(A)(1)(e) because the funds he solicited were
not for a "political organization or candidate," rather he
collected the funds for the Maine Clean Elections Fund;
therefore. the funds did not go to any specific candidate or
party. The Committee found that Judge Dunleavy's personal
fund solicitation of 150 five-dollar contributions to qualify
for public financing under the Maine Clean Elections Act,
21-A M.RS.A. § 1125(3) (Supp. 2002), violated Canon
5(A)(1)(e)'s prohibition on solicitation of funds for a political
organization or candidate. We agree..
1. Violation
(§26] Through Canon 5(A)(1)(e) we sought to prevent
the appearance of, or the ultimate corruption of, the judicial
process by preventing judges from soliciting contributions in
support of their own political ambitions. The funds Judge
Dunleavy collected entirely enabled his candidacy.
Therefore, although the five-dollar contributions were not
directly deposited in his campaign fund, they were solicited
"for" his candidacy. Judge Dunleavy's personal solicitations,
which ultimately enabled his candidacy, exposed him to
suggestions of bias and compromised the appearance of
impartiality fundamental to the integrity of the judiciary. We
conclude that his solicitation of Clean Elections Fund
qualifying contributions violated Canon 5(A)(1)(e).
2. Constitutionality of Canon 5(A)(1)(e)
[€27] Judge Dunleavy challenges the constitutionality of
Canon 5(A)(1)(e) on the ground that it and the Code as a
whole "are a hodge-podge of prior restraint, vague standards
and broad restrictions not tailored to protect any compelling
state interest." He also narrows his attack and argues that
Canon 5(A)(1)(e) violates the First Amendment to the United
lla
States Constitution, relying on Weaver v. Bonner, 309 F.3d
1312 (11th Cir. 2002); Republican Party of Minnesota v.
White, 536 U.S. 765 (2002); and Spargo v. N.Y. State
Comm'n on Judicial Conduct, 244 F. Supp. 2d 72 (N.D.N.Y.
2003), on appeal, stay denied by Spargo v. N.Y. State
Comm'n on Judicial Conduct, 2003 U.S. Dist. LEXIS 7073
(N.D.N.Y. Apr. 29, 2003), to contend that the restrictions
have a chilling effect on a candidate's ability to speak to
potential contributors about their contributions and
endorsements. and that the restrictions are impermissibly
designed to make judicial elections different from legislative
elections.
[28] The Committee correctly notes an important
distinction between the restrictions at issue in White and
Weaver and this case. Both of those cases concerned
restrictions on candidates for judicial office in states where
judges are elected. In Weaver, the Eleventh Circuit, applying
strict scrutiny, held unconstitutional the Georgia Code of
Judicial Conduct's prohibition on candidates for judicial
office personally soliciting campaign funds. Weaver, 309
F.3d at 1322-23. The court determined that these restrictions
were not narrowly tailored to further the state's interest in
judicial impartiality and completely and improperly chilled
the candidate's right to speak to potential contributors and
endorsers about their contributions and endorsements. /d. at
1322. The court explained that in a system where judges are
publicly elected, it is necessary for judicial candidates to
raise campaign funds. J/d at 1322-23. The fact that
candidates could not do so personally did little to minimize
the risk that they would be partial if elected because the
candidates were permitted to raise funds and _ seek
endorsements via their committees. /d. The court concluded,
therefore. that the restriction did not survive strict scrutiny
because it "completely chilled [a candidate] from speaking to
potential contributors and endorsers about their potential
12a
contributions and endorsements," id. at 1322, "while hardly
advancing the state's interest in judicial impartiality," id. at
1323.
[{29] In White, the U.S. Supreme Court, applying a
standard of strict scrutiny, held unconstitutional the
Minnesota Code of Judicial Conduct's "announce clause."
White. 536 U.S. at 788. The Court held that the "announce
clause." which prohibited candidates for judicial election
from announcing their views on disputed legal issues,
violated the First Amendment because it was "woefully
underinclusive" and not narrowly tailored to serve a
compelling government interest. /d. at 780-81. Although the
Court concluded that the "announce clause" was
unconstitutional, Justice Kennedy, in his concurrence,
specified that White did not present the question of "whether
a State may restrict the speech of judges because they are
judges,” suggesting that the rationale of Pickering v. Board of
Education of Township of High School District 205, Will
County, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S.
138 (1983) might be extended to permit "a general speech
restriction on sitting judges . . . in order to promote the
efficient administration of justice." Jd. at 796 (Kennedy, J.,
concurring).
[30] Assuming that Canon 5(A)(1)(e) constitutes a
restriction on speech rather than conduct because it burdens a
sitting judge's ability to talk to potential political contributors
and endorsers about their contributions and endorsements for
any political cause, we apply strict scrutiny and conclude that
Canon 5(A)(1)(e) is narrowly tailored to serve a compelling
state interest. See White, 536 U.S. at 775. To be narrowly
tailored, the requirement must not “unnecessarily
circumscribe protected expression." /d. (citation omitted).
[{31] The State has a compelling interest in preserving
the appearance of, and the impartiality of, the state judiciary.
See id. at 775-78 (impartiality meaning a "lack of bias for or
13a
against either party to the proceeding,” which is essential to
due process, in contrast to impartiality meaning "lack of
preconception in favor of or against a particular legal view,"
for which the State has no compelling interest). Canon
5(A)(1)(e) is narrowly tailored to meet that interest because it
applies only to conduct which presents the greatest risk to
that interest; it prohibits sitting judges, as opposed to judicial
candidates. from soliciting support for political candidates
and political organizations, and from purchasing tickets to
political dinners or functions. Maine Code of Jud. Conduct
5(A)(1)(e). It is exactly this activity that potentially creates a
bias, or at least the appearance of bias, for or against a party
to a proceeding. If a contribution is made, a judge might
subsequently be accused of favoring the contributor in court.
If a contribution is declined, a judge might be accused of
punishing a contributor in court. Canon 5(A)(1)(e) applies
only to sitting judges and applies equally to all political
solicitations, regardless of content. We conclude that Canon
5(A)(1)(e) is constitutional and that Judge Dunleavy
committed an actionable violation of Canon 5(A)(1)(e).
E. Sanction
[{32] Judge Dunleavy suggests that no disciplinary
measure is appropriate because he, in good faith, believed
that the statute, the Maine Constitution, and the United States
Constitution superseded the Canons. As a test case, he
argues, the Court should not impose sanctions because he has
performed a service for others by forcing resolution of this
issue. He concludes that his only choice was to "interpret the
statute and Constitutions for himself and run or impose a
possibly inapplicable restriction on himself because there was
no other source of guidance." Finally, he suggests that we be
guided in our decision by the Code's preamble, which states
that not every transgression is expected to result in
disciplinary action, and that the Court should apply the Code
reasonably and consider the seriousness of the transgression,
l4a
whether there is any pattern of improper activity, and the
effect of the improper activity upon others in the judicial
system.
[§33] We have said that the purpose of sanctions is to
deter future misconduct by the judge in question and to
discourage others from engaging in similar conduct. Jn re
Cox, 658 A.2d 1056. 1057-58 (Me. 1995). Sanctions restore
and reaffirm public confidence in the judicial system by
communicating the Court's condemnation of judicial
misconduct. Jd. Here, Judge Dunleavy has not engaged in a
pattern of unethical behavior and apparently acted in good
faith and with an honest belief that the Code provisions at
issue were both superseded by statute and unconstitutional.
Moreover, there has been no allegation that Judge Dunleavy's
candidacy compromised his judicial decisions and resulted in
actual prejudice. However, Judge Dunleavy chose to proceed
with his candidacy despite the September 10, 2002, Judicial
Ethics Committee's advisory opinion indicating that, unless
he resigned from the bench, his candidacy would result in a
violation of the Code. The Commission's opinion, however,
provided no guidance as to the constitutionality of section
312. Although Judge Dunleavy could have sought resolution
of this issue in an action for declaratory judgment pursuant to
M.R. Civ. P. 57, we have no reason to believe that he acted in
bad faith when he ignored the Code's restrictions and
followed the statute. Because no public purpose is served in
this case by the imposition of a sanction, we impose none.
The entry is:
Judge Dunleavy erred.
LEVY, J., with whom CLIFFORD, J. joins, concurring.
[{34] I join in the Court's opinion, but write separately to
address in greater depth the application of the separation of
15a
powers doctrine established in Article III of the Maine
Constitution to 4 M.R.S.A. § 312 (Supp. 2002).
[935] The extra-judicial activity of judges of probate is
an area of shared concern of the legislative and judicial
branches of Maine government. The Judiciary's interest
arises from the constitutional grant of "judicial power"
contained in Article VI, section 1, which, at its very essence,
assumes a duty to regulate the extra-judicial conduct of
judges that bears on the integrity and impartiality of the
judicial process. The Legislature's interest arises from its
constitutional authority to enact "all reasonable laws and
regulations for the defense and benefit of the people of this
State," ME. CONST. art. 4, pt. 3, § 1, which has long been
recognized to include legislation governing the qualifications
and activities of candidates for elective office. See Opinion
of the Justices, 623 A.2d 1258, 1262-63 (Me. 1993) ("[W]e
find no implicit basis for restricting the power residing in the
Legislature to enact reasonable qualifications for [the offices
of secretary of state, treasurer, or attorney general].").
[36] Because neither branch can claim an exclusive
textually demonstrable constitutional commitment" on the
subject, State v. Hunter, 447 A.2d 797, 800 n.4 (Me. 1982)
(quoting Baker v. Carr, 369 U.S. 186, 217 (1962)), the
conflict between 4 M.R.S.A. § 312 and Canon 5(A)(3) is not
resolved simply by determining within which of the two
branches the regulatory power over probate judges properly
belongs. ME. CONST. art. III, § 2 ("No person or persons,
belonging to one of these departments, shall exercise any of
the powers properly belonging to either of the others, except
in the cases herein expressly directed or permitted."
(emphasis added)); see also Hunter, 447 A.2d at 800.. When
each branch's authority is necessarily "limited by the
existence of a similar power in [the other]," Bd. of Overseers
of the Bar v. Lee, 422 A.2d 998, 1002 (Me. 1980), principles
of comity must guide our application of Article III.
er
16a
Accordingly, we have enforced statutes designed to regulate
the licensure of attorneys—a subject squarely within the
realm of judicial interest and authority—"as a matter of
comity, but not in surrender of [the judiciary's] inherent
power." Jd. at 1003 (citing In re Feingold, 296 A.2d 492,
496 (Me. 1972) ("Courts . . . may and frequently do honor
implementing legislation, but clearly are not bound to do
so.")).
[37] Legislative enactments that address an issue of
shared concern to the legislative and judicial branches should
be upheld unless an enactment substantially interferes with
the administration of justice or constitutes an unreasonable
burden on judicial authority. See id. at 1003 (citing State ex
rel. Bushman v. Vandenberg, 280 P.2d 344, 348 (Or. 1955))
(invoking the doctrine of inherent judicial power to strike
down a statute authorizing the removal of judges from cases
because the statute was in the area of court procedure and an
undue burden on the judiciary). This compels us to consider
the degree to which 4 M.R.S.A. § 312 interferes with and
burdens the judicial branch. Section 312 runs afoul of the
constitutional separation of powers only if, by its operation,
the Legislature is "unreasonably burdening or substantially
interfering with the judicial branch." State ex rel. Fiedler v.
Senate. 100. 454 N.W.2d 770, 772 (Wis. 1990); see also Lee,
422 A.2d at 1003 (citing Bushman, 280 P.2d. at 348).
[{38] I conclude that section 312 unreasonably burdens
and substantially interferes with the Judicial branch because
active political participation by the judges of probate has a
direct and detrimental impact in an area of primary concern
to the judiciary: the maintenance of the integrity of the
judicial process both in appearance and in fact. As
established in the Preamble to the Code of Judicial Conduct,
the regulation of the conduct of judges is essential to
advancing the public's trust and confidence in the legal
system:
17a
[T]he Maine Code of Judicial Conduct is
founded on the precepts that judges,
individually and collectively, must respect and
honor the judicial office as a public trust and
must strive to maintain and enhance public
confidence in our legal system.
Maine Code of Jud. Conduct Preamble. Canon 5(A)(3)
exemplifies these precepts by ensuring that all judges,
whether appointed or elected, will neither abuse their
positions nor neglect their duties because of aspirations for
higher office. Clements v. Fashing, 457 U.S. 957. 968
(1982); see also Robert M. O'Neil, National Symposium on
Judicial Campaign Conduct and the First Amendment: The
Canons in the Courts: Recent First Amendment Rulings, 35
IND. L. REv. 701, 720 (2001). Numerous jurisdictions have
recognized that reasonable restrictions on political activity by
sitting judges are necessary to maintain the integrity of the
judicial process. See, e.g., Signorelli v. Evans, 637 F.2d 853
(2d Cir. 1980); Morial v. Judiciary Comm'n of La., 565 F.2d
295 (5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978);
Suster v. Marshall, 121 F. Supp. 2d 1141 (N.D. Ohio 2000):
Wagner v. Milwaukee County Election Comm'n, 666 N.W.2d
816 (Wis. 2003); Mitchell v. Judicial Ethics Comm., 2000
ME 83. 749 A.2d 1282: State ex rel. Carenbauer v. Hechler,
542 S.E.2d 405 (W. Va. 2000); In re Fadeley, 802 P.2d 31
(Or. 1990); Judicial Qualifications Comm'n v. Lowenstein,
314 S.E.2d 107 (Ga. 1984); Adams v. Sup. Ct. of Pa., 502 F.
Supp. 1282 (M.D. Pa. 1980).
[{39] The reasonableness of the burden imposed by
section 312 on the Judicial branch must also be considered in
terms of the consequences resulting from our invalidation of
the statute. Section 312 is not essential to advancing the
legislative interest of assuring that every Maine citizen,
including a Judge of probate, who wishes to actively
participate in the political process is able to do so. Section
18a
312 aside, a Judge of probate may unilaterally free her or
himself from Canon 5(A)(3)'s barrier to political participation
by resigning from office or by not seeking reelection. See
Signorelli, 637 F.2d at 858 ("New York's scheme. . .
confronts the prospective candidate with a choice: he may
run for Congress if he is willing to resign his judgeship.").
Because a judgeship is in the nature of a public trust, it is
unreasonable to permit a judge to subjugate that trust to her
or his personal desire to actively participate in the political
process.
("40] For these reasons, I join the Court's conclusion that
section 312 violates Article III of the Maine Constitution.
For the Committee on Judicial Responsibility and
Disability:
H. Cabanne Howard. Esquire (orally)
Executive Secretary and Counsel
Committee on Judicial Responsibility and Disability
P O Box 8058
Portland, ME 04104
For Judge Dunleavy:
James E. Mitchell, Esq. (orally)
Jim Mitchell and Jed Davis, P.A.
86 Winthrop Street
Augusta, ME 04330-5508
[1] Canon 5(A)(3) provides that "[a] judge shall resign from
judicial office upon becoming a candidate for any elective
office, except that a Judge of probate may be a candidate for
reelection while holding that office, provided that the judge
complies with the provisions of section C of this Canon."
Maine Code of Jud. Conduct Canon 5(A)(3).
19a
[2] Canon 5(A)(1)(e) provides that a judge shall not "solicit
funds for, pay an assessment to, or make a contribution to a
political organization or candidate, or purchase tickets for
political party dinners or other functions... ." Jd Canon
S(A)(1)(e).
[3] The complainant also alleged that Judge Dunleavy
violated Canon 5(C)(3) by soliciting contributions "more
than 90 days after the last election for Judge of probate and
more than one year before the next election for Judge of
probate." The Committee did not address this allegation nor
has it presented this allegation as part of the reported
question.
[4] Also on September 10, 2002, the Judicial Ethics
Committee issued an advisory opinion in which it concluded
that a sitting Judge of probate should resign his position
before seeking the office of State Senator because he does
not fall within the existing exception for candidates for
reelection as Judge of probate. Judicial Ethics Comm., 02-5,
18 Me. B.J. 56, 58 (Sept. 10, 2002). We may consider this
advisory opinion when making our decision but are not
bound by it. Mitchell v. Judicial Ethics Comm., 2000 ME 83,
€ 3, 749 A.2d 1282, 1283.
[5S] Judge Dunleavy won the Democratic Party's primary
election for Senate District 2 on June 11, 2002. His name
appeared on the ballot November 5, 2002, but he lost the
general election. During that time, Judge Dunleavy served as
Aroostook County probate judge and continues to do so.
[6] To qualify for public funding, the Clean Elections Act
requires a State senate candidate to collect 150 five-dollar
qualifying contributions. 21-A M.R.S.A. § 1125(3) (Supp.
2002).
[7] Section 9(11) provides:
If after the completion of the Committee's
investigation and hearing, if any, the
Committee determines . . . that in fact the
person has violated the Code as applicable and
that the violation is of a serious nature so as to
warrant formal disciplinary action, the
Committee shall file a report of its findings
with the Supreme Judicial Court together with
a statement of the alleged charges, a
recommendation as to action by the Court, the
transcript of any hearing, and any exhibits
considered by the Committee. Any further
proceedings shall be before the Court.
Rules of the Committee on Judicial Responsibility and
Disability, Order Establishing Committee on Judicial
Responsibility and Disability, § 9(i1) (1978).
[8] Rule 2(I) provides in pertinent part, "If the Committee
decides that a charge has been established, it shall report its
decision to the Supreme Judicial Court and shall provide to
the judge and any complainant written notice of its decision
to report to the Court." /d. Rule 2(1).
[9] Rule 3 provides:
A report to the Supreme Judicial Court shall
include a statement of the alleged charges, a
statement of the Committee's findings of fact
and conclusions of law, and a
recommendation of action by the Court. A
copy of such report shall be provided to the
judge. The report shall be accompanied by the
complete record of the matter before the
Committee including the transcript of any
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hearing and any exhibits considered by the
Committee. Any further proceedings shall be
before the Court.
Id. Rule 3.
[10] Section 312 provides:
As a candidate for the elective office of Judge
of probate or as an elected judge, a person
seeking or holding the office of Judge of
probate may engage in any political activity
that would be lawful for a candidate for any
other elected county office or for an
incumbent elected county official. Any such
judge may hold any other elected office or
offices not made incompatible by the
Constitution of Maine.
4 M.R.S.A. § 312 (Supp. 2002). Apparently, there is no
dispute that this type of activity would be lawful for any
other incumbent elected county official. Although section
312 could be read as applying only to campaigns for probate
judge, thereby avoiding a conflict with the Code, which
permits sitting probate judges to campaign for reelection,
such a reading is not supported by the legislative history.
The Statement of Fact in the relevant legislative document
states:
This amendment clarifies the political
activities in which an elected Judge of probate
may engage, including seeking or holding
other elected offices.
L.Iy. 1609 (116th Legis. 1994) (emphasis added). Moreover.
in support of section 312, on the Senate floor, Senator Carey
explained the perceived problem that section 312 sought to
address as follows:
I would point out that we left out the judges of
probate and they don't have the ability to
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_——
campaign. Jf they happen to be holding a
probate office they really can't campaign if
they are running for another office, they can't
even campaign under the law to get re-elected
to their own post. This would clear up that
matter.
6 Legis. Rec. S-1843 (1994) (emphasis added).
[11] In pertinent part. the preamble states, "The Code sets
forth rules of reason. It is to be applied consistent with
constitutional requirements, statutes, rules of court,
decisional law, and common sense and in the context of all
relevant circumstances." Maine Code of Jud. Conduct
Preamble.
[12] We find no merit in Judge Dunleavy's argument that
section 312 trumps Canon 5(A)(3) because the Legislature
enacted section 312 in 1994, more recently than our
publication of the Code. The general rule that a more recent
statutory enactment controls when in conflict with an earlier
statutory enactment, State v. London, 156 Me. 123, 129, 162
A.2d 150, 154 (1960), does not apply here because our
comparison is not between two statutes. The purpose of this
rule of construction is to give effect to legislative intent by
seeking to determine which version of a statute the
Legislature intended to control. /d. at 126, 162 A.2d at 152.
Here. because our comparison is not between competing
legislative enactments, the rule of construction does not
apply.
[13] See supra note 11.
[14] Article III provides:
23a
Section 1. The powers of this government
shall be divided into 3 distinct departments,
the legislative, executive and judicial.
Section 2. No person or persons, belonging to
one of these departments, shall exercise any of
the powers properly belonging to either of the
others, except in the cases herein expressly
directed or permitted.
ME. COnsT. art. III. While explicit in the Maine
Constitution, this separation of powers doctrine is implicit in
the United States Constitution. Bd. of Overseers of the Bar v.
Lee, 422 A.2d 998, 1002 n.7 (Me. 1980).
[15] Although Estate of McCormick, 2001 ME 24, 765 A.2d
552, does not establish any authority for the Legislature to
control or permit extra-judicial conduct. we have found that
the Legislature has the constitutional power to enact statutes
defining the duties of active retired judges because the
constitution left to the Legislature the duty "to prescribe the
number of Justices constituting the Court, their powers,
emoluments, conditions of retirement. etc." See Packard v.
Whitten, 274 A.2d 169, 176 (Me. 1971). Moreover, the
Legislature through joint action with the governor has the
authority to remove judicial officers during their terms either
by impeachment or address. ME. CONST. art. VI, § 4, art. IX,
§ 5.
[16] Section 2 provides:
No person holding the office of . . . Judge of
probate . . . shall be a member of the
Legislature; and any person holding either of
the foregoing offices, elected to, and accepting
a seat in the Congress of the United States,
shall thereby vacate said office; and no person
shall be capable of holding or exercising at the
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same time within this State, more than one of
the offices before mentioned.
ME. CONST. art. IX, § 2.
[17] Prior to our adoption of the Code. we considered
whether our constitution required a fish and garne
commissioner to resign before running for the State
Legislature and concluded that it did not. See Opinion of the
Justices, 95 Me. 564, 586, 51 A. 224, 232-33 (1901).
However, our decision in that case, that the Constitution does
not contain a "resign-to-run" requirement, does not support
the conclusion that a "resign-to-run" requirement would be
unconstitutional. See also Lesieur v. Lausier, 148 Me. 500,
506, 96 A.2d 585, 588 (1953) (holding that retention of the
incompatible office of municipal judge beyond the
commencement of the term of mayor operates as a
declination or forfeiture of the office of mayor).
[18] Although Judge Dunleavy initially challenges the
constitutionality of the entire Code, he only develops his
challenge with respect to the Canons 5(A)(1)(e), prohibiting
solicitation of funds, and 5(C)(3), restricting solicitation of
funds. Because he has not sufficiently briefed his argument
with respect to the entire Code, and because we determine we
need not consider his challenge to Canon 5(C)(3) for other
reasons, see infra note 19, we only consider the constitutional
challenge to Canon 5(A)(1)(e).
[19] In addition to Canon 5(A)(1)(e), Judge Dunleavy also
specifically challenges the constitutionality of Canon
5(C)(3). See supra note 3. He contends that a finding that he
violated Canon 5(A)(1)(e) requires a finding that he violated
Canon 5(C)(3) because they both involve prohibitions on
solicitation of campaign funds. A finding that Dunleavy
violated Canon 5(A)(1)(e) does not require a finding that he
25a
also violated 5(C)(3). Canon 5(C)(3), dealing with "Political
Conduct for Candidates for Election as Judge of probate,"
applies only to the fundraising activities of candidates for
election or reelection as probate judge. Canon 5(C)(3)
creates a limited exception to the general rule forbidding
solicitation for probate judge candidates by allowing them to
solicit contributions during a certain time period. Dunleavy
was not running for reelection as probate judge; he was
running for State senate, and the Committee did not allege he
violated Canon 5(C)(3). There is no reason for us to consider
the constitutionality of Canon 5(C)(3).
[20] We reject Judge Dunleavy's contention that Canon
5(A)(1)(e) draws a distinction between judicial elections and
other elections. Canon 5(A)(1)(e) applies to all judges and
applies equally to all types of elections. It is not a provision
that applies only to-candidates for judicial office in contrast
to other offices. With the exception of probate judges,
Maine's judges are appointed not elected. 4 M.R.S.A §§ 1, 2,
101, 157, 157-B, 161, 301 (1989 & Supp. 2002).
[21] In Pickering, the Court recognized that "the State has
interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in
general" and that the Court's task is to strike "a balance
between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest
of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees."
Pickering v. Bd. of Educ. of Township of High Sch. Dist. 205,
Will Cty., 391 U.S. 563, 568 (1968).
[22] In Connick, the Court reiterated the necessity of striking
a balance between a citizen's interest in commenting on
26a
matters of public concern and the State's interest, as an
employer, in promoting the efficiency of public services.
Connick, 461 U.S. at 142.
[23] A restriction on expressive conduct, for which the
government's purpose is unrelated to the suppression of
expression (a content neutral restriction), need only satisfy
the less stringent O'Brien fourDfactor test for evaluating
restrictions on symbolic speech. City of Erie v. Pap's A.M,,
529 U.S. 277, 289 (2000) (applying the test set forth in
United States v. O'Brien, 391 U.S. 367 (1968)).
[24] At oral argument, Judge Dunleavy drew our attention to
the very recent United States District Court decision, Spargo
v. New York State Commission on Judicial Conduct, 244 F.
Supp. 2d 72 (N.D.N.Y. 2003), on appeal, stay denied by
Spargo v. N.Y. State Comm'n on Judicial Conduct, 2003 U.S.
Dist. LEXIS 7073 (N.D.N.Y. Apr. 29, 2003). Assuming that
Spargo was correctly decided, we find Spargo
distinguishable because the challenged restrictions in that
case broadly precluded participation in all political activity
for sitting judges and candidates for judicial office. Spargo,
244 F. Supp. 2d at 88. The District Court concluded that -
such a broad restriction was not narrowly tailored to serve the
state's compelling interest in an independent judiciary
because it ignored the fact that those judges had at one time
participated in partisan politics in their own judicial election
campaigns. Jd. Here, Canon 5(A)(1)(e) is more narrowly
tailored because it only prohibits solicitation and the
purchasing of tickets. As explained in note 17, in this case,
we do not consider the other Code provision relating to
political activity.
[25] In Hunter, the separation of powers inquiry was framed
as follows: "Under the Maine Constitution, however, our
27a
inquiry is narrower: has the power in issue been explicitly
granted to one branch of state government. and to no other
branch? If so, article III, section 2 forbids another branch to
exercise that power." 447 A.2d at 800.
28a
APPENDIX B
Judicial Ethics Committee, Advisory Opinion 02-5, 18 Me.
B.J. 56, 57 (Sept. 10, 2002)
Statement of facts
COUNSEL FOR A SITTING Judge of probate wrote the
Committee as follows: "I write to seek an Advisory
Committee opinion from the Committee on Judicial Ethics on
the judge's right to be a candidate for the state senate." A
further request was made by counsel that if the Committee
were to address the issue, whether he could have permission
to brief the issue in more detail. Additionally, counsel cited 4
M.R.S.A. § 312, as well as Article IX § 2 of the constitution
of Maine and suggested that Canon 5(A)(3) of the Maine
Code of Judicial Conduct appeared to be in conflict with the
Maine statute and the constitutional provision.
Discussion
In view of the time elements involved, the Committee has
determined that it will address the issue without the benefit of
briefs.
As cited by counsel, the applicable section of Canon 5 is
5(A)(3). which *58 provides: "A judge shall resign from
judicial office upon becoming a candidate for any elective
office except that a Judge of probate may be a candidate for
re-election while holding that office, provided the judge
complies with the provisions of Section C of this Canon."
Section C of Canon_5 is entitled "Political Conduct of
Candidates for Election as Judge of probate."
In Mitchell v. Judicial Ethics Committee. 2000 Me. 83:
749 A.2d 1282 (May 12. 2000), the Law Court set forth the
area in which the Judicial Ethics Committee shall operate.
The Court went on to hold that the Superior Court in Mr.
Mitchell's appeal did not have jurisdiction because the
29a
Supreme Judicial Court has exclusive original jurisdiction
over all judicial disciplinary matters.
In Judicial Ethics Committee Advisory Opinion No. 98-2,
issued May 1998, a question somewhat similar to that asked
by counsel is addressed; namely, "Since the passage of 4
M.R.S.A. § 312, do Canons 5(A)(1)(f) or 5(C)(3) have any
further validity?" After discussing the issue, the Committee
stated, "It is not the role of this Committee to give an
advisory opinion on the constitutionality of a statutory
enactment. Instead, the Committee will only caution probate
judges that the constitutional issues exist. The prudent judge
will have to seriously consider this issue before taking
actions that will violate the Canons."
In Judicial Ethics Committee Advisory Opinion No. 97-1,
issued June 26, 1997, the Committee addressed a potential
conflict between the Canons and an existing statute. We
quote: "The charge of this Committee does not include
interpretation of criminal laws. The Committee cautioned,
however, judges need to consider the administrative and
statutory criteria affecting receipt of gifts before engaging in
relevant forms of conduct."
This Committee's charge when it was established by an
order of the Supreme Judicial Court, effective November 15,
1993, is to interpret the Canons as they are written and are in
full force and effect.
Conclusion
Accordingly, it is the position of the Committee that from
the facts presented, applying the existing Canons of Ethics,
namely 5(A)(3), the probate judge should resign his judicial
office upon becoming a candidate for election to the state
senate. He does not fall within the exception; 1.e., he is not a
candidate for re-election as Judge of probate.
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In keeping with che foregoing precedent. we are not
considering any contention that Canon 5(A)(3) conflicts with
the statute or with the Constitution.
APPENDIX C
March 10, 2003
The Honorable Leigh I. Saufley
Chief Justice
Supreme Judicial Court
142 Federal Street
P.O. Box 368
Portland, Maine 04112
Re: In the Matter of James P. Dunleavy, Jud-03-1
Dear Chief Justice Saufley:
There is no notice of appeal inasmuch as the actions of
the Committee on Judicial Responsibility and Disability are
just a recommendation and this matter comes before the
Supreme Judicial Court as a matter of Original jurisdiction.
Therefore, there is no bar to new issues, as the case has never
been heard below. Nevertheless. with the exception of issues
of free speech under the First Amendment to the Constitution
of the United States, Judge Dunleavy raised all known issues
before the Committee. See the letter brief from counsel dated
October 21, 2002. The Committee chose to disregard many
of the raised issues. The record does not include evidence
that I discussed the free speech issues with anyone, but I have
enclosed a copy of Opinion 02-5 of the Judicial Ethics
Committee showing that it would not consider such issues. It
was also made clear to me that the Committee on Judicial
Responsibility and Disability would not declare any portion
of the Code unconstitutional, so I did not press that argument.
I will itemize here the issues which will be addressed
before the Supreme Judicial Court. I have not previewed this
32a
list of issues with Cab Howard, who is out of town, but none
will come as any surprise to him.
1.
to
G2
Whether the Code of Judicial Responsibility itself, in
its preamble, requires that 4 M.R.S.A. § 312 control
over inconsistent canons.
Whether 4 M.R.S.A. § 312 controls over inconsistent
canons regardless of the text of the canons.
Whether the Constitution of Maine allows judges to
run for office, thereby overriding the canons.
Whether the funds raised by Judge Dunleavy for the
Clean Elections Fund are proscribed contributions
under the Code.
Whether any of the canons which Judge Dunleavy has
been accused of violating themselves violate the
Constitution of the United States.
Whether the Supreme Judicial Court, in promulgating
the canons, can impose a preemptive remedy of
forced resignation when it would not have the power
to impose the same remedy (removal) as a
disciplinary measure.
Whether, if the canons survive. any discipline is
appropriate for a Judge who may have violated the
text of certain canons believing them, in good faith, to
be superseded by the statutes and the two applicable
constitutions.
As counsel to Judge Dunleavy, I have been advised that
neither the Judicial Ethics Committee nor the Committee on
Judicial Responsibility and Disability deals with any of these
issues, with the possible exception of the first one. Both
committees advised me that their exclusive charge is to
determine whether conduct is inconsistent with the Code.
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Judge Dunleavy does not request a factual hearing before
the Supreme Judicial Court. The facts are not in dispute. He
does, however, challenge the Committee’s report dated
February 17, 2003, where the report, by referring to “the
apparently admitted violations,” suggests that he conceded
violating the Code. He did not admit violations. He only
conceded the undisputed facts. The Committee decided that
the facts constituted violations, a decision with which we
disagree.
Y ours very truly,
James E. Mitchell
Encl: Advisory Opinion 02-5
Cc: James P. Dunleavy, Esq.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.