Rule 2.2. states that, to find an ethical violation, the Committee must

determine that “the judge’s action demonstrates willful or repeated disregard

of explicit requirements of the law.”

To find an ethical violation: “The number of erroneous rulings must be

large enough that it could constitute a pattern. And the [judicial disciplinary

review authority] must also present ‘clear and convincing evidence’ that this

series of erroneous rulings reflects the judge’s ‘virtually habitual,’ ‘arbitrary

and intentional departure from prevailing law’ based on the judge’s

‘disagreement with, or willful indifference to, that law.’” In re Complaint of

Judicial Misconduct, 631 F.3d at 962-63 (citations omitted). “This can generally

be done by pointing to a particular error the judge continued to commit even

after having been repeatedly corrected on appeal.” Id. at 963.

Maine opinions finding judicial misconduct based on a pattern or practice

of violations of established law include In re Kellam, 503 A.2d 1308 (Me. 1986)

(more than forty separate incidents of rude or discourteous conduct in court);

In re Benoit, 487 A.2d 1158 (Me. 1985); and In re Ross, 428 A.2d 858 (Me. 1981).

Impartiality and Fairness

Application of the obligations of impartiality and fairness necessarily

requires recognition that a judge may have to make or write statements critical

or disbelieving of counsel, a party, or a witness in resolving legal or factual

issues presented for decision. Such statements, by themselves, do not establish

ethical violations or warrant an ethics complaint or inquiry. “That a court has

decided disputed issues of law and fact against a party is not, without more,

evidence of lack of impartiality.” Dalton v. Dalton, 2014 ME 108, ¶ 25, 99 A.3d

723 (citing Estate of Lipin, 2008 ME 16, ¶ 6, 939 A.2d 107); see also In re

Martinez‐Catalda, 129 F.3d 213, 219 (1st Cir. 1997) (“A judge is ordinarily

entitled to form a view of the parties that is favorable or unfavorable, so long as

it derives from information in the case; there may be exceptions but they are

‘rare’ indeed.”)

k of impartiality.” Dalton v. Dalton, 2014 ME 108, ¶ 25, 99 A.3d

723 (citing Estate of Lipin, 2008 ME 16, ¶ 6, 939 A.2d 107); see also In re

Martinez‐Catalda, 129 F.3d 213, 219 (1st Cir. 1997) (“A judge is ordinarily

entitled to form a view of the parties that is favorable or unfavorable, so long as

it derives from information in the case; there may be exceptions but they are

‘rare’ indeed.”). “And without a firm foundation upon which accusations of

personal bias, prejudice, or impropriety can stand, baseless charges of

misconduct are patently inappropriate.” Dalton, 2014 ME 108, ¶ 25, 99 A.3d

723.

Adverse information about a party that a judge may acquire in an earlier

proceeding involving a party, or in an earlier stage of a pending proceeding,

does not prevent a judge from presiding in a subsequent proceeding involving

the same party. See State v. Lewis, 1998 ME 83, ¶ 3, 711 A.2d 119; State v.

Rameau, 685 A.2d 761, 763 (Me. 1996) (stating that a judge is not required to

recuse because of opinions based on information acquired in that proceeding

or a prior proceeding, unless the judge’s opinions “display a deep-seated

favoritism or antagonism that would make fair judgment impossible”).

The disqualification standards in the federal statutes are similar to

standards in the ABA Model Code. See United States v. Reynolds, 646 F.3d 63, 74

(1st Cir. 2011) (stating that opinions based on evidence introduced during the

course of a case are “properly and necessarily acquired in the course of the

proceedings,” and are indeed sometimes, as in a bench trial, “necessary to

completion of the judge’s task,” and are not a grounds for recusal); Khor Chin

Lim v. CourtCall, Inc., 683 F.3d 378, 380 (7th Cir. 2012) (stating that “adverse

decisions do not establish [bias] or even hint at bias” and finding bias

contention frivolous); 13D Federal Practice and Procedure § 3542, Grounds for

Disqualification – Bias and Prejudice (3d ed

mes, as in a bench trial, “necessary to

completion of the judge’s task,” and are not a grounds for recusal); Khor Chin

Lim v. CourtCall, Inc., 683 F.3d 378, 380 (7th Cir. 2012) (stating that “adverse

decisions do not establish [bias] or even hint at bias” and finding bias

contention frivolous); 13D Federal Practice and Procedure § 3542, Grounds for

Disqualification – Bias and Prejudice (3d ed. updated April 2015) (discussing

ethical issues related to claims of bias and prejudice pursuant to the federal

recusal statutes, 28 U.S.C. §§ 144, 455 (2014)).

Writing in Liteky v. United States, 510 U.S. 540 (1994), an important

precedent addressing disqualification for partiality issues, Justice Scalia

observed:

First, judicial rulings alone almost never constitute a valid basis for

a bias or partiality motion. In and of themselves (i.e., apart from

surrounding comments or accompanying opinion), they cannot

possibly show reliance upon an extrajudicial source; and can only

in the rarest circumstances evidence the degree of favoritism or

antagonism required (as discussed below) when no extrajudicial

source is involved. Almost invariably, they are proper grounds for

appeal, not for recusal. Second, opinions formed by the judge on

the basis of facts introduced or events occurring in the course of

the current proceedings, or of prior proceedings, do not constitute

a basis for a bias or partiality motion unless they display a deep-

seated favoritism or antagonism that would make fair judgment

impossible. Thus, judicial remarks during the course of a trial that

are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality

challenge. They may do so if they reveal an opinion that derives

from an extrajudicial source; and they will do so if they reveal such

a high degree of favoritism or antagonism as to make fair judgment

impossible. . .

rks during the course of a trial that

are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality

challenge. They may do so if they reveal an opinion that derives

from an extrajudicial source; and they will do so if they reveal such

a high degree of favoritism or antagonism as to make fair judgment

impossible. . . . Not establishing bias or partiality, however, are

expressions of impatience, dissatisfaction, annoyance, and even

anger, that are within the bounds of what imperfect men and

women, even after having been confirmed as federal judges,

sometimes display. A judge’s ordinary efforts at courtroom

administration—even a stern and short-tempered judge’s ordinary

efforts at courtroom administration—remain immune.

Id. at 555-556 (citations omitted).

Concurring in Liteky, Justice Kennedy observed:

[The federal recusal statute] is triggered by an attitude or

state of mind so resistant to fair and dispassionate inquiry as to

cause a party, the public or a reviewing court to have reasonable

grounds to question the neutral and objective character of a judge’s

rulings or findings. I think all would agree that a high threshold is

required to satisfy this standard. Thus, under § 455(a), a judge

should be disqualified only if it appears that he or she harbors an

aversion, hostility or disposition of a kind that a fair-minded person

could not set aside when judging the dispute.

Id. at 557-558.

For an example of a case demonstrating what Justice Scalia characterized

as the “rarest circumstances” when reassignment on remand was ordered

based on a finding of a high degree of favoritism or antagonism when no

extrajudicial source was involved, see Sentis Group, Inc. v. Shell Oil Co., 559 F.3d

888, 897-98, 904-05 (8th Cir. 2009).

not set aside when judging the dispute.

Id. at 557-558.

For an example of a case demonstrating what Justice Scalia characterized

as the “rarest circumstances” when reassignment on remand was ordered

based on a finding of a high degree of favoritism or antagonism when no

extrajudicial source was involved, see Sentis Group, Inc. v. Shell Oil Co., 559 F.3d

888, 897-98, 904-05 (8th Cir. 2009).

Partiality and fairness issues may also arise from a judge’s prior

employment in relation to a pending case. This issue was discussed

thoughtfully in a First Circuit opinion by Justice Souter, In re Bulger, 710 F.3d

42 (1st Cir. 2013), holding that a judge who had worked in the U.S. Attorney’s

Office while events at issue in a case were under investigation would be

required to recuse from hearing the case. In so holding the court looked not to

evidence of actual bias, but to “the existence of facts that would prompt a

reasonable question in the mind of a well-informed person about the judge’s

capacity for impartiality in the course of the trial and its preliminaries.” Id. at

46.

In his ruling, Justice Souter cautioned that disqualification motion

practice does not “confer a veto power on the assignment of his trial judge to

any heckling defendant who merely levels a charge that implicates a judge’s

defensive or vicariously defensive reaction. The recusal standard must be more

demanding because ‘the disqualification decision must reflect not only the need

to secure public confidence through proceedings that appear impartial, but also

the need to prevent parties from too easily obtaining the disqualification of a

judge, thereby potentially manipulating the system for strategic reasons,

perhaps to obtain a judge more to their liking.’” Id. at 47 (quoting In re Allied‐

Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989)).

Addressing a similar issue, a U.S. District Court Judge observed that a

party’s criticism of a judge should not require recusal:

parties from too easily obtaining the disqualification of a

judge, thereby potentially manipulating the system for strategic reasons,

perhaps to obtain a judge more to their liking.’” Id. at 47 (quoting In re Allied‐

Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989)).

Addressing a similar issue, a U.S. District Court Judge observed that a

party’s criticism of a judge should not require recusal:

Newspaper articles criticizing a judge’s performance are not

unusual. More important, a party cannot create a basis for

recusal by first criticizing a judge and then claiming the judge

is biased as a result. It is well settled that prior written attacks

upon a judge are legally insufficient to support a charge of bias

or prejudice on the part of the judge toward the author of such

a statement. Forcing judges to recuse because a litigant has

criticized the judge would give litigants veto power over

judges and allow forum shopping. It would also stretch the

recusal statutes far beyond their intended purpose and

potentially force disqualifications in a large number of cases.

Salt Lake Tribune Publ’g Co. v. AT&T Corp., 353 F. Supp. 2d 1160, 1176 (D. Utah

2005) (footnotes omitted) (citations omitted). See also Rodgers v. Knight, 781

F.3d 932, 943 (8th Cir. 2015) (fact that plaintiff’s counsel had filed judicial

conduct complaint against judge in previous, unrelated litigation, or that

federal district judge had formerly served as municipal judge in defendant city

did not establish that the judge’s impartiality in pending matter might

reasonably be questioned).

mitted) (citations omitted). See also Rodgers v. Knight, 781

F.3d 932, 943 (8th Cir. 2015) (fact that plaintiff’s counsel had filed judicial

conduct complaint against judge in previous, unrelated litigation, or that

federal district judge had formerly served as municipal judge in defendant city

did not establish that the judge’s impartiality in pending matter might

reasonably be questioned).

The Law Court adopted a similar position in State v. Murphy, 2010 ME

140, ¶ 18, 10 A.3d 697, rejecting claims that a judge should have recused

because the defendant had harshly criticized a judge in court and filed lawsuits

against the judge. See also Advisory Committee on the Maine Code of Judicial

Conduct, Opinion 91-1 (concluding that a judge is not required to recuse in a

case when one of the parties has filed a complaint against the judge with the

Committee).

In addition to these 2015 Advisory Notes, judicial ethics issues relating to

disqualification claims and allegations of partiality are addressed in detail in

Rules 2.11 and 3.11 and the Advisory Notes to those Rules.

1993 Advisory Committee’s Notes

The 1993 Advisory Committee’s Notes to Canon 3(B) paragraphs (2) and

(8) state:

For 3(B)(2):

Canon 3B(2) requires a judge both to observe the law and to

be professionally competent. In Matter of Ross, 428 A.2d 858

(Me. 1981), the Supreme Judicial Court found violations of the

identical provision of Maine Code (1974), Canon 3A(1), when “the

respondent willfully disregarded the requirements of the law” by

imprisoning a defendant for nonpayment of a civil forfeiture. In the

same case, the Court found additional violations of former Canon

3A(1) where the judge had caused traffic infraction complaints

against personal acquaintances to be “filed,” personally lecturing

the defendants instead of trying them, and had continued two OUI

cases against an individual for six months, one before sentencing,

the other without hearing, then entered judgments of not guilty in

both

case, the Court found additional violations of former Canon

3A(1) where the judge had caused traffic infraction complaints

against personal acquaintances to be “filed,” personally lecturing

the defendants instead of trying them, and had continued two OUI

cases against an individual for six months, one before sentencing,

the other without hearing, then entered judgments of not guilty in

both. The Court also cited the judge’s oath under Article IX, § 1, of

the Maine Constitution “to administer the law, not his personal

philosophy.” Id. at 865.

In Matter of Benoit, 487 A.2d 1158 (Me. 1985), the Court

established the standard of the “reasonably prudent and

competent judge.” Conduct violates former Canon 3A(1) if such a

judge “would consider that conduct obviously and seriously wrong

in all the circumstances.” Id. at 1163. Applying this standard, the

Court found that incarceration and imposition of public service

obligations in civil OUI cases and pretrial detention of an

unrepresented juvenile without hearing were violations of the

Canon because there was no legal authority or the actions were

plainly contrary to existing law. Incarceration of a civil debtor for

nonpayment under a payment order and denials of stays of

sentence pending appeal were found to be errors of law but not

Code violations, where the law was unclear or unsettled. Id. at

1164-70. See also Matter of Cox, 553 A.2d 1255 (Me. 1989) (judge’s

involvement in plea negotiations contrary to explicit provision of

M.R. Cr. P. 11(e) violated former Canon 3A(1)).

For 3(B)(8):

l debtor for

nonpayment under a payment order and denials of stays of

sentence pending appeal were found to be errors of law but not

Code violations, where the law was unclear or unsettled. Id. at

1164-70. See also Matter of Cox, 553 A.2d 1255 (Me. 1989) (judge’s

involvement in plea negotiations contrary to explicit provision of

M.R. Cr. P. 11(e) violated former Canon 3A(1)).

For 3(B)(8):

Canon 3B(8) is intended to assure that the “interests in

fairness, efficiency and economy are properly balanced.” ABA

Model Code (1990), Committee Note to Section 3B(8). In attaining

the proper balance, “a judge must demonstrate due regard for the

rights of the parties to be heard and to have issues resolved without

unnecessary cost or delay

. . . . A judge should encourage and

seek to facilitate settlement, but parties should not feel coerced

into surrendering the right to have their controversy resolved by

the courts.” ABA Model Code (1990), Commentary to Section

3B(8). Promptness requires diligence, punctuality, and

expeditiousness on the part of the judge and that the judge “insist

that court officials, litigants and their lawyers cooperate with the

judge to that end.” Id. In Matter of Barrett, supra, 512 A.2d at 1034,

the Court found violations of the virtually identical provisions of

former Canon 3A(5), where a probate judge deliberately delayed

decision in two contested matters “out of a belief that he knew best

what would advance harmony among the litigating parties before

his court,” thus administering “his own personal brand of justice.”

In a third matter, a six-month delay without more, while not

condoned by the Court, was held not to be a violation standing

alone. Id.

Bias, Prejudice, and Harassment

(A)

A judge shall perform the duties of judicial office, including

administrative duties, without bias or prejudice.

y among the litigating parties before

his court,” thus administering “his own personal brand of justice.”

In a third matter, a six-month delay without more, while not

condoned by the Court, was held not to be a violation standing

alone. Id.

Bias, Prejudice, and Harassment

(A)

A judge shall perform the duties of judicial office, including

administrative duties, without bias or prejudice.

(B)

A judge shall not, in the performance of judicial duties, by words or

conduct manifest bias or prejudice for or against an individual or a party,

or engage in harassment, including but not limited to bias, prejudice, or

harassment based upon, race, sex, gender, gender identity, religion,

national origin, ethnicity, disability, age, sexual orientation, marital status,

socioeconomic status, or political affiliation, and shall not permit court

staff, court officials, or others, while subject to the judge’s direction and

control, to do so.

(C) A judge shall require lawyers in proceedings before the court to

refrain from manifesting bias or prejudice, or engaging in harassment,

based upon attributes including but not limited to race, sex, gender,

gender identity, religion, national origin, ethnicity, disability, age, sexual

orientation, marital status, socioeconomic status, or political affiliation

against parties, witnesses, lawyers, court staff, or others.

(D) Sections B and C of this Rule do not preclude judges or lawyers

from making legitimate reference to the listed factors or other similar

factors when they are relevant to an issue in a proceeding.