In re Nadeau

• Citation: 914 A.2d 714,2007 ME 21
• Parties: In the Matter of Robert M.A. NADEAU.
• Decision Date: 30 January 2007
• Court: Supreme Judicial Court of Maine (US)

914 A.2d 714

2007 ME 21

In the Matter of Robert M.A. NADEAU.

Supreme Judicial Court of Maine.

Argued: November 29, 2006.

Decided: January 30, 2007.

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Cabanne Howard, Esq. (orally), Portland, for Committee of Judicial Responsibility and Disability.

Stephen B. Wade, Esq. (orally), Skelton, Taintor & Abbott, P.A., Auburn, for respondent.

Panel: SAUFLEY, C.J., and DANA, CALKINS, LEVY, and SILVER, JJ.

PER CURIAM.

[¶ 1] The Committee on Judicial Responsibility and Disability asserts that the York County Judge of Probate Robert M.A. Nadeau violated Canon 5(B)(2)(c) of the Maine Code of Judicial Conduct by knowingly misrepresenting facts concerning two of his opponents in the 2004 Democratic Primary. We agree with the Committee in part, but reserve judgment on sanctions until the parties have had sufficient time to brief the issue.

I. BACKGROUND

[¶ 2] Judge Nadeau currently sits as Judge of the York County Probate Court, a position he has held since his initial election in November 1996, having been re-elected in 2000 and 2004. In June 2004, the Committee received complaints from four candidates opposing Judge Nadeau in the Democratic primary: Donna A. Bailey, Edward L. Caron Jr., Ronald R. Coles, and Susan T.J. Cyr (hereafter collectively referred to as the candidates). The complaints concerned an advertisement placed by Judge Nadeau in several local publications approximately one week before the primary. The advertisement included commentary on each of the candidates in a series of short paragraphs that appeared under the heading "It's not fun to be upfront about those candidates, but it is even worse to be duped. The voters deserve to know about them." The candidates alleged that Judge Nadeau knowingly misrepresented their qualifications in violation of Canon 5(B)(2)(c), which provides that a candidate for appointment to judicial office shall not "knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent." M.Code Jud. Conduct I(5)(B)(2)(c).

[¶ 3] After an initial investigation, the Committee sought a response from Judge Nadeau. See M.R. Comm. Jud. Responsibility & Disability 1(B)(iii).¹ Judge Nadeau denied making any knowing misrepresentations, and made his own charges of ethical violations against three of the four candidates.² The Committee concluded that a hearing was necessary to determine whether Judge Nadeau had violated the Code. See M.R. Comm. Jud. Responsibility & Disability 2(A).³ Judge Nadeau again denied the allegations and questioned the need for a hearing.

[¶ 4] At the hearing, the Committee heard testimony from Bailey, Cyr, and Nadeau. Following deliberations, the Committee dismissed all but three allegations against Judge Nadeau. The surviving allegations were that Judge Nadeau knowingly made misrepresentations of facts in the advertisement by stating: (1) that Bailey was "[o]nce seen in a video, inappropriately pulling an extremely frightened, screaming toddler from his grandparents' arms to take the toddler to her car for a forced visit with the child's allegedly neglectful or abusive parent"; (2) that Caron had "[h]andled less than a handful of cases & has not tried a case in the Probate Court during the past 8 years"; and (3) that Caron "claim[ed] that he will offer legal advice to Veterans, even though judges can't do that under Maine law, Title 4."⁴ On July 11, 2005, the Committee reported these three matters to the Maine Supreme Judicial Court pursuant to M.R. Comm. Jud. Responsibility & Disability 2(I).⁵

[¶ 5] By order of the Chief Justice, the matter was assigned to a single Justice of the Court (Clifford, J.) to conduct a de novo evidentiary hearing and to report his findings to us. See In re Ross, 428 A.2d 858, 860 (Me.1981). A hearing was held before the assigned Justice during which the parties raised three issues of law, including: the meaning of the word "knowingly" in Canon 5(B)(2)(c), the standard of proof in judicial disciplinary matters, and the scope of protected political speech under the First Amendment to the United States Constitution. The Justice entered factual findings and reserved the legal issues for us to consider.

[¶ 6] The Justice found, by clear and convincing evidence, that the comments concerning Bailey were misrepresentations of fact made by Judge Nadeau, in part knowingly, and in part with reckless disregard for the truth. The Justice also found by clear and convincing evidence that the statements concerning Caron's probate experience were misrepresentations of fact made with reckless disregard for the truth but without actual knowledge of their falsity. Lastly, the Justice found that the statement concerning Caron's advertisement targeting Veterans was a misrepresentation of fact made by Judge Nadeau without reckless disregard for the truth or actual knowledge of its falsity. We consider in turn the three legal issues pertinent to this proceeding and then the three individual charges of the Committee.

II. DISCUSSION

A. Introduction

[¶ 7] The Maine Constitution provides that the "judicial power of this State shall be vested in the Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish." ME. CONST. art. VI, § 1. Inherent in the judicial power vested in this Court is 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 courts, and to discipline judges for their acts . . . .);" In re Ross, 428 A.2d at 868 ("[I]t is incumbent upon the Supreme Judicial Court to exercise that part of the judicial power involved in prescribing the conduct of judges and imposing discipline upon them for misconduct."). This regulatory authority extends to the conduct of judges of probate. See generally In re Barrett, 512 A.2d 1030 (Me.1986).

[¶ 8] The Court's regulatory control over the State's judiciary has been codified in 4 M.R.S. § 1 (2006), which provides in relevant part:

The Supreme Judicial Court shall have general administrative and supervisory authority over the Judicial Department and shall make and promulgate rules, regulations and orders governing the administration of the Judicial Department.

In addition, the Legislature has expressly granted the Supreme Judicial Court exclusive authority to superintend "all inferior courts for the prevention and correction of errors and abuses where the law does not expressly provide a remedy" and to prescribe the general rules of court. 4 M.R.S. §§ 7-8 (2006).

[¶ 9] Pursuant to this constitutional and statutory authority, the Court has promulgated the Maine Code of Judicial Conduct. The Code of Judicial Conduct "is founded on the precepts that judges . . . must respect and honor the judicial office . . . and must strive to maintain and enhance public confidence in our legal system," and is "intended to establish basic standards to govern the conduct of all Maine judges." M.Code Jud. Conduct pmbl. Canon 5(B)(2)(c), made applicable to probate judge elections by Canon 5(C)(1),⁶ prohibits a candidate for judicial office from knowingly misrepresenting the qualifications or other facts concerning an opponent.

[¶ 10] "[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. We decide each issue of law in accordance with our original jurisdiction. In re Benoit, 487 A.2d at 1161 n. 1. Similarly, when a matter of judicial discipline is brought to this Court, we afford no deference to the Committee's report, but rather undertake a de novo review of the factual record, here through a single Justice sitting as a Referee⁷ and when his factual findings involve credibility determinations we defer to those findings unless they are clearly erroneous. Bd. of Overseers of the Bar v. Dineen, 481 A.2d 499, 502 (Me.1984). The Committee bears the burden of proving the allegations contained in its report. M.R. Jud. Responsibility & Disability 2(H); In re Cox, 553 A.2d 1255, 1255 (Me.1989).

B. The Meaning of "Knowingly" in Canon 5(B)(2)(c)

[¶ 11] The Maine Code of Judicial Conduct Canon 5(B)(2)(c) provides that a candidate for appointment to judicial office shall not "knowingly misrepresent . . . [a] fact concerning . . . an opponent." M.Code Jud. Conduct I(5)(B)(2)(c).

[¶ 12] The Committee asks the Court to interpret the word "knowingly" to encompass a reckless disregard for the truth, thereby imposing upon judicial candidates a duty to undertake some minimal degree of investigation into the truth of a statement prior to making it.⁸ In support of its argument, the Committee contends that a candidate for judicial office should not be allowed to escape culpability under the Code by willful ignorance. We decline the Committee's invitation.

[¶ 13] Because the word "knowingly" is defined in the Code and because its definition is plain and unambiguous, we are not free retroactively to give the word a different meaning. "Knowingly" is defined in the Code of Judicial Conduct as "denot[ing] actual knowledge of the fact in question." M.Code of Jud. Conduct II(3)(J). The word "knowingly" does not encompass liability for reckless disregard for the truth. See generally, Merrill v. Sugarloaf Mountain Corp., 2000 ME 16, ¶ 11, 745 A.2d 378, 384 ("The most fundamental rule of statutory construction is the plain meaning rule. When statutory language is plain and unambiguous, there is no need to resort to any other rules of statutory construction."). Additionally, were it the desire of this Court to expand the definition of "knowingly" to encompass reckless disregard for the truth, we need only amend the Canon. To date, we have not done so.⁹ Furthermore, general considerations of fairness and due...