In re Dunleavy

• Decision Date: 22 October 2003
• Parties: In re Honorable James P. DUNLEAVY.
• Court: Maine Supreme Court

838 A.2d 338

2003 ME 124

In re Honorable James P. DUNLEAVY.

Supreme Judicial Court of Maine.

Argued: June 10, 2003.

Decided: October 22, 2003.

H. Cabanne Howard, Asst. Professor (orally), University of Maine School of Law, Portland, for the Committee on Judicial Responsibility and Disability.

James E. Mitchell, Esq. (orally), Jim Mitchell and Jed Davis, P.A., Augusta, for Judge Dunleavy.

Panel: CLIFFORD, and RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

Majority: RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

Concurrence: CLIFFORD, and LEVY, JJ.

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)¹ and 5(A)(1)(e)² 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.³ Shortly thereafter, the Committee notified Judge Dunleavy of the complaint.⁴ Judge Dunleavy responded and admitted that he was then running for the State Senate while holding office as probate judge⁵ and that he had solicited 150 five-dollar contributions to qualify for public campaign funding from the Maine Clean Elections Fund.⁶ 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.

[¶ 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,⁷ and Committee Rules 2(I)⁸ and 3,⁹ 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 Maine 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."); In re Ross, 428 A.2d 858, 868 (Me.1981) ("[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."). 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 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

[¶ 13] "[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. In 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." Id. 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)¹⁰ 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 requirements¹¹ and because section 312 was enacted more recently than Canon 5(A)(3).¹² 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) 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."¹³ Because we...