In re Catherine Connors: Mild Irony & Inherent Appearance of Impropriety.
Posted by Ed Folsom, November 17, 2024.
Last month, a news story broke about Maine’s Committee on Judicial Conduct recommending to the Maine Supreme Judicial Court (SJC) that they should sanction Supreme Court Justice Catherine Connors for an alleged violation of the Maine Code of Judicial Conduct. This past week, due to flaws in the pleadings the Maine Law Court sent the matter back — “remanded” it — to the Committee on Judicial Conduct without acting on it. Two Supreme Court justices – Chief Justice Stanfill and Associate Justice Mead — decided to have nothing to do with the matter and recused themselves. Three other active associate justices – Horton, Lawrence, and Douglas — and two active retired associate justices – Hjelm and Humphrey – participated in the remand order.
If the Committee resubmits the matter to the SJC, is it possible for the justices to consider it without violating the same ethical rule that the Committee alleges Connors violated?
To promote transparency, the SJC has set up a web page, titled In re Catherine Connors, which contains links to all documents filed in the Connors matter.
As I previously blogged, the Committee suggested that Justice Connors violated Judicial Cannon 2, Rule 2.11(A). That rule provides in pertinent part, “[A] judge shall disqualify himself or herself in any proceedings in which the judge’s impartiality may be questioned.”
In essence, the Committee asserted that Connors participated in decisions that reversed Maine mortgage foreclosure precedent – precedent that was set in cases in which Connors participated on the losing side as a litigant and amicus, respectively, when she was an attorney in private practice. Connors knew that people questioned whether it was appropriate for her to participate in deciding the recent cases as a Justice on the SJC because, among other things, she was specifically asked whether she would recuse herself in such cases during her judicial confirmation hearings for the associate justice job.
Although Connors sought advice from the Maine Judicial Ethics Advisory Committee before she participated in the decisions, and although the Ethics Advisory Committee advised Connors that they did not see a conflict of interest that would interfere in her participation, the Committee on Judicial Conduct has asserted that Cannon 2, Rule 2.11(A), required Connors to recuse herself because her impartiality may reasonably be questioned.
Back when Connors was an attorney arguing her position in the mortgage foreclosure cases at issue, the Law Court ruled that if a lender bringing a foreclosure action made certain document errors those errors were fatal and final. The borrower got to keep the house without paying the lender. In the more recent cases in which Connors is accused of violating Judicial Cannon 2, Rule 2.11(A), the Law Court reversed its previous position. A lender is now allowed to cure such document defects and pursue foreclosure.
Why did the Law Court send the ethics violation matter back to the Committee on Judicial Conduct without taking any action? In what might be seen as mildly ironic, they did it because the Committee on Judicial Conduct failed to meet the pleading requirements for presenting such matters to the Law Court. The documents the Committee submitted were flawed.
The Court’s order of remand states:
Because the Court may act on a judicial ethics complaint only if the Committee submits a report that includes a recommendation of specific formal disciplinary action and otherwise fulfils the requirement of Rule 3, as a ministerial order we remand this matter to the Committee to enable the Committee to decide whether to recommend specific disciplinary action in this instance and, if so, to submit a report that fully satisfies the requirements of Rule 3.
In other words, because the report that the Committee submitted to the SJC did not recommend a specific formal disciplinary action but instead merely “suggests that [Count One, alleging a violation of Cannon2, Rule 2.11(A)] be considered against Justice Connors,” and because the Committee did not include “a statement of [its] findings of fact and conclusions of law” as required by the controlling Rule 3, the matter was not properly before the Court. The Court therefore lacks authority to act on it.
The flaws in the Committee’s pleadings are not fatal and final. They may be cured. The Committee might decide to submit a new report that contains a specific recommendation of disciplinary action and that otherwise meets the requirements of governing procedural Rule 3.
But the remand order does invite the Committee to consider taking the matter elsewhere instead of resubmitting it to the SJC. The remand order points out that because the Court in no way “directly or indirectly adjudicate[es], address[es], or otherwise reach[es] the merits of the matter,” and because the Court “do[es] not retain jurisdiction over the Connors Report and therefore do[es] not impose any limitation on the Committee’s proceedings after remand,” the Committee is free to explore other avenues to address the matter.
In a footnote, the remand order states:
We note that although the existing Rules of the Committee on Judicial Conduct appear to call for the Supreme Judicial Court to adjudicate all judicial discipline matters reported by the Committee, including matters involving members of the Court itself, many other states have adopted alternatives that do not put members of the state supreme court in the position of having to adjudicate ethics complaints against immediate colleagues. We do not rule out exploration of such alternatives.
This raises a very important question: Is it even possible for the Maine Supreme Judicial Court to decide the merits of the judicial ethics breach alleged against Justice Connors without the justices who participate in the decision violating the same ethical rule that the Committee alleges Connors breached? After all, that rule requires recusal “in any proceeding in which the judge’s impartiality may be reasonably questioned.”
In its now remanded report to the SJC, the Committee argued:
The test to be applied, and that which [Justice Connors] should have, but did not, appropriately consider, was whether a reasonable person, might think there was the appearance of impropriety given her past history of involvement in foreclosure cases on behalf of banking interests and actual involvement as an advocate for the banking interests in Pushard.
Under this test, aren’t the justices of the SJC required to ask themselves whether a reasonable person might perceive an appearance of impropriety if they decide the ethics matter against Connors, given that they are her immediate colleagues on the SJC and that some of them participated with her in the same decisions in which her participation allegedly violated Cannon 2, Rule 2.11(A)?
Regardless whether SJC justices might think they can be fair and impartial in rendering a decision in the Connors matter, isn’t there necessarily room for a reasonable person to detect an appearance of impropriety? Is the process that Maine prescribes for determining whether a justice of the SJC has committed a serious ethical breach that warrants formal disciplinary action inherently flawed? Doesn’t it always require other SJC justices to decide such matters in circumstances where the impartiality of the deciding justices might reasonably be questioned?
If that’s the case, doesn’t judicial ethics Cannon 2, Rule 2.11(A), always require the justices of the SJC to recuse in such matters?
What a mess…
