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In Re Catherine Connors–Proposed New Rules, but What Does the Rule Mean?

In Re Catherine Connors–Proposed New Rules, but What Does the Rule Mean?

Posted by Ed Folsom, January 13, 2025.

(Photo: Robert F. Bukaty, AP, April 12, 2018, file photo from Maine Public)

The procedural background.

When I last blogged on the pending judicial ethics complaint against Maine Supreme Court Justice Catherine Connors, it was mid-November and the Maine Supreme Judicial Court had just remanded the report and recommendations of the Committee on Judicial Conduct back to the Committee for failing to meet the pleading requirements of the governing rules. When such matters are properly pleaded, the existing rules require them to be decided by the Supreme Judicial Court even when the misconduct at issue was allegedly committed by a Justice of that same Court. When the Court remanded  the initial report to the Committee, the remand order invited the Committee to consider alternatives to having the Supreme Judicial Court decide the matter against one of its own.

On December 16, the Committee filed an amended report recommending that the Supreme Judicial Court should not decide the matter, but that it might instead be decided by a panel of Superior Court justices or out-of-state judges. In fact, it’s hard to see how the justices of the Supreme Judicial Court could decide Connors’ case without being accused of violating the same ethics rule regarding appearances of impropriety that Connors allegedly violated.

On December 31, Justice Connors filed a reply to the amended report, arguing among other things that the matter should be decided by the Supreme Judicial Court.

On January 9, the Supreme Judicial Court invited public comment on a proposed set of amendments to the Order Establishing the Committee on Judicial Conduct, the Maine rules for the Committee on Judicial Conduct, and the rules for judicial disciplinary proceedings. The proposed amendments would add language providing that a proceeding against a Supreme Judicial Court Justice is to be decided by a panel consisting of the 4 most senior members of the District Court and 4 most senior members of the Superior Court, as follows:

If a report by the Committee pursuant to Rule 3 involves a justice of the Supreme Judicial Court, the other members of the Supreme Judicial Court shall not participate. The Executive Clerk of the Supreme Judicial Court shall forward the report to the Chief Justice of the Superior Court and the Chief Judge of the District Court for them to convene the panel that decides the matter. The panel shall consist of the four most senior active judges of the District Court and the four most senior active justices of the Superior Court who are available to serve. Seniority shall be based on time in active service as a member of the judge’s or justice’s current court, not on total service in the Judicial Branch.

The deadline for public comment is January 23, 2025, at 4:00 p.m., so anyone who wants to weigh-in on the proposed rule changes only has until then to do it. More than likely, public comment isn’t going to change the course of events. But it does look like some members of the legal community are poised to suggest that non-lawyer members of the public should be appointed to the panel of deciders.

What is Justice Connors’ alleged violation of the ethics rules?

The Committee on Judicial Conduct argues that Connors should have recused herself from two Maine Supreme Judicial Court cases that she participated in as a Supreme Court Justice, because her participation “would cause a reasonable person to question her impartiality.” Canon 2, Rule 2.11(A) of the Maine Code of Judicial Conduct states in pertinent part: “A judge shall disqualify or recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned…” Here is how the Committee frames its argument, in light of Connors’ pre-judge experience as an attorney representing banks and, in particular, her having been on the losing side of a foreclosure issue that she helped reverse by deciding the cases at issue:

Justice Connors was required to follow the requirements of Canon, 2, Rule 2.11 (A) to consider whether her impartiality might be questioned from the perspective of a reasonable person. Therefore, it does not matter whether Justice Connors subjectively thought she could be fair or impartial despite participating in foreclosure appeals where she had repeatedly taken strong positions on behalf of banking interests against the interests of homeowners.

How could her impartiality not be reasonably questioned given that the Law Court in Finch was to decide if the Pushard case, which Attorney Connors had previously lost on appeal, should be reversed? The test to be applied, and that which she 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.

Who is correct about the meaning of Cannon 2, Rule 2.11(A) — the judges, lawyers, and public members of the Committee on Judicial Conduct or the judges, lawyers, and public members of the Advisory Committee on Judicial Ethics?

In her response, Justice Connors points out that she solicited the opinion of the Advisory Committee on Judicial Ethics in advance of her decisions and that they advised her they did not see grounds for recusal. The role of the Advisory Committee on Judicial Ethics is to “render[] formal and informal advisory opinions relating to the ethical and professional conduct of Maine judicial officers.” In response to Justice Connors’ request for its opinion as to whether she was required to recuse, The Advisory Committee informed Connors’ that it unanimously concluded she was not.

In this regard, the Judicial Conduct Committee complains that, “Nowhere in the decision of the Maine Judicial Ethics Committee was the term or concept of the appearance of a conflict addressed.” But I think the Advisory Committee did address the concept of the appearance of a conflict.

Justice Connors’ query to the Advisory Committee begins this way: “Rule 2.1 requires recusal in any proceeding in which the judge’s impartiality ‘might reasonably be questioned’”… The Advisory Committee Chair answered, in pertinent part, by telling Connors that because she never represented any of the parties to the pending litigation and because her former law firm had not entered an appearance for any of those parties:

The sole justification for recusal would be either that that (i) the legal issues raised in these cases are ones in which justice Connors advocated a position representing a private client; or (ii) she previously represented an amicus in that same capacity in one of those earlier cases.

On the first point, the fact that a lawyer advocated a position for a client does not disqualify that lawyer from considering the same legal issue as a judge. If the law were otherwise, presumably former prosecutors or defense counsel could not hear criminal cases or, as was the case in Hoke County, a former civil rights lawyer could not hear such cases on the bench.

As for the second point, we agree with Justice Earle’s analysis that representation of an amicus is qualitatively different than representation of a litigant. The fact that a client is serving a public role as a ‘friend of the court’ by seeking to bring to the court’s attention some of the broader implications of pending litigation ought not disqualify the lawyer who previously represented that client from subsequently considering purely legal issues raised in separate litigation before her as a judge. Indeed, were the law otherwise, it could discourage the filing of amicus briefs, which would be a disservice both to the courts and to the public.

Isn’t this a reflection of the Advisory Committee having considered the appearance of impropriety issue? After it determined that Connors had no actual conflict of interest of a type that Rule 2.11(A) more specifically details as requiring recusal, the Advisory Committee addressed the more general “impartiality might reasonably be questioned”/appearance-of-impropriety standard as grounds for recusal. The Advisory Committee saw this broad ground for recusal as only potentially arising from two possible sources in Connors’ case: (1) that the legal issues involved (including the precedent she might be involved in overturning) were issues on which Justice Connors had advocated a position while representing a private client (lender or Bank); or (2) that Justice Connors previously wrote an amicus brief that advocated on behalf of a private client in a case that involved the same legal issues as those in the pending cases. And then the Advisory Committee concluded that neither ground required Justice Connors to recuse.

Granted, in rejecting these potential grounds the Advisory Committee did not expressly find that Connors’ impartiality could not reasonably be questioned or that no reasonable person could perceive an appearance of impropriety. Instead, the Advisory Committee based its conclusion on the negative implications of requiring recusal in the circumstances: Former prosecutors and defense attorneys could not hear criminal cases; former civil rights attorneys could not hear civil rights cases; and an attorney who wrote an amicus brief could not later be allowed to sit as a judge in a matter that decides the same issues. In other words, in vernacular, “Rule 2.11(A) can’t possibly require recusal in such circumstances. That would be nuts!”

Justice Connors’ response to the Judicial Conduct Committee’s Amended Report picks up on this theme, asserting that any rule that would bar a judge from sitting on a case due to prior experience advocating as a lawyer, on a client’s behalf, on the same legal issues, “runs the risk that litigants will seek to weaponize recusal by using the judges’ prior legal advocacy as a basis of disqualification.” Connors’ response also asserts:

Such a rule would suggest that an attorney’s participation in the representation of a party as it relates to legal issues necessarily provides a reasonable basis for an imputation of bias to counsel by identifying them with the merits of their client’s case or cause. Attorneys represent multiple parties, and often appear on multiple sides of issues. It is improper—and does not appear to have any precedential basis in Anglo-American jurisprudence—to find that attorneys’ representation of a party regarding a particular issue in separate and distinct litigation disqualifies them from participating as a judge in subsequent litigation involving the same or similar legal issues.

But the plain language of Canon 2, Rule 2.11(A)’s relevant part does not appear to allow the negative implications of applying the rule to control whether the rule applies. As the Committee on Judicial Conduct points out, the relevant portion of the rule plainly states, “A judge shall disqualify or recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Unless a judge’s prior advocacy on behalf of a client (absent acknowledged personal bias or public statements indicating such bias) categorically cannot provide reasonable grounds to question the judge’s impartiality, then such prior advocacy can provide reasonable grounds to question the judge’s impartiality — damaging implications be damned. This is the position that the Committee on Judicial Conduct appears to take.

Does Rule 2.11(A) require a judge who used to be a defense lawyer or a prosecutor to recuse from criminal cases? Does the rule require judges who used to be civil rights lawyers to recuse from civil rights cases? Does the answer turn on whether the particulars of the judge’s background as an attorney advocating on behalf of clients might reasonably cause someone to question the judge’s impartiality, or is the disqualification categorical? If it depends on the particulars, what are the factors that make advocacy on behalf of a client reasonably suspect versus the factors that don’t?

If Rule 2.11(A) does require recusal in such cases, and if the implications are a problem, maybe courts should be more careful about adopting ethical prohibitions so sweeping that they plainly appear to lend themselves to such problems in the first place.

The reasons for this rule of judicial conduct are to keep things clean and to foster a public perception that the courts run a clean game. Recent history demonstrates that broad, sweeping rules or laws that implicate the conduct of too many, allowing the broad exercise of discretion over whom they will be applied to and when, do not foster public faith in the institutions that wield the discretion. For a detailed discussion of the topic, check out U.S. Supreme Court Justice Neil Gorsuch’s book, Over Ruled: The Human Toll of Too Much Law.

In re Catherine Connors: Mild Irony & Inherent Appearance of Impropriety.

Northern New England Judges Hit Bad Patch With Appearances of Impropriety.