If someone wins election as a Maine Probate Judge while also serving as a member of the Maine Labor Relations Board, can they hold both positions at once?

Plain-English summary

Parker A. Denaco, Executive Director of the Maine Labor Relations Board, asked AG James E. Tierney about a specific situation. Ms. Jessie Briggs Gunther, a former Superior Court Justice, had recently joined the MLRB and was running in November for Piscataquis County Probate Judge. Could she serve in both positions at once? Tierney's answer was no. The Maine Constitution's dual-office bar reached the combination.

The controlling text is Article VI, Section 5 of the Maine Constitution: "No Justice of the Supreme Judicial Court or any other court shall hold office under the United States or any other state, nor under this State, except as justice of the peace or as member of the Judicial Council." The provision restricts judges from holding any other government office, with two narrow carve-outs (justice of the peace; Judicial Council). The MLRB seat was clearly "an office ... under this State," so the question was whether a Probate Judge counted as a justice of "any other court" within Article VI, Section 5.

Tierney concluded that Probate Courts are encompassed within "any other court," even though the Supreme Judicial Court had not directly ruled on the point. Three considerations supported the reading.

First, the constitutional structure. Article VI, Section 6 prescribes how Probate Judges are chosen, and Maine Constitutional Amendment CVI (1967) authorizes the Legislature to "establish a different Probate Court system." The framers and amenders treated the Probate Court as a court within the meaning of Article VI.

Second, Law Court guidance. In Opinion of the Justices, 412 A.2d 958 (Me. 1980), the Supreme Judicial Court advised that the Legislature could transfer Probate Court functions to the Superior Court (unquestionably a "court" under Article VI, Section 5) without constitutional violation. That advisory opinion presupposed that the Probate Court was performing court functions in a way that could be transferred to a Superior Court without changing the constitutional character of the work.

Third, legislative practice. The Probate Court statutes at 4 M.R.S.A. § 201 et seq. consistently refer to that institution as "a court." The Legislature has acted on the understanding that Probate Courts are courts within the meaning of Article VI.

The combined force of these considerations made Probate Court a "court" for Article VI, Section 5 purposes. A sitting Probate Judge therefore could not hold the position of MLRB member. The practical consequence for Ms. Gunther was that if she won the November election, she would need to leave the MLRB seat before being sworn in. The opinion was sent to her directly as a courtesy.

The opinion is brief and contains no extended analysis of incompatibility doctrine because the constitutional rule is categorical. Article VI, Section 5 does not turn on a case-by-case examination of whether the duties of the two offices conflict. It is a blanket prohibition with two narrow exceptions, and the MLRB does not fall within either exception.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does the bar apply to a candidate, or only after taking office?

The bar applies on taking office as a judge. A candidate for Probate Judge can run while sitting on the MLRB. The collision is at the swearing-in: a sitting Probate Judge cannot also hold a state office, so the MLRB seat would need to be resigned.

Why does the Constitution use such a broad bar for judges?

To preserve judicial independence and prevent conflicts of interest. The framers wanted judges focused entirely on judicial duties, free from concurrent appointment- or election-based service in non-judicial state roles. The bar reflects a structural design choice about separation of powers, not just a case-by-case incompatibility judgment.

What are the carve-outs in Article VI, Section 5?

Two narrow ones: a judge may serve as justice of the peace and as a member of the Judicial Council. The first reflects the historical role of judges in low-level civil functions; the second is a court-related body. No other state office is carved out.

Did the Maine Supreme Judicial Court actually decide that a Probate Court is a 'court' under Article VI, Section 5?

Not directly on this point. But Opinion of the Justices, 412 A.2d 958 (Me. 1980), advised that Probate Court functions could be transferred to the Superior Court without constitutional difficulty, an analysis that treats the two institutions as comparable. Combined with the language of Article VI, Section 6, the Probate Court statutes (4 M.R.S.A. § 201 et seq.), and the Legislature's consistent use of "court" terminology, the conclusion that a Probate Court qualifies as "any other court" under Article VI, Section 5 is straightforward.

Could a Probate Judge serve on the Judicial Council?

Yes. The Judicial Council is one of the two express exceptions in Article VI, Section 5. A sitting Probate Judge can also serve on the Judicial Council.

What about federal offices?

Article VI, Section 5 also bars sitting judges from holding "office under the United States or any other state." So a Maine Probate Judge could not hold a federal office or an office in another state's government either, with the same justice-of-the-peace and Judicial Council exceptions.

Background and statutory framework

Maine's Probate Courts are county-level courts that handle wills, estates, guardianships, adoptions, and related matters. Article VI, Sections 5 and 6 of the Maine Constitution govern their selection and the restrictions on their judges. The MLRB is the state administrative agency that adjudicates collective-bargaining disputes for public employees. The two positions sit in fundamentally different parts of state government. Article VI, Section 5's categorical bar prevents combining them, regardless of whether their actual duties would substantively conflict. The 1988 opinion is a brief but clear application of that categorical rule to a specific electoral situation.

Citations

• Me. Const. art. VI, § 5
• Me. Const. art. VI, § 6
• Me. Const. Amendment CVI (1967)
• 4 M.R.S.A. § 201 et seq.
• Opinion of the Justices, 412 A.2d 958 (Me. 1980)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880928a.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

88-7

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

September 28, 1988

Parker A. Denaco
Executive Director
Maine Labor Relations Board
State House Station #90
Augusta, Maine 04333

Dear Mr. Denaco:

I am writing to confirm the advice recently given by my staff to yours concerning the constitutionality of a member of the Maine Labor Relations Board serving as a Probate Judge. This question arose because Ms. Jessie Briggs Gunther, a former Superior Court Justice, has recently become a member of the Labor Relations Board and is currently a candidate for election this coming November for the position of Piscataquis County Probate Judge. For the reasons which follow, it is the opinion of this Department that the two positions may not be held simultaneously by the same person.

This question is controlled by Article VI, Section 5 of the Maine Constitution, which provides:

No Justice of the Supreme Judicial Court or any other court shall hold office under the United States or any other state, nor under this State, except as justice of the peace or as member of the Judicial Council.

Since the position of a member of the Maine Labor Relations Board clearly constitutes an "office ... under this State" within the meaning of this provision, the question is whether a Probate Court constitutes "any other court" for purposes of the section.

There does not appear to be any decision of the Supreme Judicial Court determining whether this provision applies to the probate courts of the State. Nonetheless, it is quite clear that such courts are encompassed within its meaning. For example, the very next section of the Maine Constitution, Article VI, Section 6, prescribes the manner by which judges of probate are to be chosen, and provides further that the Legislature may "establish a different Probate Court system" if it so chooses. Maine Const., Amendment CVI (1967). Indeed, the Supreme Judicial Court has given an advisory opinion that the transfer by the Legislature of the functions of the Probate Court to the Superior Court, an institution which is unquestionably a "court" within the meaning of Article VI, Section 5, would not be unconstitutional. Opinion of the Justices, 412 A.2d 958 (Me. 1980). Moreover, the statutes which the Legislature has enacted relating to the Probate Court, 4 M.R.S.A. § 201, et seq., consistently refer to that institution as a "court." It is, therefore, difficult to escape the conclusion that both the drafters of the relevant constitutional provisions, and the Legislature, exercising its delegated power to establish probate institutions pursuant to such provisions, regard those institutions as "courts." Thus, the prohibitions contained in Article VI, Section 5 prevent a sitting Probate Judge from holding the position of member of the Maine Labor Relations Board, or any other state office.

Please feel free to let me know if you have any further questions regarding this matter.

Sincerely,
JAMES E. TIERNEY
Attorney General

JET/ec
cc: Hon. Jessie Briggs Gunther