In Maine, can a sitting Probate Judge serve in the State Senate if elected?

Plain-English summary

Senate President Richard Bennett asked the AG about James P. Dunleavy, the sitting Judge of Probate for Aroostook County, who was running for the Maine State Senate. Could he keep his probate judgeship if elected?

AG G. Steven Rowe answered no. Three separate provisions of the Maine Constitution bar a probate judge from simultaneously serving in the Legislature.

Article III (separation of powers): "The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial," and no person belonging to one shall exercise powers properly belonging to either of the others. A probate judge is in the judicial department; a state senator is in the legislative department. The two cannot be the same person.

Article VI, § 5: "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." A state senate seat is not a justice-of-the-peace position.

Article IX, § 2 (express incompatibility): the express list of offices "incompatible" with membership in the Legislature includes "judge of probate." The provision says any person holding one of the listed offices who accepts a seat in Congress vacates the listed office, and that "no person shall be capable of holding or exercising at the same time within this State, more than one of the offices before mentioned."

Senator Bennett also asked three questions about Canon 5(A)(3) of the Maine Code of Judicial Conduct and 4 M.R.S.A. § 312 (which addresses judicial candidates). The AG declined to answer because the Maine Supreme Judicial Court has exclusive authority to interpret and enforce the Code of Judicial Conduct (Mitchell v. Judicial Ethics Committee, 2000 ME 83). The AG cited 5 M.R.S.A. § 195, his own enabling statute, which limits him to "questions of law" submitted on "legislative matters." Judicial-conduct questions are not legislative matters.

The AG pointed the Senate President to two bodies the Supreme Judicial Court established to handle judicial-conduct questions: the Judicial Ethics Committee (which issues advisory opinions to individual judges) and the Committee on Judicial Responsibility and Disability (which receives and reviews complaints).

Currency note

This opinion was issued in 2002. 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

Q: Can a sitting probate judge in Maine also serve in the State Senate?
A: No. Three separate provisions of the Maine Constitution prohibit it: Article III (separation of powers), Article VI § 5 (judges may not hold other state offices), and Article IX § 2 (express list of offices incompatible with the Legislature, including "judge of probate").

Q: What happens if a probate judge wins a Senate election?
A: Under Article IX § 2, accepting one of the listed offices vacates the other. Effectively, the judge has to choose: resign the judgeship to take the Senate seat, or decline the Senate seat to keep the judgeship.

Q: Can a probate judge campaign for the Senate while still on the bench?
A: That is a Code of Judicial Conduct question (Canon 5(A)(3)), which the AG declined to answer. The Supreme Judicial Court has exclusive authority on that question. The Judicial Ethics Committee issues advisory opinions to individual judges asking about candidate activities.

Q: Why can't the AG interpret the Code of Judicial Conduct?
A: Two reasons. First, the AG's enabling statute (5 M.R.S.A. § 195) limits him to "questions of law" on "legislative matters." Judicial conduct is not a legislative matter. Second, Mitchell v. Judicial Ethics Committee, 2000 ME 83, confirms that the Supreme Judicial Court "has exclusive authority to promulgate, enforce and interpret the Canons."

Q: How does someone raise a Code of Judicial Conduct complaint?
A: File with the Committee on Judicial Responsibility and Disability, the body the Supreme Judicial Court established to receive and review such complaints. There are no restrictions on who may file. The Committee investigates and can recommend discipline to the Court.

Q: What about justices of the peace, who are allowed to hold other offices?
A: Article VI § 5 carves out justices of the peace and Judicial Council members from the prohibition on judges holding other state offices. Probate judges are not in that exception, so the carve-out does not help a probate judge seeking a Senate seat.

Q: Does Attorney General Opinion No. 88-7 still apply?
A: The 2002-08-23 opinion expressly affirmed Op. No. 88-7 as "in all relevant respects" still the office's view. The 88-7 analysis of probate-judge incompatibility with the Legislature was carried forward unchanged.

Background and statutory framework

Maine's Constitution layered three independent prohibitions against a probate judge serving in the Legislature, any one of which would suffice.

Article III, sections 1 and 2, declares the separation of legislative, executive, and judicial powers and forbids one department's officers from exercising another's powers. The principle is structural: the same person cannot simultaneously legislate and adjudicate cases under those laws.

Article VI, § 5, focuses on judges specifically. "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 allows two exceptions (justice of the peace and Judicial Council member); a State Senate seat is neither.

Article IX, § 2, takes a third approach: an express list of state offices declared incompatible with legislative membership. The list includes Supreme Judicial Court justices, judges of any inferior court, the Attorney General, district attorneys, the State Treasurer, the Adjutant General, judges of probate, registers of probate, registers of deeds, sheriffs and their deputies, and clerks of the judicial courts. Holding any listed office while accepting a seat in Congress automatically vacates the state office. And "no person shall be capable of holding or exercising at the same time within this State, more than one of the offices before mentioned."

The AG's analysis identifies probate judges as falling squarely within all three prohibitions. Article III by category (judicial department vs. legislative department), Article VI by status (judges may not hold other state offices outside narrow exceptions), and Article IX by name (probate judge is on the express incompatibility list).

The boundary between the AG's authority and the Supreme Judicial Court's authority over judicial conduct is set by 5 M.R.S.A. § 195, Mitchell v. Judicial Ethics Committee, 2000 ME 83, 749 A.2d 1282, and Matter of Ross, 428 A.2d 858 (Me. 1981). The AG advises on "questions of law" submitted on "legislative matters." The Supreme Judicial Court has exclusive authority "to exercise that part of the judicial power involved in prescribing the conduct of judges and imposing discipline upon them for misconduct." The Court delegates the operational details to its two committees: the Judicial Ethics Committee (advisory opinions to individual judges) and the Committee on Judicial Responsibility and Disability (complaint review).

A practical consequence: a sitting judge facing an ethics question about candidacy or other off-bench conduct goes to the Judicial Ethics Committee, not the AG. A complainant goes to the Committee on Judicial Responsibility and Disability, not the AG. The AG cannot bind either body.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2002/ag_20020823.pdf

Original opinion text

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
G. STEVEN ROWE
ATTORNEY GENERAL

August 23, 2002

Honorable Richard A. Bennett
President
Senate of Maine
3 State House Station
Augusta, Maine 04333-0003

Dear President Bennett:

This responds to your letter of August 14, 2002, in which you raise a series of questions regarding the candidacy of James P. Dunleavy for the Maine State Senate. Mr. Dunleavy is the sitting Judge of Probate for Aroostook County. His current term ends December 2004.

Your first question asks whether Judge Dunleavy may continue to serve as Judge of Probate if he is elected to the State Senate. The answer is no. Three separate provisions of the Maine Constitution severely curtail the right of judicial officers to hold other state offices.

Article III, a separation of powers clause, provides: Section 1. The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial. 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.

A second constitutional provision in Article VI specifically focuses on the Judicial Branch. It provides: Section 5. 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.

Finally, Article IX, which addresses the issue of incompatibility of offices, provides: Section 2. No person holding the office of Justice of the Supreme Judicial Court, or of any inferior court, Attorney General, district attorney, Treasurer of the State, Adjutant General, judge of probate, register of probate, register of deeds, sheriffs or their deputies, clerks of the judicial courts, shall be a member of the Legislature; and any person holding either of the foregoing offices, elected to, and accepting a seat in the Congress of the United States, shall thereby vacate said office; and no person shall be capable of holding or exercising at the same time within this State, more than one of the offices before mentioned.

These constitutional provisions make clear that a judge, including a judge of probate, may not exercise any of the powers of a legislator and may not hold office as a member of the Legislature. In all relevant respects, Attorney General Opinion No. 88-7, which was referenced in your inquiry, remains the opinion of this office.

You also asked whether Judge Dunleavy is violating Canon 5(A)(3) of the Maine Code of Judicial Conduct by continuing to serve as Judge of Probate after becoming a candidate for the State Senate; whether 4 M.R.S.A. § 312 conflicts with Canon 5(A)(3) and, if so, which controls; and whether Judge Dunleavy is subject to discipline under the Maine Code of Judicial Conduct despite 4 M.R.S.A. § 312. Each of these questions requires interpretation and application of Canons in the Maine Code of Judicial Conduct.

The Maine Code of Judicial Conduct was established by the Maine Supreme Judicial Court. The Canons are broad statements of the ethical duties of judges and govern the conduct of all Maine judges, including judges of probate. The Maine Supreme Judicial Court has exclusive authority to promulgate, enforce and interpret the Canons. Mitchell v. Judicial Ethics Committee, 2000 ME 83, ¶ 5, 749 A. 2d 1282, 1283.

It is not appropriate for the Attorney General to provide opinions regarding interpretation of the Canons in the Maine Code of Judicial Conduct. Title 5 M.R.S.A. § 195 provides that "[t]he Attorney General shall give his written opinion upon questions of law submitted to him by the Governor, by the head of any state department or any of the state agencies or by either branch of the Legislature or any members of the Legislature on legislative matters." Interpretation and application of the Canons in the Code of Judicial Conduct does not deal with legislative matters. Rather, it deals with judicial conduct.

The responsibility for interpreting and applying the Canons in the Code of Judicial Conduct lies exclusively with the Maine Supreme Judicial Court. That Court has held that, "[a]s the only court established by our Constitution, it 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." Matter of Ross, 428 A.2d 858, 868 (Me. 1981). To assist the Supreme Judicial Court with carrying out its responsibilities, the Court established two committees. The first, the Judicial Ethics Committee, renders advisory opinions to individual judges and candidates for judicial office on matters involving the interpretation and application of the Maine Code of Judicial Conduct. The second, the Committee on Judicial Responsibility and Disability, receives and reviews complaints concerning alleged violations of the Code of Judicial Conduct. There are no restrictions on who may file a complaint with the Committee on Judicial Responsibility and Disability.

I hope this information is helpful to you. Please feel free to call upon this office if we can be of further assistance.

Sincerely,
G. Steven Rowe
Attorney General
GSR/dp