Did Maine Canon 5(A)(3) require a probate judge to resign when running for state senate?

Plain-English summary

Counsel for a sitting probate judge asked whether the judge could become a state senate candidate without resigning. Counsel also raised a possible conflict between Canon 5(A)(3), 4 M.R.S.A. § 312, and Maine Constitution Article IX, Section 2. Source: Opinion 02-5.

The committee applied Canon 5(A)(3), which required resignation when a judge became a candidate for elective office except for a probate judge seeking reelection as probate judge. A state senate candidacy did not fit that exception. Source: Opinion 02-5.

The committee concluded that the probate judge should resign upon becoming a state senate candidate. Consistent with its earlier opinions, it did not decide whether the canon conflicted with the statute or constitution. Source: Opinion 02-5.

In practice

For the proposed state senate candidacy, the opinion required resignation under the canon as written and expressly left the asserted legal conflict undecided. Source: Opinion 02-5.

Common questions

Q: Could the probate judge remain in office while running for state senate?

A: No. The committee concluded that Canon 5(A)(3) required resignation upon candidacy. Source: Opinion 02-5.

Q: Did the probate reelection exception apply?

A: No. The judge was running for state senate, not reelection as judge of probate. Source: Opinion 02-5.

Q: Did the committee resolve the constitutional or statutory challenge?

A: No. It expressly declined to consider whether Canon 5(A)(3) conflicted with the statute or constitution. Source: Opinion 02-5.

Background and rules framework

The opinion applied Maine Code of Judicial Conduct Canon 5(A)(3) as written. It cited Mitchell v. Judicial Ethics Committee concerning judicial disciplinary jurisdiction, and its own Opinions 98-2 and 97-1 to explain why it would not decide the asserted statutory or constitutional conflict. Source: Opinion 02-5.

Citations and references

Maine Code of Judicial Conduct:

• Canon 5(A)(3); Canon 5(C).

Constitution and statutes:

• 4 M.R.S.A. § 312; Maine Constitution Article IX, Section 2.

Cases:

• Mitchell v. Judicial Ethics Committee, 2000 ME 83, 749 A.2d 1282, on jurisdiction over judicial disciplinary matters.

Other opinions cited:

• Maine Judicial Ethics Advisory Opinions 98-2 and 97-1, on the committee’s limited interpretive role.

See also

• ME Judicial Ethics Op. 05-4: Spouse Campaign Launch
• ME Judicial Ethics Op. 02-6: Bail Commissioner Candidacy

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 02-5

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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

JUDICIAL ETHICS COMMITTEE
Advisory Opinion 02-5
Issued: 09/10/2002

Issue

Whether a sitting Judge of Probate may seek the office of State Senator without resignin

his position.
Statement of Facts

Counsel for a sitting Judge of Probate wrote the Committee as follows: “I write to seek an Advisory Committee Opinion from the Committee on Judicial Ethics on the Judge’s right to be a candidate for the State Senate.” A further request was made by Counsel that if the Committee were to address the issue, whether he could have permission to brief the issue in more detail. Additionally, Counsel cited 4 M.R.S.A. § 312, as well as Article IX § 2 of the Constitution of Maine and suggested that Canon 5(A)(3) of the Maine Code of Judicial Conduct appeared to be in conflict with the Maine statute and the Constitutional provision.

Discussion

In view of the time elements involved, the Committee has determined that it will address the issue without the benefit of briefs.

As cited by Counsel, the applicable section of Canon 5 is 5(A)(3), which provides: “A judge shall resign from judicial office upon becoming a candidate for any elective office except that a judge of probate may be a candidate for re-election while holding that office, provided the judge complies with the provisions of Section C of this Canon.” Section C of Canon 5 is entitled

“Political Conduct of Candidates for Election as Judge of Probate.”

In Mitchell v. Judicial Ethics Committee, 2000 Me. 83; 749 A.2d 1282 (May 12, 2000),

the Law Court set forth the area in which the Judicial Ethics Committee shall operate. The Court

went on to hold that the Superior Court in Mr. Mitchell’s appeal did not have jurisdiction because the Supreme Judicial Court has exclusive original jurisdiction over all judicial disciplinary matters.

In Judicial Ethics Committee Advisory Opinion No. 98-2, issued May 1998, a question somewhat similar to that asked by Counsel is addressed; namely, “Since the passage of 4 MLR.S.A. § 312, do Canons 5(A)(1)(f) or 5(C)(3) have any further validity?” After discussing the issue, the Committee stated, “It is not the role of this Comittee to give an Advisory Opinion on the constitutionality of a statutory enactment. Instead, the Committee will only caution Probate Judges that the constitutional issues exist. The prudent judge will have to seriously consider this issue before taking actions that will violate the Canons.”

In Judicial Ethics Committee Advisory Opinion No. 97-1, issued June 26, 1997, the Committee addressed a potential conflict between the Canons and an existing statute. We quote: “The charge of this Committee does not include interpretation of criminal laws. The Committee cautioned, however, judges need to consider the administrative and statutory criteria affecting receipt of gifts before engaging in relevant forms of conduct.”

This Committee’s charge when it was established by an Order of the Supreme Judicial | Court, effective November 15, 1993, is to interpret the Canons as they are written and are in full force and effect.

Conclusion

Accordingly, it is the position of the Committee that from the facts presented, applying the existing Canons of Ethics, namely 5(A)(3), the Probate Judge should resign his judicial office upon becoming a candidate for election to the State Senate. He does not fall within the

exception; i.e., he is not a candidate for re-election as Judge of Probate.

In keeping with the foregoing precedent, we are not considering any contention that

Canon 5(A)(3) conflicts with the statute or with the Constitution.