Could a Maine probate judge testify under subpoena in an arbitration involving court staff?

Plain-English summary

A probate judge received a subpoena for an arbitration over court staff grievances against the Register of Probate. He asked whether Canon 4(C)(1) or another restriction barred his appearance and testimony. Source: Opinion 03-1.

The committee said Canon 4(C)(1) addressed legislative and executive public hearings, not adjudicatory hearings. It identified no express Code prohibition on testimony under subpoena and no statutory or Maine constitutional prohibition on subpoenaing a judge as a witness. Source: Opinion 03-1.

The committee concluded that a judge could be subpoenaed to testify in a case if the judge was not the presiding judge in that proceeding. Source: Opinion 03-1.

In practice

For the staff grievance arbitration, the committee found the subpoenaed testimony permissible subject to the judge not presiding in the proceeding. Source: Opinion 03-1.

Common questions

Q: Did Canon 4(C)(1) bar testimony at the arbitration?

A: No. The committee distinguished an adjudicatory hearing from the legislative and executive public hearings covered by that canon. Source: Opinion 03-1.

Q: Could the judge be subpoenaed as a witness?

A: Yes, so long as the judge was not presiding in the proceeding. Source: Opinion 03-1.

Q: Did the committee identify a statutory bar to the subpoena?

A: No. It said there was no statutory prohibition on subpoenaing a judge as a witness. Source: Opinion 03-1.

Background and rules framework

The opinion interpreted Maine Code of Judicial Conduct Canon 4(C)(1), which restricted appearances before or consultation with executive or legislative bodies or officials. The committee also addressed whether any express Code, statutory, or Maine constitutional prohibition applied to subpoenaed judicial testimony. Source: Opinion 03-1.

Citations and references

Maine Code of Judicial Conduct:

• Canon 4(C)(1).

See also

• ME Judicial Ethics Op. 03-4: Jail Authority Directorship
• ME Judicial Ethics Op. 05-2: Judicial Committee Service

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 03-1

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 03-1
Issued: 07/24/2003

AUG 19 2003 |

Issue

Whether a Probate Judge may respond to a subpoena to appear before an arbitration

hearing concerning his staff's pending grievances against the Register of Probate. Statement of Facts

A Probate Judge received a subpoena issued pursuant to an arbitration proceeding involving the Maine State Employees Association, SEIU Local 1989. According to the Judge, the matter concerned his Court staff's pending grievances against its Register of Probate. The Probate Judge was unclear, in view of Judicial Canon 4 C)(1) and perhaps other canons, as to whether his appearance and testimony in this matter would be prohibited

Discussion

Canon 4(C)(1) of the Code of Judicial Conduct provides as follows:

A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.

Conclusion
The language in Canon 4(C)(1) applies to legislative and executive public hearings, not adjudicatory hearings. There is no express prohibition in the Code of Judicial Conduct against attending and giving testimony in response to a subpoena. There is no statutory prohibition

against subpoenaing a judge to appear as a witness. Additionally, there is no prohibition in the

Maine Constitution against subpoenaing a judge to serve as witness in a case. Thus, we conclude

that a judge may legally be subpoenaed to appear in any case as a witness, as long as he is not the

presiding judge in the proceeding.

Note: Since the matter which gave rise to the Probate Judge's inquiry involved an arbitration in which the law firm of the Chairman of the Judicial Ethics Committee was involved, the Judge requested that the Chairman not participate in the response to his inquiry, and the Chairman did not.

P:\rputnam\VJudicialEthics\opinion 03-1.doc