Could a Maine probate judge invoke the failure-of-justice exception instead of recusing from cases involving former campaign opponents?
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This page answers the general question as of 2005. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A probate judge faced recusal motions involving former election opponents, supporters and former firm lawyers with whom he was litigating privately. He asked whether he could hear the matters under Canon 3E(5) because he believed another judge or court was unavailable. Source: Opinion 05-1.
The committee said Maine statutory provisions for assigning another probate judge could be used in matters requiring disqualification under Canon 3E(2)(a). It concluded the judge had not exhausted avenues for finding another judge or court. Source: Opinion 05-1.
The opinion described Canon 3E(5)’s failure-of-justice exception as limited to the most unusual and extraordinary circumstances. It also suggested that assignment problems could be discussed with the Chief Justice. Source: Opinion 05-1.
In practice
Under the facts supplied, the committee rejected relying on the exception before exhausting available assignment arrangements. It treated the ordinary disqualification requirement as controlling for matters requiring recusal. Source: Opinion 05-1.
Common questions
Q: Did the committee accept the judge’s claim that no substitute was available?
A: No. It said he had not exhausted avenues to find another judge or court. Source: Opinion 05-1.
Q: What does Canon 3E(5) address?
A: The quoted Canon allows declining disqualification if no other judge or court is available and disqualification would cause a failure of justice, with disclosure and later transfer when possible. Source: Opinion 05-1.
Q: How did the committee characterize use of that exception?
A: It said Canon 3E(5) should be invoked only in the most unusual and extraordinary circumstances. Source: Opinion 05-1.
Background and rules framework
The opinion applied Maine Code of Judicial Conduct Canons 3E(2)(a) and 3E(5). It also cited Maine statutory Sections 306 and 307 on probate-court assignment and 4 M.R.S.A. § 7 on Supreme Judicial Court supervisory authority. The scanned conclusion was checked against page two of the official PDF. Source: Opinion 05-1.
Citations and references
Maine Code of Judicial Conduct:
- Canon 3E(2)(a); Canon 3E(5).
Statutes:
- Maine statutory Sections 306 and 307, on probate-judge assignments; 4 M.R.S.A. § 7, on court supervision.
See also
Source
- Landing page: Maine advisory-opinion index
- Original PDF: Opinion 05-1
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.
a
JUDICIAL ETHICS COMMITTEE
Advisory Opinion 05-1
Issued: June 17, 2005 (n | \
Jun 22 2005 4]
' [ssue
May a Maine Probate Judge, who faced with various motions for recusaf'and who would normally recuse himself under Canon 3E(2)(a), refuse to disqualify himself pursuant to Canon 3E(5), which provides as follows: '
“A judge may decline to disqualify himself or herself in any proceeding
in which disqualification might otherwise be required under subsections (1) or
(2) of this section, if no other judge or court is available and disqualification will
result in a failure of justice. In such a case, the judge shall disclose on the record
the basis for disqualification and shall thereafter disqualify himself or herself if at
any time it is possible to transfer the proceeding to another judge or court without
a failure of justice.”
Statement of Facts
The Probate Judge inquiring gives us the following facts. The 2004 election pitted four other Democrats against the present incumbent in the June 8, 2004 primary, which he won. The campaigning was heavy, the political advertisements and claims were robust, and each of the candidates filed judicial conduct complaints against one or more of the others, which were entertained by the Maine Committee on Judicial Responsibility and Disability. The elected Judge is faced from time to time with motions for recusal filed by certain of the former political opponents, by their more vocal supporters, and by attorneys who formerly worked for the Judge’s private law firm and with whom the Judge is presently engaged on opposite sides in private civil litigation.
The Judge has also informed us that with regard to § 307, the Probate Court Judge in
f
Cumberland County has directed that cases shall not be transferred to the Cumberland County
Probate Court due to his heavy volume of cases. He further postulates that the Oxford County
Probate Judge is prohibited, by his allocated County budget, from accepting any transfers of contested matters from any other Probate Court. The pertinent Maine Statutes which appear to apply to this situation are attached. As we can see, the Maine Legislature has anticipated at least in some degree that a Probate Judge may well have to disqualify himself or herself under certain circumstances.
Discussion
As we read the inquiry and the request made of us, the Probate Judge would in fact disqualify himself under the various recusal motions under Canon 3E(2)(a) but for the fact, as disclosed above, that he is of the opinion that no other judge or court is available and the disqualification will result in a failure of justice. See Canon 3E(5).
It is the Committee’s view that appropriate arrangements can be made under the provisions of § 306 and § 307 to assign another probate judge to hear any cases where disqualification would be required under Canon 3E(2)(a) and that it would be a violation of Canon 3E(2)(a) for a probate judge to hear such cases.
We would suggest to the Probate Judge that in our view, it would be appropriate to discuss any problems encountered in having another probate judge preside in cases where disqualification is called for with the Chief Justice of the Supreme Judicial Court, which Court has supervisory jurisdiction over all inferior courts within the State (4 M.R.S.A. § 7).
Conclusion
Under the forgoing circumstances, we believe that the Probate Judge has not exhausted
all avenues to determine whether or not another judge or court is available. It is only in the most
unusual and extraordinary circumstances that Canon 3E(5) should be invoked.
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