Could a Maine probate judge attend and speak at her husband’s gubernatorial campaign announcement?

Plain-English summary

A probate judge asked whether she could publicly support her husband when he announced a campaign for the Republican gubernatorial nomination. She proposed to appear as his wife rather than in a judicial role and did not intend to solicit contributions. Source: Opinion 05-4.

The committee said the Code’s probate-judge exception removed Canon 5A(1)(a)-(d) restrictions on attending political gatherings, speaking for a political organization and endorsing a candidate. It concluded she could attend the announcement and speak freely in her nonjudicial capacity. Source: Opinion 05-4.

The opinion also said the judge remained subject to Canon 5A(1)(e) and could not solicit contributions for her husband’s campaign. Source: Opinion 05-4.

In practice

For the stated campaign announcement, the committee permitted the probate judge to attend and speak as the candidate’s spouse. It treated solicitation of campaign contributions as a separate, still-prohibited act. Source: Opinion 05-4.

Common questions

Q: Could the judge speak at her husband’s announcement?

A: Yes. The committee’s conclusion allowed her to attend and speak in a nonjudicial capacity. Source: Opinion 05-4.

Q: Was she free to solicit campaign contributions?

A: No. The committee said Canon 5A(1)(e) still applied to probate judges and barred that solicitation. Source: Opinion 05-4.

Q: Did the opinion depend on her being a probate judge?

A: Yes. Its reasoning relied on the Code’s specific applicability exception for judges of probate. Source: Opinion 05-4.

Background and rules framework

The opinion applied Maine Code of Judicial Conduct Part II, Section 1B(1)(b) and Canon 5A(1). It cited In re Dunleavy for the premise that probate judges remained covered by the Code except for narrow exceptions. The scanned conclusion was checked against page two of the official PDF. Source: Opinion 05-4.

Citations and references

Maine Code of Judicial Conduct:

• Part II, Section 1B(1)(b); Canon 5A(1)(a)-(e).

Cases:

• In re: Dunleavy, 2003 Me. 124; 838 A.2d. 338, on the Code’s application to probate judges.

See also

• ME Judicial Ethics Op. 05-5: Campaign Roles

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 05-4

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 05-4
Issued: October 25, 2005

OC! ¢

PAIN

Issue
May a Maine Probate Judge appear in public in support of her husband, who will | be seeking the Republican nomination for Governor. Statement of Facts The inquiring Judge is married to a gentleman who proposes to seek the Republican nomination for Governor in the upcoming elections. The Judge has inquired as to whether she could appear at his announcement as being supportive of her husband, if she makes no comment in her position as Probate Judge and appears in her non-judicial position, i.e., as the wife of the candidate. The Code Canon 5 of the Maine Code of Judicial Conduct. A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity. (A) Political Conduct of Incumbent Judges. (1)A judge shall not: (a) act as a leader or hold office in a political organization; (b)publicly endorse or publicly oppose a candidate for public office; (c)make speeches on behalf of a political organization; (d)attend political gatherings; (e) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions; or (f) engage in any other political activity except as authorized under any other section of this Code or on behalf of measures to improve the law, the legal system, or the administration of justice. Section 1 Applicability

A. In General. Every justice, judge, active retired justice, and active retired judge of the Supreme Judicial, Superior, District, and Administrative courts shall comply with all provisions

of this Code. Every judge of probate shall comply with this Code except as provided in subsection B(1) below.

B. Judges of Probate. A judge of probate
(1) is not required to comply

(a) except while serving as a judge, or as to matters pending in the judge’s court, with Canons 3B(9) and 4C(1); and

(b) at any time with Canons 4D(3), 4E(1), 4F, 4G, 4H, and SA(1)(a)-(d).

(2) shall not act as a lawyer in a proceeding in which the judge has served as a judge or

in any other proceeding related thereto.

C. Candidates for Judicial Office. This Code is applicable to candidates for judicial

office in accordance with Canon 5D, provided that a successful candidate for judicial

office shall comply with all provisions of this Code between the time of confirmation of appointment or certification of election and swearing in.

Judges of Probate are explicitly subject to the Code of Judicial Conduct, except for a few narrowly defined exceptions: In re: Dunleavy, 2003 Me. 124; 838 A.2d. 338.

Discussion
From the foregoing, we can see that the applicability provision allows a Judge of Probate, as distinguished from other judges, to attend political gatherings, speak on behalf of a political organization, publicly endorse or oppose a candidate, and even act in conjunction with or lead a political organization.

That being true, there is no necessity for the Judge standing mute at her husband’s announcement.

Although excused from Canon 5A(1)(a)-(d), the probate judge remains subject to Canon 5A(1)(e) and therefore cannot solicit contributions to her husband’s campaign. The Judge’s inquiry makes clear, however, that she has no intention of soliciting campaign contributions.

Conclusion

The Probate Judge may attend the upcoming announcement of her husband’s candidacy

for Governor in her non-judicial capacity, and may speak freely.