Could a Maine Superior Court judge accept an unpaid appointment to count town election ballots?

Plain-English summary

A Superior Court judge who had previously volunteered to count town ballots asked whether he could resume after appointment to the bench. The post was unpaid, but the volunteer took an oath to count and report ballots honestly. Source: Opinion 07-4.

The committee read Canon 4(C)(2) together with Maine Constitution Article VI, Section 5, which restricted judges from holding other offices under the state except two named roles. It treated the sworn ballot-counter position as an office under Maine and concluded that the judge could not accept it. Source: Opinion 07-4.

In practice

On the stated facts, the committee said the judge should decline the proposed ballot-counter appointment because the sworn position counted as a state office under the cited Canon and constitutional provision. Source: Opinion 07-4.

Common questions

Q: Did the unpaid nature of ballot counting change the answer?

A: No. The opinion described the work as unpaid but based its conclusion on the oath and status of the position as an office under the state. Source: Opinion 07-4.

Q: What exceptions did the opinion identify?

A: It quoted the constitutional exceptions for a justice of the peace or a member of the Judicial Council; ballot counter was neither. Source: Opinion 07-4.

Q: What did the committee conclude?

A: It concluded the Superior Court judge was prohibited from accepting the ballot-counter office. Source: Opinion 07-4.

Background and rules framework

The opinion applied Maine Code of Judicial Conduct Canon 4(C)(2), which referred to the other-office restriction in Maine Constitution Article VI, Section 5. The scanned conclusion was checked against page two of the official PDF. Source: Opinion 07-4.

Citations and references

Maine Code of Judicial Conduct:

• Canon 4(C)(2).

Constitution:

• Maine Constitution Article VI, Section 5, on holding another office.

See also

No sibling opinions yet indexed.

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 07-4

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.

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JUDICIAL ETHICS COMMITTEE
Advisory Opinion 07-4
Issued: November 5, 2007

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Issue

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May a Judge of the Superior Court violate any of the Canons of Judicial Conduct in view of the following facts.

Statement of Facts

The Judge, prior to his appointment to the Superior Court, was active in a variety of town activities and various committees. The Judge has withdrawn from all town activities. The Judge and his wife, prior to his appointment, have regularly counted ballots in the town of his residence.

The position of ballot counter is a volunteer position without pay. The nominee, however, takes an oath to count and report the count honestly. The counting occurs in the open in a large room, with 10 to 30 counters, depending on the size of the election.

The Judge has been asked several times to count ballots following his appointment and qualification, and has declined. The Judge has inquired whether or not he should continue to decline.

Discussion

The inquiry leads the Committee to review Canon 4(C) Governmental Civil or

Charitable Activities. The pertinent portion of Canon 4, namely Canon 4(C)(2), provides

as follows:

A judge shall not accept appointment to any office that judges are prohibited to hold by Article VI, Section 5, of the Maine Constitution - -

Article VI, Section 5 of the Constitution of Maine provides as follows:

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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 a member of the Judicial Council.

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Conclusion

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In the view of the Committee, the proposed nomination is not to the office of Justice of

the Peace or as a member of a Judicial Council. It appears to the Committee that the position of

ballot counter, requiring an oath, is an office under this State and the Canon cited above prohibits

the Judge from accepting the proposed appointment.
In conclusion, the Committee is of the opinion that the Superior Court Judge is prohibited

from accepting the proposed office of ballot counter, and should decline.