Could a Maine probate judge pay for a radio advertisement supporting a courthouse bond referendum?

Plain-English summary

A probate judge asked whether he could pay for a radio advertisement advocating a county bond referendum. The proposal would provide a modern probate courtroom and related space, but also cover the Registry of Deeds, county commissioners' offices and a dispatch center. The opinion addressed the judge's proposed public support for the entire referendum.

The committee said Canon 5A(1)(f) allowed political activity on behalf of measures to improve the law, legal system or administration of justice. A majority concluded that a modern probate courtroom appeared to fall within that exception. Some members questioned whether Canon 4(C) supported an advertisement for a measure that also funded other county facilities.

The committee also identified a Canon 2A concern about public confidence in judicial impartiality. It said the political intensity of the referendum and the number of potential opposing litigants or attorneys could matter to recusal, and it could not issue a definitive opinion without further facts. Source: Opinion 10-2.

In practice

For the proposed mixed-use bond measure, the opinion left the permissibility of the judge's advertisement unresolved. Its analysis distinguished the court-improvement component from the other county facilities and identified public confidence and possible recusal as unresolved considerations. Source: Opinion 10-2.

Common questions

Q: Did the committee approve the judge's radio advertisement?

A: No definitive approval or prohibition was given. The committee said it was unable to issue a definitive opinion on the issue. Source: Opinion 10-2.

Q: Why did a majority see an argument for the advertisement?

A: The majority viewed a modern probate courtroom as a measure to improve the administration of justice, which it considered allowable under Canon 5A(1)(f). Source: Opinion 10-2.

Q: What made the referendum harder to assess?

A: It also included space for the Registry of Deeds, county commissioners and a sheriff's dispatch center. Some committee members thought those noncourt uses might fall outside the legal-system focus of Canon 4(C). Source: Opinion 10-2.

Q: Did the opinion resolve whether campaigning would require recusal?

A: No. The committee said that the issue's political intensity and the number of opposing litigants or attorneys were unknown, making possible recusal consequences difficult to predict. Source: Opinion 10-2.

Background and rules framework

The opinion applied the Maine Code of Judicial Conduct as discussed in 2010. It cited Canon 5(C) on probate judges' election-year political activity, Canon 5A(1)(e) and (f) on political contributions and activity, Canon 4(C)(3) on law-related governmental service and recommendations, and Canon 2A on public confidence in judicial impartiality. Source: Opinion 10-2.

Citations and references

Maine Code of Judicial Conduct:

• Canon 5(C); Canon 5A(1)(e), (f); Canon 4(C)(3)(b)(ii); Canon 2A.

See also

No sibling opinions yet indexed.

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 10-2

Original opinion text

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

JUDICIAL ETHICS C OMMITTEE
Advisory Opinion No. 10-2
Issued October 27, 2010

Issue

A Probate Judge has requested the Committee evaluate the following

issue: A County is seeking voter approval of a bond issue that would move

the Probate Court, Deeds, Commissioners, and treasurer into an adjacent

building. The proposal would provide the Probate Court with a modern

courtroom, chambers, waiting area away from the criminal court, and room

to store probate records.

This particular referendum also includes the Registry of Deeds ,

County Commissioners' offices and a renovated dispatch center at the

Sheriff's office.

The Probate Judge would like to air a radio spot that he would pay

for advocating approval and speaking of the probate court needs and the

registry of deeds needs.

Discussion

The Advisory Committee serves to provide advice to judicial officers

who are confronted with potential ethical issues. The opinions of the Committee have no precedential effect in other forums. 1 In many cases the

Committee is able to reach a clear cut conclusion and issue an opinion.

However, given the complexity of this issue and the role of the Committee

to provide advice as opposed to adjudication, it is the view of the Committee

that its role is best served in this instance by a discussion of the various

arguments which would support the ad and those which would oppose it.

Canon 5(C) relaxes the political activity rules for probate judges

during the years that they are running for office. However, taking a

position on a referendum is not listed in subsections 2, 3, or 4.

Airing a radio spot in connection with a pending election is likely

political activity. Canon 5A(1) sets forth the kind of political activity that is

forbidden. Probate Judges are not required to comply with 5A(1)(a)-(d).

See Applicability sec. B(1)(b). But probate judges are required to comply

with 5A(1)(e) and (f). Canon 5A(1)(e) forbids political contributions and

the like. Canon 5A(1)(f) forbids judges from engaging 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.

1
This does not mean the opinions have no evidentiary value but rather are not preclusive like doctrines of collateral estoppel or res judicata or have the effect of stare decisis upon other forums The majority of the Committee concludes that such public comment

in the advertisement with this Canon, standing alone , would represent

political activity on behalf of measures to improve the administration of

justice.

However, the scope of the referendum gave some members of the

Committee pause as it related to an evaluation of Canon 4 (C).

Canon 4(C)(3) allows a judge to serve as a member of "a

governmental agency, devoted to the improvement of the law, the legal

system or the administration of justice." Further, in subparagraph b(ii), he

or she may "make recommendations to public and private fund-granting

organization of projects and programs concerning the law, the legal system,

or the administration of justice."

Some of the Committee felt Canon 4(C) may not support the radio

advertisement. The inclusion of the facilities for the Registry of Deeds,

County Commissioners and Sheriff may exceed the scope of allowable

recommendations. Were the referendum solely for court improvements, the

question would be clearer. Here there is the potential that other uses take

the referendum beyond the legal system focus of Canon 4(C)(3)(b)(ii).

Ultimately, providing a modern courtroom for the Franklin probate

court would appear to qualify as a measure to improve the administrative of justice, which would be allowable in the viewpoint of a majority of the

Committee under Canon 5.

There are, however, compelling arguments against this, including

that permitting judges to campaign for ballot measures would not promote

public confidence in the impartiality and integrity of the judiciary as required

by Canon 2A. It is also unlikely the general public draws any distinction

between probate judges and any other judges

Conclusions

It is therefore the opinion and advice of the Committee that different

forums may draw differing conclusions regarding the interplay of the Canon

2A public confidence argument and allowing political activity intended to

improve the administration of justice in Canon 5A(1)(f).

Without further facts concerning the political intensity of this issue

as well as the number of potential litigants and attorneys who may oppose

this referendum, it is difficult to predict whether taking a stance might

create recusal issues that would involve Canon 4 considerations as well.

Accordingly, the Committee is unable to issue a definitive opinion on

this issue.