Did Maine’s Judicial Ethics Committee decide whether a probate-judge political activity statute displaced the Canons?

Plain-English summary

The committee considered whether 4 M.R.S.A. § 312, which permitted political activity by probate judges comparable to other elected county officials, affected the continuing force of Canons 5(A)(1)(e)-(f) and 5(C)(3). Source: Opinion 98-2.

The opinion said Section 312 appeared to remove the Canon 5(A)(1)(e)-(f) restrictions for probate judge candidates and make Canon 5(C)(3) ineffective. It also identified a separation-of-powers question about legislative regulation of judicial conduct. Source: Opinion 98-2.

The committee declined to give an advisory opinion on the statute’s constitutionality. It cautioned probate judges that the constitutional issue existed, leaving the effect of the apparent conflict unresolved. Source: Opinion 98-2.

Currency note

This opinion was issued in 1998 under Maine’s former Code of Judicial Conduct. The Maine Supreme Judicial Court replaced that Code effective September 1, 2015. Its analysis is historical; check the current Code before relying on the former canon numbers. Source: Maine Committee on Judicial Conduct 2022 Annual Report.

Common questions

Q: Did the committee declare the statute unconstitutional?

A: No. It said deciding a statutory enactment’s constitutionality was outside its role. Source: Opinion 98-2.

Q: Did it conclude the Canons had no validity?

A: No. It described how the statute appeared to affect the Canons, then left the constitutional question unresolved. Source: Opinion 98-2.

Q: Which statute was at issue?

A: 4 M.R.S.A. § 312, concerning political activity of probate judges. Source: Opinion 98-2.

Background and rules framework

The opinion compared former Maine Code of Judicial Conduct Canons 5(A)(1)(e)-(f), 5(C)(1), and 5(C)(3) with 4 M.R.S.A. § 312 and raised Maine Constitution Article III, Sections 1 and 2 on separation of powers. Source: Opinion 98-2.

Citations and references

Maine Code of Judicial Conduct:

• Former Canons 5(A)(1)(e)-(f), 5(C)(1), and 5(C)(3).

Constitution and statutes:

• 4 M.R.S.A. § 312; P.L. 1993, ch. 695, § 1; Maine Constitution Article III, Sections 1 and 2.

See also

• ME Judicial Ethics Op. 02-5: State Senate Candidacy
• ME Judicial Ethics Op. 98-5: Probate Judge Political Activity

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 98-2

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.

Opinion No. 98-2
Issued: May, 1998

JUL 03 1998 |

SOLU U &

JUDICIAL ETHICS COMMITTEE

Question: Since the passage of 4 M.R.S.A. § 312, do Canons 5(A)(1)(e) or (f); or 5(C)(3) have any further validity?

Answer: Section 312 of Title 4 of the Maine Revised Statutes, as enacted in 1994 by P.L. 1993, ch. 695, §1, reads:

§ 312. Political activities of judges of probate

As a candidate for the elective office of judge of probate or as an - elected judge, a person seeking or holding the office of judge of probate may engage in any political activity that would be lawful for a candidate for any other elected county office or for an incumbent elected county official. Any such judge may hold any other elected office or offices not made incompatible by the Constitution of Maine.

Canon 5(A)(1)(e) prohibits incumbent judges from soliciting funds for a political organization or candidate, paying an assessment or contributing to a political organization or candidate or purchasing tickets for political party functions. Canon 5(A)(1)(f) prohibits incumbent judges from engaging in any other political
_activity except as otherwise authorized by the Code or on behalf of the improvement of the law, the legal system or the administration of justice. Both of these provisions are applicable to candidates for election or reelection as judges of probate. Canon 5(C)(1). Canon 5(C)(3) prohibits candidates for election or reelection from personally soliciting campaign contributions or publicly stated support, but it allows the candidates to establish committees for such purposes.
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Section 312 of Title 4 appears to eliminate the applicability of Canon 5(A)(1)(e) and (f) to candidates for election or reelection to the office of probate judge, and it makes Canon 5(C)(3) ineffective. However, there is an issue as to whether the Legislative Branch could constitutionally regulate the conduct of judges. The regulation of the conduct of judges has been, traditionally, the role of the Judicial

Branch. Section 312 may violate the separation of powers provisions of the Maine Constitution. Art. III, §§ 1 and 2.

It is not the role of this committee to give an advisory opinion on the constitutionality of a statutory enactment. Instead; this committee will only caution probate judges that the constitutional issue exists. The prudent judge will have to seriously consider this issue before taking actions that will violate the Canons.