Could a Maine judge serve as a town meeting moderator or municipal appeals board member?

Plain-English summary

The committee considered whether a judge could act as an elected moderator at town meeting or serve on a municipal board of appeals. It applied Canon 4C(2) and Maine Constitution Article VI, Section 5, which restricted judges’ holding governmental office. Source: Opinion 98-4.

Town moderators were elected by residents and given an oath before presiding. The committee concluded that the formal selection and powers made the position an office within the prohibition, and that election to the role could compromise the appearance of judicial impartiality. Source: Opinion 98-4.

The committee also treated membership on a municipal appeals board as an office of the prohibited kind. It said the exceptions for ceremonial activities and committees improving the law or administration of justice did not cover that board. Source: Opinion 98-4.

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: Could a judge moderate a town meeting?

A: No. The committee concluded that the elected and sworn role fell within the prohibition. Source: Opinion 98-4.

Q: Could a judge serve on a municipal board of appeals?

A: No. The committee found that board membership was an office and no cited exception applied. Source: Opinion 98-4.

Q: Why did the town moderator election matter?

A: The committee said the election and oath gave the role the formality of an office and raised apparent impartiality concerns. Source: Opinion 98-4.

Background and rules framework

The opinion applied former Maine Code of Judicial Conduct Canon 4C(2) and Maine Constitution Article VI, Section 5. It cited Advisory Opinion 97-3 as an example of restrictions on judges’ outside activities. Source: Opinion 98-4.

Citations and references

Maine Code of Judicial Conduct:

• Former Canon 4C(2).

Constitution:

• Maine Constitution Article VI, Section 5.

Other opinions cited:

• Maine Judicial Ethics Advisory Opinion 97-3, on judicial fundraising.

See also

• ME Judicial Ethics Op. 03-4: Jail Authority Directorship
• ME Judicial Ethics Op. 02-7: Nonprofit Board Service

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 98-4

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 No. 98-4
Issued: July 28, 1998

Question: May a judge serve as an elected moderator at a town meeting or as an appointed member of a municipal board of appeals?

Discussion: Canon 4C(2) provides: “A judge shall not accept appointment to any office that judges are prohibited to hold by Article VI, Section 5, of the Maine Constitution, or to any other governmental committee, commission, or position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.”

The Advisory Committee Note to this canon describes the scope of the constitutional prohibition’ to extend to “an elective or appointive position created by law at the national, state, or local level for which an oath is administered or a formal commission tendered.” The experience of members of this committee is that moderators at town meeting are

• elected by residents attending the meeting (either by secret or open
  ballot) and then administered an oath prior to moderating the meeting. The formality of the selection process and the investiture of powers to preside over the meeting falls within the scope of the Canon’s prohibition.

Further, the purpose of restricting a judge’s avocational conduct is defeated if a judge were permitted to preside as a moderator at town meeting. Canon 4 is designed to ensure that the judge’s extra-judicial activities do not compromise the apparent impartiality of the judge and the integrity of the judiciary itself. A sitting judge who is subject to an electoral process, which could invest a judge with substantive powers and authority, creates the appearance (if not the reality) of seeking support from those who intend to vote. Further, it inevitably creates segregated

1Article VI, Section 5 of the Maine Constitution provides: “No justice of the Supreme Judicial Court or any other court shall hold office under the United States or any other state, not under this State, except as justice of the peace or as member of the Judicial Council.”

groups of supporters and non-supporters. The judge’s relationship with members of these groups may, from appearances, be different. This creates the very problem that Canon 4 is designed to prevent. See, e.g., Advisory Opinion 97-3 (a judge may not personally engage in fund-raising activities).

Accordingly, we conclude that a judge may not seek the position of moderator at town meeting or serve in that capacity.

Membership on a municipal board of appeals is equivalent to holding an office of the stature and formality described by the constitutional provision and by the Canon. Further, the exceptions to the general prohibition against non-judicial public office do not apply. Canon 4C(2) | permits a judge engage in ceremonial functions in connection with historical, educational, or cultural activities. The same provision also permits the judge to acquire membership on more substantive committees relating to the legal system or the administration of justice. Membership on a municipal board of appeals, whether by election or appointment, does not fall within either of these permissible activities.