A panel of Maine judges today heard oral arguments in a rare disciplinary case involving a state Supreme Court justice. It’s the first such hearing of its kind in Maine and the first proceeding under newly amended judicial rules.
At issue in the complaint brought against Justice Catherine Connors is her handling of two foreclosure cases that were brought before the Law Court. The Committee on Judicial Conduct determined last fall that Connors should have recused herself from those cases, because of her past work on foreclosure matters as an attorney, and recommended disciplinary action.
John McArdle, attorney for the committee, said by failing to recuse, Connors violated the Maine Code of Judicial Conduct, because her impartiality in the cases might reasonably be questioned.
"And I'm not saying, and the committee is not saying, that she intentionally said 'I'm going to break a rule here, I'm going to, I'm going to do something that breaches the rule regarding the appearance of impropriety.'" That's not what we're saying at all, but what we are saying is that she had a blind spot," McArdle said.
But James Bowie, who represents Connors, said that his client consulted with the Advisory Committee on Judicial Ethics on the issue, and that group unanimously ruled that a recusal was not necessary.
"Unless recusal is in fact required, the judge is ethically required to sit and hear matters to which they are assigned," Bowie said.
He argued that the conduct rules do not require Connors to recuse herself from every foreclosure case just because of her experience as an attorney.
"Otherwise you're saying that civil rights lawyers can't hear civil rights cases," Bowie said. "Prosecutors shouldn't be hearing criminal cases. Criminal defense lawyers shouldn't be hearing criminal defense cases."
Bowie added that none of the parties in the two cases raised concerns about Connors involvement or asked for her recusal.
"The bottom line is that a judge has to be given a fair amount of discretion to be able to make this sort of call and determine whether the judge can sit impartially," he said.
But McArdle and the committee counter that Connors only consulted the Advisory Committee on Judicial Ethics months after hearing oral arguments in the first case.
And McArdle said the ethics committee only issued an informal decision and argues that if it had been given more information, it would have ruled that Connors should recuse.
"It's one of several facts that when you put them together, it just doesn't look right," McArdle said. "It doesn't mean that Justice Connors had bad intent. It doesn't mean Justice Connors was biased. That's not the issue. It looks bad."
McArdle also pointed to comments Connors made in her confirmation hearing, when she said she expected significant recusals in foreclosure cases, and in questionable situations would “err on the side of recusal.”
McArdle also noted that Connors has a financial stake in the law firm Pierce Atwood, and the firm is an affiliate member of the Maine Bankers Association, which he argued would benefit from the court’s rulings in the two foreclosure cases.
"It looks bad because the facts suggest the question is this: can this judge be fair?" he said.
The Committee on Judicial Conduct is asking a five-member panel of District and Superior Court judges to reprimand Connors.
It’s a new process for the disciplinary complaint, which previously would have been considered by the remaining members of the Maine Supreme Court. But the court amended the process this year, after the committee made its report on Connors.
