A justice on Maine’s highest court did not violate the code of conduct, a panel of judges found Thursday.
Justice Catherine Connors was accused of violating Maine’s Code of Judicial Conduct by not recusing herself from two foreclosure cases before the Maine Supreme Judicial Court.
Before the two cases in question, Connors asked the Committee on Judicial Ethics if she needed to recuse herself. The chair of the advisory committee said the committee was unanimous in the opinion that she did not need to recuse herself.
The 18-page opinion issued by three judges on Thursday found that the committee did not meet the burden of proof and dismissed the complaint. Two additional judges agreed in a 10-page opinion that the report should be dismissed but that Connors did violate the Code of Judicial Conduct.
The opinions were issued just over two years after the initial complaint and are the culmination of more than a hundred pages of arguments, filed by the Judicial Conduct committee and Connors, about what, if any, punishment Connors should face.
A complaint requires careful review, especially after a decision has been made, the opinion said. It was only after the decision that housing advocate Tom Cox filed the complaint.
No lawyers in the cases or those who filed briefs for the cases raised any concerns about Connors’ impartiality, the opinion said.
Connors knew of her obligations to recuse herself if there were impartiality issues and sought guidance from the Advisory Committee on Judicial Ethics. The committee unanimously said that recusal was not necessary.
The judges were not persuaded by the argument that a reasonable observer would question if Connors was biased because of her previous work for banking interests, the opinion said. Other states and jurisdictions have found recusal is not necessary for specific issues a judge advocated for as a lawyer.
“A reasonably well-informed observer would understand that law firms represent a variety of clients and that lawyers advocate for clients even when their clients’ beliefs or interests,” the opinion said.
Advocating for clients does not necessarily mean the lawyer’s own beliefs align, the opinion said.
“No reasonable person, for instance, would think that because a lawyer has represented defendants in criminal cases that the lawyer favors breaking the law,” the judges said.
The committee did not prove the case and the report is dismissed, according to the opinion by District Court Judge Charles Dow, Penobscot County Superior Court Judge Ann Murray and active retired judge William Stokes.
Active retired judges Barbara Raimondi and Patricia Worth agreed with the decision to dismiss but said Connors did violate the Code of Judicial Conduct, according to a concurring opinion.
During Connors’ confirmation hearing before the Legislature, she said she would recuse herself from cases related to her time as a lawyer, which she did during her first two years on the bench, the committee and Connors agree.
Connors retains an unknown amount of financial interest in her former firm, Pierce Atwood. The firm is an affiliate member of the Maine Bankers Association, which was Connors’s former
Client, Raimondi and Worth wrote.
The Maine Bankers Association filed a brief in one of the two cases at issue.
The evidence shows Connors’ conduct did lead to her impartiality being questioned, the two judges wrote. A reasonable person could question if Connors was biased toward banks because of her connection to the Maine Bankers Association.
It’s true that someone should understand that a lawyer does not necessarily agree with their client’s beliefs, but in Connors case the facts “shed a different light,” the two judges wrote.
Then-attorney Connors wrote, signed and filed a brief before the Maine Supreme Judicial Court for Bank of America, and wrote, signed and filed a supporting brief for the bankers association in two different cases.
Those two cases could have been overturned in the cases Connors heard as a judge that were at issue for the complaint.
“Connors knew from her confirmation hearing that reasonable persons were concerned about the appearance of impropriety should she participate in appeals implicating her areas of expertise and her former clients,” the two judges wrote.
One of the cases Connors sat on essentially reversed a 2017 case with a 4-3 decision. Lenders are now allowed to seek foreclosures for entire payments even if they made mistakes about what borrowers owe in the default process. The high court decision found the lender made an error in how much an Oxford County woman owed but said a lower court will decide if she has to continue to pay or if she can have her home for essentially free.
It is not possible to predict what would have happened in the case with a 4-3 decision because an active retired judge may have filled Connors’ spot if she had recused herself, the judges said.
In light of the circumstances, even through there was a violation, it does not require formal discipline, the two judges wrote. Dismissing the report is proper, they said.
