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There has been spirited debate about judicial ethics recently, both among members of the judiciary and in the court of public opinion. What has primarily been a national conversation is also playing out in Maine right now.
Significant attention has been paid, and rightly so, to the improving but still underwhelming standards in place for U.S. Supreme Court justices. While the nation’s highest court has made strides by adopting an actual ethics code, the enforcement of those ethical standards still rests in the hands of the justices themselves.
This self-enforcement has allowed questions about the court’s commitment to these standards to linger, along with continued scandals about justices failing to disclose certain information or recuse themselves from certain cases where they might have a conflict of interest.
In short, leaving it up to the justices to enforce their own ethics rules has failed to address some of the most glaring issues that are undermining the public’s trust in the U.S. Supreme Court.
As the Maine Supreme Judicial Court considers an update to its own rules, there are encouraging signs that they won’t make the same mistake when it comes to self-enforcement of disciplinary matters.
The state’s highest court is currently considering new rules for disciplinary proceedings against its justices. According to Kaitlyn Budion of Maine Public, there aren’t current rules specifically for complaints against these Maine justices. The Committee on Judicial Conduct investigates any complaints against them, then the committee can make a disciplinary recommendation, and then members of the state Supreme Court make a final decision regarding their colleague.
The proposed new rules, refreshingly, would take a step away from the type of self-enforcement that continues to erode trust at the federal level. As Budion explained, the state Supreme Court’s new proposal would create an eight-member panel, half Superior Court justices and half District Court judges from here in Maine, and have that body weigh in with final decisions on any Maine Supreme Court disciplinary matters.
This sounds like a much better process to us, and to several prominent Maine legal voices.
“I think it creates potential perception or appearance of bias issues when you’re evaluating your own colleagues,” University of Maine School of Law professor Dmitry Bam told Budion. “So I do think having a neutral party is an important step.”
We agree. We also agree with longtime attorney Bob Cummins, who said to Budion that it would be best to include attorneys and public representatives on the review panel as well.
“Judges judging judges is always a matter of some concern to the public, at least on occasion,” Cummins told Maine Public.
Again, we agree. But even without that additional change, the current proposal to have other judges make these decisions, rather than Maine Supreme Court justices making decisions about their own colleagues, would in itself be a productive step forward for the court and its standing with the public. Judges, at the state or federal level, should not be in charge of disciplining themselves. That is a recipe for conflicts of interest, or sometimes just as corrosive, the appearance of conflicts.
The U.S. Supreme Court has so far failed to realize this. By adopting the proposed new rules, the Maine Supreme Court can avoid this same mistake.
Last January, Maine’s Committee on Judicial Conduct received the first-ever complaint about a Supreme Judicial Court justice. As reported by Marie Weidmayer and Billy Kobin from the BDN, the committee found in December that Justice Catherine Connors violated the Maine Code of Judicial Conduct by not recusing herself in two foreclosure-related cases after years of representing banking interests in her career as a lawyer. That report also acknowledges how other states have taken steps to avoid members of a state supreme court making disciplinary decisions about their colleagues.
“Other states have different procedures for handling an ethics complaint against a state supreme court justice to avoid a state supreme court justice from judging his or her colleagues,” the committee report states. “In larger states such a complaint is referred to a panel at a different state appellate court. In smaller states they can be referred to a panel of Superior Court judges. Given that Maine has a relatively small vertical court structure without another level of State appellate court to handle this matter, this complaint could be referred to a panel of Maine Superior Court Justices.”
We have more questions than answers about Connors’ specific case, like how the committee and an advisory group — a group that Connors proactively asked about recusal in one of the cases and was told she didn’t need to — could reach different conclusions on the same question. But we are sure of one thing: for any disciplinary matters regarding a Maine Supreme Judicial Court justice, it will make more sense for that final decision to come from a panel of different judges rather than asking a justice’s own Supreme Court colleagues to decide.
