Me. Code. Jud. Cond. 2.2
A judge shall uphold and apply the law, and shall perform all judicial and administrative duties promptly, fairly, and competently. An error of law in a judicial decision, whether recognized on appeal or not, shall not constitute a violation of this Code unless the judge's action demonstrates willful or repeated disregard of explicit requirements of the law.
Me. Code. Jud. Cond. 2.2
Advisory Notes - 2015
The title to ABA Model Code Rule 2.2 is amended to add "Upholding the Law" to reflect the dual purposes of the Rule articulated in its first sentence. The second sentence has no counterpart in Model Code Rule 2.2, but reflects precedent, discussed below, interpreting Model Code Rule 2.2 and similar ethical obligations to uphold the law.
The language of the first sentence of Rule 2.2 is broader than ABA Model Rule 2.2, which states: "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." The first sentence of Rule 2.2 is drawn from (1) the first sentence of 1993 Canon 3(B)(2), specifying that a judge "shall be faithful to the law and maintain professional competence in it," and (2) 1993 Canon 3(B)(8), specifying that a judge "shall dispose of all judicial matters promptly, efficiently, and fairly."
2011 Model Code Comment [4] to Rule 2.2 indicates that Rule 2.2 is not violated when a judge makes reasonable accommodations to ensure that unrepresented litigants have their matters fairly heard. The issue of unrepresented litigants is also addressed in Rule 2.6(C).
Upholding and Applying the Law
This portion of the June 2015 Advisory Notes is equally applicable to the "comply with the law" portion of Rule 1.1. The terms of Rule 2.2 emphasize that to give rise to an ethical concern, the error of law or failure to be "faithful to the law" at issue must be much more serious and apparent than an error of law that may lead to a trial court action being vacted or criticized for an error of law on appeal. See In re Hart, 577 A.2d 351, 354-55 (Me. 1990) (single episode of intemperate behavior did not support finding of a violation of judicial ethics).
A judicial disciplinary review authority such as the Committee is not a court; it does not have the comprehensive record and advocacy that is available on an appeal, and thus does not determine whether a judge's rulings are erroneous as a matter of law. See In re Complaint of Judicial Misconduct, 631 F.3d 961, 962 (9th Cir. 2011); In re Complaint of Judicial Misconduct, 579 F.3d 1062, 1064 (9th Cir. 2009). The Committee's 2013 Annual Report states that the Committee does not engage in appellate-type review: "The Committee is not, however, an appellate court, it has no power to alter the decisions in the cases about which complaints are made. Similarly, simple disagreement with the merits of a judge's decision is not a basis for violation of the Code." Committee on Judicial Responsibility and Disability, 2014 Annual Report, 3 (2015).
When there is appellate review of an issue that has also generated an ethics concern, that appellate consideration of the issue may obviate the need for judicial disciplinary review. See In re Charge of Judicial Misconduct, 47 F.3d 399, 400-401 (10th Cir. 1995); Lauer v. Strang, 788 F.2d 135, 138 (8th Cir. 1985).
Rule 2.2 states that, to find an ethical violation, the Committee must determine that "the judge's action demonstrates willful or repeated disregard of explicit requirements of the law."
To find an ethical violation: "The number of erroneous rulings must be large enough that it could constitute a pattern. And the [judicial disciplinary review authority] must also present 'clear and convincing evidence' that this series of erroneous rulings reflects the judge's 'virtually habitual,' 'arbitrary and intentional departure from prevailing law' based on the judge's 'disagreement with, or willful indifference to, that law.'" In re Complaint of Judicial Misconduct, 631 F.3d at 962-63 (citations omitted). "This can generally be done by pointing to a particular error the judge continued to commit even after having been repeatedly corrected on appeal." Id. at 963.
Maine opinions finding judicial misconduct based on a pattern or practice of violations of established law include In re Kellam, 503 A.2d 1308 (Me. 1986) (more than forty separate incidents of rude or discourteous conduct in court); In re Benoit, 487 A.2d 1158 (Me. 1985); and In re Ross, 428 A.2d 858 (Me. 1981).
Impartiality and Fairness
Application of the obligations of impartiality and fairness necessarily requires recognition that a judge may have to make or write statements critical or disbelieving of counsel, a party, or a witness in resolving legal or factual issues presented for decision. Such statements, by themselves, do not establish ethical violations or warrant an ethics complaint or inquiry. "That a court has decided disputed issues of law and fact against a party is not, without more, evidence of lack of impartiality." Dalton v. Dalton, 2014 ME 108, ¶ 25, 99 A.3d 723 (citing Estate of Lipin, 2008 ME 16, ¶ 6, 939 A.2d 107); see also In re Martinez-Catalda, 129 F.3d 213, 219 (1st Cir. 1997) ("A judge is ordinarily entitled to form a view of the parties that is favorable or unfavorable, so long as it derives from information in the case; there may be exceptions but they are 'rare' indeed."). "And without a firm foundation upon which accusations of personal bias, prejudice, or impropriety can stand, baseless charges of misconduct are patently inappropriate." Dalton, 2014 ME 108, ¶ 25, 99 A.3d 723.
Adverse information about a party that a judge may acquire in an earlier proceeding involving a party, or in an earlier stage of a pending proceeding, does not prevent a judge from presiding in a subsequent proceeding involving the same party. See State v. Lewis, 1998 ME 83, ¶ 3, 711 A.2d 119; State v. Rameau, 685 A.2d 761, 763 (Me. 1996) (stating that a judge is not required to recuse because of opinions based on information acquired in that proceeding or a prior proceeding, unless the judge's opinions "display a deep-seated favoritism or antagonism that would make fair judgment impossible").
The disqualification standards in the federal statutes are similar to standards in the ABA Model Code. See United States v. Reynolds, 646 F.3d 63, 74 (1st Cir. 2011) (stating that opinions based on evidence introduced during the course of a case are "properly and necessarily acquired in the course of the proceedings," and are indeed sometimes, as in a bench trial, "necessary to completion of the judge's task," and are not a grounds for recusal); Khor Chin Lim v. CourtCall, Inc., 683 F.3d 378, 380 (7th Cir. 2012) (stating that "adverse decisions do not establish [bias] or even hint at bias" and finding bias contention frivolous); 13D Federal Practice and Procedure §3542, Grounds for Disqualification - Bias and Prejudice (3d ed. updated April 2015) (discussing ethical issues related to claims of bias and prejudice pursuant to the federal recusal statutes, 28 U.S.C. §§ 144, 455 (2014)).
Writing in Liteky v. United States, 510 U.S. 540 (1994), an important precedent addressing disqualification for partiality issues, Justice Scalia observed:
| First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune. |
Id. at 555-556 (citations omitted).
Concurring in Liteky, Justice Kennedy observed:
| [The federal recusal statute] is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge's rulings or findings. I think all would agree that a high threshold is required to satisfy this standard. Thus, under § 455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute. |
Id. at 557-558.
For an example of a case demonstrating what Justice Scalia characterized as the "rarest circumstances" when reassignment on remand was ordered based on a finding of a high degree of favoritism or antagonism when no extrajudicial source was involved, see Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 897-98, 904-05 (8th Cir. 2009).
Partiality and fairness issues may also arise from a judge's prior employment in relation to a pending case. This issue was discussed thoughtfully in a First Circuit opinion by Justice Souter, In re Bulger, 710 F.3d 42 (1st Cir. 2013), holding that a judge who had worked in the U.S. Attorney's Office while events at issue in a case were under investigation would be required to recuse from hearing the case. In so holding the court looked not to evidence of actual bias, but to "the existence of facts that would prompt a reasonable question in the mind of a well-informed person about the judge's capacity for impartiality in the course of the trial and its preliminaries." Id. at 46.
In his ruling, Justice Souter cautioned that disqualification motion practice does not "confer a veto power on the assignment of his trial judge to any heckling defendant who merely levels a charge that implicates a judge's defensive or vicariously defensive reaction. The recusal standard must be more demanding because 'the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.'" Id. at 47 (quoting In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989)).
Addressing a similar issue, a U.S. District Court Judge observed that a party's criticism of a judge should not require recusal:
| Newspaper articles criticizing a judge's performance are not unusual. More important, a party cannot create a basis for recusal by first criticizing a judge and then claiming the judge is biased as a result. It is well settled that prior written attacks upon a judge are legally insufficient to support a charge of bias or prejudice on the part of the judge toward the author of such a statement. Forcing judges to recuse because a litigant has criticized the judge would give litigants veto power over judges and allow forum shopping. It would also stretch the recusal statutes far beyond their intended purpose and potentially force disqualifications in a large number of cases. |
Salt Lake Tribune Publ'g Co. v. AT&T Corp., 353 F. Supp. 2d 1160, 1176 (D. Utah 2005) (footnotes omitted) (citations omitted). See also Rodgers v. Knight, 781 F.3d 932, 943 (8th Cir. 2015) (fact that plaintiff's counsel had filed judicial conduct complaint against judge in previous, unrelated litigation, or that federal district judge had formerly served as municipal judge in defendant city did not establish that the judge's impartiality in pending matter might reasonably be questioned).
The Law Court adopted a similar position in State v. Murphy, 2010 ME 140, ¶ 18, 10 A.3d 697, rejecting claims that a judge should have recused because the defendant had harshly criticized a judge in court and filed lawsuits against the judge. See also Advisory Committee on the Maine Code of Judicial Conduct, Opinion 91-1 (concluding that a judge is not required to recuse in a case when one of the parties has filed a complaint against the judge with the Committee).
In addition to these 2015 Advisory Notes, judicial ethics issues relating to disqualification claims and allegations of partiality are addressed in detail in Rules 2.11 and 3.11 and the Advisory Notes to those Rules.
1993 Advisory Committee's Notes
The 1993 Advisory Committee's Notes to Canon 3(B) paragraphs (2) and (8) state:
For 3(B)(2):
Canon 3B(2) requires a judge both to observe the law and to be professionally competent. In Matter of Ross, 428 A.2d 858 (Me. 1981), the Supreme Judicial Court found violations of the identical provision of Maine Code (1974), Canon 3A(1), when "the respondent willfully disregarded the requirements of the law" by imprisoning a defendant for nonpayment of a civil forfeiture. In the same case, the Court found additional violations of former Canon 3A(1) where the judge had caused traffic infraction complaints against personal acquaintances to be "filed," personally lecturing the defendants instead of trying them, and had continued two OUI cases against an individual for six months, one before sentencing, the other without hearing, then entered judgments of not guilty in both. The Court also cited the judge's oath under Article IX, §1, of the Maine Constitution "to administer the law, not his personal philosophy." Id. at 865.
In Matter of Benoit, 487 A.2d 1158 (Me. 1985), the Court established the standard of the "reasonably prudent and competent judge." Conduct violates former Canon 3A(1) if such a judge "would consider that conduct obviously and seriously wrong in all the circumstances." Id. at 1163. Applying this standard, the Court found that incarceration and imposition of public service obligations in civil OUI cases and pretrial detention of an unrepresented juvenile without hearing were violations of the Canon because there was no legal authority or the actions were plainly contrary to existing law. Incarceration of a civil debtor for nonpayment under a payment order and denials of stays of sentence pending appeal were found to be errors of law but not Code violations, where the law was unclear or unsettled. Id. at 1164-70. See also Matter of Cox, 553 A.2d 1255 (Me. 1989) (judge's involvement in plea negotiations contrary to explicit provision of M.R. Cr. P. 11(e) violated former Canon 3A(1) ).
For 3(B)(8):
Canon 3B(8) is intended to assure that the "interests in fairness, efficiency and economy are properly balanced." ABA Model Code (1990), Committee Note to Section 3B(8). In attaining the proper balance, "a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay . . . . A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts." ABA Model Code (1990), Commentary to Section 3B(8). Promptness requires diligence, punctuality, and expeditiousness on the part of the judge and that the judge "insist that court officials, litigants and their lawyers cooperate with the judge to that end." Id. In Matter of Barrett, supra, 512 A.2d at 1034, the Court found violations of the virtually identical provisions of former Canon 3A(5), where a probate judge deliberately delayed decision in two contested matters "out of a belief that he knew best what would advance harmony among the litigating parties before his court," thus administering "his own personal brand of justice." In a third matter, a six-month delay without more, while not condoned by the Court, was held not to be a violation standing alone. Id.