AUGUSTA – An opinion issued by the Maine attorney general Monday made clear that a probate judge cannot serve in the Legislature if elected, but left hanging the question of whether the judicial official can campaign for a legislative seat.

Republican Senate President Richard A. Bennett raised concerns earlier this month about the candidacy of Aroostook County Probate Judge James P. Dunleavy, a Democrat from Presque Isle, who is challenging incumbent GOP state Sen. Richard Kneeland of Easton for the Senate District 2 seat.

Bennett asked Attorney General G. Steven Rowe to determine whether Dunleavy could hold a seat in the Senate and still continue to serve as probate judge. He also questioned whether it was legal or ethical for Dunleavy to run for the legislative seat while a judge.

Citing three provisions of the Maine Constitution, Rowe said in a letter Monday to Bennett that it was clear that a judge, “including a judge of probate, may not exercise any of the powers of a legislator and may not hold office as a member of the Legislature.”

Reached Monday at his office in Presque Isle, Dunleavy agreed with Rowe and repeated what he had stated previously, that if elected, he would resign his judgeship, which expires in December 2004.

He added, however, “nothing in that letter deprives me of the right to run for this seat.”

In his letter to Bennett, Rowe said the question concerning whether Dunleavy could continue to serve as a probate judge after becoming a candidate for the state Senate required an interpretation of the Maine Code of Judicial Conduct. He added that it was not appropriate for him “to provide opinions regarding interpretation of the Maine Code of Judicial Conduct, that responsibility resting exclusively with the Maine Supreme Judicial Court.”

Rowe also informed Bennett that the state supreme court had established a Committee on Judicial Responsibility and Disability to receive and review complaints concerning violations of the code.

Bennett continued to insist in a press release Monday, however, that the judicial code of conduct requires Dunleavy to “choose between being a judge and a candidate for the Senate.”

Citing the code Monday, Bennett wrote: “A judge shall resign from judicial office upon becoming a candidate for any elective office.” He added that the only exception from the rule is that a sitting probate judge can run for re-election. All judges in Maine are appointed, except for probate judges, who are elected.

But Dunleavy said he believes the same laws that allow a sitting probate judge to run for re-election also allow him to run for another state office.

Bennett said he has registered his complaint with the state Committee on Judicial Responsibility and Disability.

During a telephone interview Monday, Bennett questioned whether Dunleavy had read the constitution or was aware of what the Code of Judicial Conduct said.

“The rules have been around for a while,” Bennett said. “He’s been a judge of probate for 30 years. He should know the rules.”

But Dunleavy questioned why Bennett waited until after the July 23 deadline for Democrats to find a replacement candidate had passed before he raised the candidacy issue.

Dunleavy said nothing was said when he announced his candidacy in February at the Democratic caucus.

“It was clear at that time and nobody raised the issue,” Dunleavy said. “Nobody raised the issue when I ran in the primary.

“It’s clear that it’s a political ploy … to deprive the people of central Aroostook of a choice,” he said.