PORTLAND – Did former Maine Supreme Court Chief Justice Daniel E. Wathen make a major misstep when he resigned from the high court to run for governor last fall?

A lawyer for Aroostook County Probate Judge James P. Dunleavy told members of the Maine Supreme Judicial Court on Tuesday that the state constitution is silent on whether a judge must resign a judgeship to run for political office. Instead, it states only that a judge must resign before assuming a second office and may not hold two offices simultaneously.

James Mitchell of Augusta is using the resign-to-run argument as one of the key defense planks for Dunleavy. Dunleavy is challenging an investigation by the Committee on Judicial Responsibility and Disability that concluded he violated the state Code of Judicial Conduct when he unsuccessfully ran for state Senate District 2 as a publicly funded candidate. The committee concluded the Presque Isle jurist violated the canons by running for office without first resigning his judgeship.

Mitchell, who also serves as the Democratic probate judge for Kennebec County, maintained that the provision of the judicial code prohibiting all Maine judges from seeking other political offices violates the Maine Constitution. He cited case law in Maine and Massachusetts – including a 102-year-old Maine court ruling – to substantiate his claim that the constitution does not preclude a judge from running for another office nor does it mandate that a judge must first resign before seeking a second office.

Probate judges are the only judges in Maine who are elected by the voters. Mitchell also pointed out a 1994 state law that he said allows a sitting probate judge to run for political office without resigning.

“So you’re saying that Judge Dunleavy doesn’t even need this statute, he could have run anyway?” asked Justice Donald G. Alexander.

“That’s right,” Mitchell replied.

“Can I run for something?” continued Alexander, who, like Mitchell, is a resident of Kennebec County.

“Yes,” Mitchell said.

“Well, I’m going to run for probate judge,” Alexander said. “… So Chief Justice Wathen made a mistake?”

“He made a mistake,” Mitchell said.

Mitchell also contested the committee’s findings that Dunleavy violated sections of the canons prohibiting judges from directly soliciting campaign funds. Because Dunleavy ran as a publicly funded candidate under the Maine Clean Election Act, Mitchell said, his client never took possession of the 150 $5 donations he solicited which, in accordance with the law, were returned to him as public money from the Maine Clean Election Fund.

Cabanne Howard, counsel to the Committee on Judicial Responsibility and Disability, argued that the Code of Judicial Conduct makes no exceptions for solicitations based on their amount. Howard emphasized it was his belief that the drafters intended to construct the code in such a way as to prevent judges from asking anyone for money to support their political ambitions.

In response to questions posed by Justice Robert W. Clifford, Howard said there was “no question” that Dunleavy had violated the code, but acknowledged the 1994 state law related to the political activities of probate judges appeared to be in conflict with the canons.

“If there is a statute, as it appears there is, that could have a bearing on this case, the court will have to decide whether the statute is constitutional,” Howard said.

“That’s the crux and the most difficult of the issues before us – the separation of powers issue,” said Justice Howard H. Dana Jr.

The court now will review arguments in the case and issue its opinion at a future date. While there is no timetable for the decision-making process, court officials indicated a ruling before the end of the summer would not be out of the question.