Court: Judge’s Senate run violated code of conduct

PORTLAND – Maine’s highest court ruled Wednesday that a probate judge violated the Judicial Code of Conduct by running for the state Senate, but concluded that disciplinary action against him was not warranted.

The Supreme Judicial Court found that James Dunleavy violated two of the code’s canons by running for the Senate without first resigning as Aroostook County judge of probate and by soliciting $5 contributions to run as a publicly-funded candidate.

In reaching that decision, the court struck down a 1994 law allowing probate judges to engage in the same political activity as other elected county officials.

Rejecting Dunleavy’s argument that the statute superseded the code of conduct, the justices instead found that it usurped the power of the judiciary and was unconstitutional.

Despite the violations, the justices agreed that no purpose would be served in imposing sanctions.

“Here, Judge Dunleavy has not engaged in a pattern of unethical behavior and apparently acted in good faith and with an honest belief that the code provisions at issue were both superseded by statute and unconstitutional,” Justice Howard Dana wrote.

“Moreover, there has been no allegation that Judge Dunleavy’s candidacy compromised his judicial decisions and resulted in actual prejudice.”

Calls to Dunleavy at his law office in Presque Isle were not immediately returned.

The complaint against Dunleavy was brought by the Maine Committee on Judicial Responsibility and Disability.

“They’ve essentially sustained the constitutionality of the resign-to-run provision, and I imagine the committee will be very pleased with that result,” said H. Cabanne Howard, its executive secretary. He said the committee took no position on sanctions.

During his campaign last fall in Senate District 2, Dunleavy, a Presque Isle Democrat, said he would resign his judgeship if he won his Senate race. He ended up losing to Republican incumbent Richard Kneeland of Easton, 6,071 to 5,656.

Concerned about potential problems arising from his candidacy, Dunleavy sought an advisory opinion from the Judicial Ethics Committee, which recommended that he resign as judge before seeking the Senate seat.

Ignoring that advice, Dunleavy insisted that the canons were in conflict with state law on the issue of a probate judge’s eligibility for other political offices.

Questions regarding Dunleavy’s candidacy were raised last fall by then-Senate President Richard Bennett, a Republican. Senate Democrats accused Bennett of politicizing Dunleavy’s candidacy in the heat of a hotly contested battle for control of the Senate.

In its unanimous ruling Wednesday, the supreme court said the requirement that judges resign before seeking elective office was intended to separate political ambitions from judicial decision-making in order to maintain an independent and impartial judiciary “both in fact and in the public’s perception.”

The justices also rejected Dunleavy’s argument that his solicitation of 150 $5 contributions did not violate the code of conduct because the funds were earmarked for the Maine Clean Elections Fund, rather than for any specific candidate or party.

“The fund Judge Dunleavy collected entirely enabled his candidacy,” the ruling said. “Therefore, although the $5 contributions were not directly deposited in his campaign fund, they were solicited ‘for’ his candidacy.”

In asserting the state’s “compelling interest” in preserving the impartiality of the judiciary, the court said judges who solicit support for candidates potentially create at least the appearance of bias for or against a party to a legal proceeding.

“If a contribution is made, a judge might subsequently be accused of favoring the contributor in court. If a contribution is declined, a judge might be accused of punishing a contributor in court,” Dana wrote.