The legislature’s judiciary committee defied a warning from the chief justice of the Maine Supreme Judicial Court on Wednesday, pressing ahead with efforts to examine how the judicial branch handles ethics complaints against its judges. 

In a work session on L.D. 1810, the committee considered how to address what one lawmaker called a “gap” in the judicial branch’s system for disciplining high court justices.

But the legislators’ options appeared limited. Chief Justice Valerie Stanfill had previously testified that any legislative branch efforts to change the judicial branch’s internal processes would violate the Maine Constitution’s separation of powers clause. 

“The judicial power vested in the Supreme Judicial Court includes the exclusive authority to regulate the conduct of judges of all the courts, including imposing discipline or misconduct,” Stanfill wrote in her testimony opposing the bill. 

The legislative committee ultimately endorsed an amended version of the bill that would convene a group to study the court’s process, despite being told by a judicial representative the legislature had no power to enact any changes the committee might recommend. 

The conflict between the two branches of government stems from an ethics complaint against Maine Supreme Judicial Court Justice Catherine Connors. Last October, the judicial branch’s committee tasked with evaluating ethics complaints recommended discipline against Connors, the first time it has ever made such a recommendation against a Maine Supreme Court justice. 

A January 2024 ethics complaint from attorney Thomas Cox had argued that the justice’s decision not to recuse herself from two cases involving Maine foreclosure law was unethical because of her previous work representing banks in foreclosure cases. 

In one of those cases, Pushard v. Bank of America, she argued for the bank, but the Court disagreed and decided against her, establishing a new precedent favorable to Maine homeowners. A few years later, a new court with Connors on the bench heard arguments in a similar case, Finch v. U.S. Bank, N.A.. She joined a 4-3 majority that ultimately decided to rule in favor of the bank and overturn the precedent in Pushard. 

Connors the justice had helped overturn a precedent created in a case that Connors the attorney had lost, sparking outrage from some lawmakers and members of the bar who thought she should have recused herself from the case. 

Connors has defended her conduct, and pointed out that she sought advice from a judicial advisory panel, which advised her that recusal was not necessary.

The Committee for Judicial Conduct evaluated the complaint and made an initial recommendation that Connors should be disciplined in October, clarifying in a December filing that the discipline should consist of a public reprimand.

The power to mete out judicial discipline lies with the high court. Connors’ case raised questions about what happens if a justice is the subject of a complaint, as well as about the potential conflict in tasking Supreme Court justices with deciding whether or not to discipline a colleague.

In January, the Maine Supreme Court drafted new rules for how to handle the unprecedented complaint against Connors. The draft rules put the authority for evaluating complaints against Supreme Court justices in the hands of a panel of lower court judges.

But the rules have not been implemented, the Connors matter has not been closed and no timeline has been given for when it could be resolved. 

“It looks like this matter is being swept under the rug,” Cox testified to the judiciary committee. 

Rep. Adam Lee (D-Auburn), who introduced the legislation, looked to neighboring Massachusetts for its system of evaluating allegations against Supreme Court Justices. Their process involves a similar process of creating a panel of lower court judges to evaluate misconduct by a member of the high court. 

On Wednesday, Lee and the legislative committee seemed poised to amend the bill to avoid the constitutional issues raised by Stanfill. Instead of implementing a new system, they discussed creating a legislative study group to examine Maine’s process for disciplining judges and justices.

Judicial spokesperson Barbara Cardone reiterated her boss’s position to the committee.

“What you’re about to undertake is an unconstitutional exercise of legislative power,” Cardone said. “I don’t know how many of you understand how rare it is for the chief justice to speak out at a public hearing regarding the constitutionality of a bill. It’s somewhat upsetting that that declaration, that advice, seems to go unheeded by members of this committee.”

Some lawmakers pushed back, asking how it could be unconstitutional to form a legislative study committee. Cardone argued it was pointless to form a committee to study an issue the legislature had no say in.

“If the legislature does not have that power, why would the legislature convene a study commission?” Cardone said. “I guess that’s the question that you all need to answer.”

Cardone noted that the Court had received public comment on the proposed rules, and would soon be issuing another draft of the rules based on the feedback it had received. But she could not say when those rules would be made public, or what changes they contained. 

She said the rules would be different enough from the first draft that there would be another public comment period, and encouraged lawmakers to submit comments.

Rep. Lee was defiant as he made a motion to advance the amended bill calling for a study group. 

“The Maine Supreme Judicial Court is indeed the ultimate arbiter of the constitutionality of things, but they do so through cases and controversies, not through testimony to the judiciary committee,” he said. 

The committee voted to advance the bill by a margin of ten to three. 

This story was originally published by The Maine Monitor, a nonprofit civic news organization. To get regular coverage from The Monitor, sign up for a free Monitor newsletter here.