Me. Code. Jud. Cond. Preamble
An independent, fair, competent, and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, fair, competent, and impartial judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. The judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in the rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the justice system.
Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, integrity, fairness, and competence.
The Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.
The Code of Judicial Conduct consists of five Canons, Canons 1, 2, 3, 4, and 6. Canon 6 is generally unchanged from current Canon 6. There is no Canon 5. Numbered Rules appear under each Canon. The Terminology section provides additional guidance in interpreting and applying the Code.
The Canons state overriding principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule or the Canons, supporting Advisory Notes provide important guidance in interpreting the Rules. When a Rule contains a permissive term, such as "may" or "should," the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action is authorized for action or inaction within the bounds of such discretion. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office.
This Code sets forth rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Code is not to be construed or applied in any manner that would impinge upon the essential independence of judges in making judicial decisions.
The Code is designed to provide standards for the regulation of judicial conduct through disciplinary proceedings when necessary. Although the black letter of the Rule is binding and enforceable when using terms such as "shall" or "must," it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline is warranted should be determined through a reasonable and reasoned application of the Rules, with consideration given to the seriousness of the transgression, the extent of any pattern of improper activity, any history of previous violations, and the effect of the improper activity upon the judicial system or others.
The Code does not establish any basis for civil or criminal liability. Nor is it intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.
Me. Code. Jud. Cond. Preamble
Advisory Notes - 2015
The Preamble paragraphs incorporate, though with significant revision, what appeared within the paragraphs of the Preamble in the 1993 Maine Code of Judicial Conduct. The paragraphs are divided to track the organizational style of the ABA Model Code. The separation between the Preamble and Scope sections suggested in the ABA Model Code is eliminated in this revision, which combines the Preamble and Scope sections into a single Preamble section as exists in the 1993 Maine Code of Judicial Conduct. The 2011 edition of the ABA Model Code provided no commentary to support the Preamble or Scope sections. The 1993 Advisory Committee's Notes that supported adoption of the Preamble at that time continue to provide useful guidance to interpretation.
The Preamble now states the purposes of the Code and the general substantive and interpretive principles that underlie it. The Preamble notes that "[t]he Canons state overriding principles of judicial ethics that all judges must observe." The Preamble then notes:
| This Code sets forth rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Code is not to be construed or applied in any manner that would impinge upon the essential independence of judges in making judicial decisions. |
To apply this Code properly, one must examine a judge's action that is subject to inquiry in light of the totality of the circumstances and the statutes, precedents, court rules, this Code of Judicial Conduct, its Introductory Note, the Advisory Notes to this Code, the 1993 Advisory Committee's Notes, and any Advisory Notes to amendments to the 1993 Code since 1993 in deciding whether a judge complied with his or her ethical obligations.
1993 Advisory Committee's Note to the Preamble
The Preamble states the purposes of the Code and the general substantive and interpretive principles that underlie it. Specifically, the Preamble makes clear that all parts of the Code are "authoritative," that is, set out rules that govern judicial conduct.
Those rules are mandatory when the word "shall" is used and aspirational when "should" is used. The 1974 Code used "should" throughout, but its provisions were characterized by the Supreme Judicial Court as mandatory "minimum standards of conduct and propriety" in the first case to arise under the Code and have been so viewed in all subsequent cases. See Matter of Ross, 428 A.2d 858, 861 (Me. 1981); see, e.g., Matter of Kellam, 503 A.2d 1308, 1311 (Me. 1986) (canon "requires" certain conduct); Matter of Barrett, 512 A.2d 1030, 1033-34 (Me. 1986) (canon "directed [judge] in plain language" to take certain action); Matter of Benoit, 523 A.2d 1381, 1383 (Me. 1987) ("the plain proscription" of canon); see also ABA Code (1972), Introduction ("The canons and text establish mandatory standards unless otherwise indicated"); United States v. Anderson, 798 F.2d 919 (7th Cir., 1986) ("should" interpreted as mandatory in applying state Code of Judicial Conduct). The use of "shall" and "should" eliminates any confusion as to which provisions are mandatory and which are aspirational. See ABA Standing Committee, Report 5. Violation of mandatory rules by a judge may result in disciplinary action.
The Preamble makes clear that the Code is to be interpreted reasonably in accordance with other laws and in light of the circumstances and conditions in which judges must operate. The Preamble also sets out factors of seriousness, pattern, and effect that are to be weighed in determining whether discipline is appropriate and the sanction to be applied. These guidelines and factors should be viewed as giving definition to the requirement of paragraph 9(ii) of the Order Establishing the Committee on Judicial Responsibility and Disability, 385-388 A.2d LX, LXI, that a violation to be reported to the Court be "of a serious nature so as to warrant formal disciplinary action."
Disciplinary decisions under the 1974 Code reflect the application of similar guidelines and factors and will continue to serve as authority. See, e.g., Matter of Benoit, 487 A.2d 1158, 1163-68 (Me. 1985) (unlawful use of bail and contempt power in civil cases and pre-trial detention of juvenile offender without counsel were "obviously and seriously wrong" under "reasonably prudent and competent judge" standard); Matter of Benoit, supra, 523 A.2d at 1383 ("difficult to conceive of a more egregious violation" of canon intended to protect individual rights and prevent public perception of unfairness than trial judge's publication of letters critical of appellate court pending final disposition of matters); compare Matter of Kellam, supra, 503 A.2d at 1311 (more than 40 incidents "reveal a pattern of discourtesy to laypersons of such consistency and duration as to present a serious violation" of the Code), with Matter of Hart, 577 A.2d 351, 355 (Me. 1990) (no discipline for alleged discourteous treatment of lawyer occurring as isolated incident in chambers with no loud or undignified language in course of judge's review of perceived attorney misconduct).
In Hart, supra, the Court asserted that disciplinary proceedings are appropriate "only in those instances of judicial misconduct that exceed in seriousness the mistakes and frailties of the ordinary judge." Nevertheless, the Court has proscribed "Lawless judicial conduct- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself and has recognized that "To the end that a courtroom may truly be a temple of justice and not the personal domain of the man or woman who happens to be presiding, any differences in style [of judicial behavior] must always result in justice administered according to law and must be in accord with" the Code of Judicial Conduct. Matter of Ross, supra, 428 A.2d at 861. Departures from this standard are not justified by the admittedly difficult working conditions of the District Court, which "projects to the mass of our citizens their image of the administration of justice." Id. at 866. See also id. at 867; Matter of Kellam, supra, 503 A.2d at 1311; but see Matter of Hart, supra.
In assessing sanctions, the Court has repeatedly relied upon its statement in Matter of Ross, supra, 428 A.2d at 868-69, ordering a disciplinary suspension, that "Any sanction must be designed to preserve the integrity and independence of the judiciary and to restore and reaffirm the public confidence in the administration of justice. Any sanction must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter the individual being sanctioned from again engaging in such conduct and to prevent others from engaging in similar misconduct in the future." See, e.g., Matter of Kellam, supra, 503 A.2d at 1312 (censure, suspension, salary forfeiture); Matter of Barrett, supra, 512 A.2d at 1034 (reprimand); Matter of Benoit, supra, 523 A.2d at 1384 (censure, suspension, salary forfeiture, completion of Judicial Ethics course).
The Preamble also makes clear that the Code is not intended to set standards for the civil or criminal liability of judges. Existing law will govern such issues. See Richards v. Ellis, 233 A.2d 37 (Me. 1967) (absolute immunity from civil liability for adjudicative acts); Forrester v. White, 484 U.S. 219 (1988) (judge may be liable under 42 U.S.C. § 1983 f or acts in administrative capacity); Pulliam v. Allen, 466 U.S. 522 (1984) (judicial immunity does not bar injunctive relief or award of attorney's fees under 42 U.S.C. §§ 1983, 1988 ); but see United States v. Anderson, supra (in perjury prosecution of state judge, Code of Judicial Conduct held to have force of law); cf. Ferrell v. Cox, 617 A.2d l003, 1007 (Me. 1992) (not error to allow inquiry concerning Canon 5C(4)(c) of 1974 Code directed to judge who was defendant in civil suit).
Textual Note to Preamble of 1993 Code
The Preamble is new. It is based on ABA Model Code (1990), Preamble, adapted for Maine, with certain further modifications in the interests of clarity and simplicity.
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