Maine Supreme Judicial Court Justice Catherine Connors speaks during a session at Lewiston High School on Oct. 10. Derek Davis/Staff Photographer

In a rare move, a judicial review committee is recommending that a Maine Supreme Judicial Court justice be sanctioned after she did not recuse herself from a major foreclosure case this year that posed a conflict of interest.

The state’s Committee on Judicial Conduct said Justice Catherine Connors violated the Maine Code of Judicial Conduct by participating in two cases that overturned recent precedent and weakened protections for homeowners struggling to make mortgage payments.

Connors, a former attorney, has a long history of representing banks and filed briefs representing banks and banking interests in the precedent-setting cases.

Thomas A. Cox, a prominent foreclosure attorney based in Yarmouth, filed a complaint against Connors in January, arguing that she had a conflict of interest.

The committee, which conducts ethics proceedings in secret, filed its decision Oct. 11.

The code of judicial conduct requires that a judge or justice recuse him or herself if the judge’s impartiality in a case might be reasonably questioned. The standard for whether that impartiality may be questioned, according to the code, is an objective standard that mandates recusal. Subjective beliefs about the judge’s impartiality are irrelevant.

“Homeownership and foreclosure actions are serious matters and of concern to Mainers. Justice Connors’ lack of sensitivity to the appearance of impropriety should have been, but apparently was not, self-evident,” wrote John A. McArdle, counsel to the ethics committee.

That sensitivity is important for all judges, he wrote in his recommendation, but especially for Supreme Judicial Court justices, whose decisions affect not only the immediate parties to an appeal but also other Mainers who will have to abide by the rulings, which will stand for decades.

“Justice Connors’ failure to be sensitive to the appearance of impropriety and recuse herself in the face of it, not only violates the Judicial Code of Conduct, but it undermines public confidence in the judiciary,” he said.

FORECLOSURE CASES 

A handful of foreclosure cases are at the heart of the issue.

In Maine, to foreclose on a property, a lender must first send a notice of default, which lays out what the borrower owes and how to get up to speed on the loan. State statute has strict requirements on what must be included in the notice.

Because of the statutory requirements for these letters, any mistake or “defective” notice of default would essentially torpedo a bank’s foreclosure lawsuit. And following landmark cases like Pushard v. Bank of America and Federal National Mortgage Association v. Deschaine – both decided unanimously by the Supreme Judicial Court in 2017 – and the legal principle known as res judicata, the mortgage is deemed unenforceable, and banks can never file a foreclosure suit on that property again. It also means the mortgage is discharged and the borrower, in effect, now has a free house – an outcome sometimes referred to as “court as casino.” 

But in January, in Finch v. U.S. Bank, N.A., the Maine Supreme Judicial Court – now almost entirely seated with new justices – issued what it called a “course correction” and ruled 4-3, with Connors in the majority, that when a lender fails to comply with the requirements of the default notice before initiating a foreclosure, the lender does not lose the right to enforce the mortgage. With this ruling, the court overturned precedent it set in the Pushard case.

Also in January, the court ruled 5-2 – again, Connors was in the majority – in favor of the bank in a similar case to Finch, J.P. Morgan Chase Acquisition Corp v. Camille J. Moulton.

Connors, a Pierce Atwood attorney in 2017, represented and filed the appellate brief for Bank of America in Pushard and filed an amicus – or friend of the court – brief in the Deschaine case.

The court used the same language and analysis in its decision on the Finch case as it did in its decision on the Pushard case.

In his complaint, Cox argued that had Connors recused herself, the prior judgment would have been upheld.

‘ERR ON THE SIDE OF RECUSALS’

During her confirmation hearing in 2020, Connors was asked repeatedly about recusals.

She said she expected there would be “significant recusals” in foreclosure appeal cases before the court and that when in doubt, she would “err on the side of recusal.”

In 2022, Jeffrey Evangelos, a former Maine state representative on the Judiciary Committee, formally requested Connors recuse herself before hearing the Moulton case.

After Cox filed his complaint, Evangelos told the Press Herald that Connors had betrayed his trust.

The committee cited Evangelos’ disappointment in its decision and said “the public outcry concerning her participation” is proof that, as the statute requires, a “reasonable person” would question her impartiality.

According to the recommendation, Connors, who had already participated in the oral arguments of the Finch appeal, later reached out to the Maine Judicial Ethics Committee and asked if she should recuse herself from the Finch and Moulton cases.

The ethics committee said she did not have to because the Pushard and Deschaine cases were separate from the Moulton and Finch cases. She decided to sit.

“Despite overwhelming information that could, and would, cause a reasonable person to question her impartiality, Justice Connors chose to actively participate in the Finch and Moulton before even seeking outside guidance,” McArdle wrote. “Then, after she was informed that she did not have to recuse, she consciously chose not to recuse, despite the appearance of impropriety which should have been self-evident. … The public outcry concerning her participation in appeals is proof that a reasonable person not only could, but would, question her impartiality under the circumstances.”

A CLOSED-DOOR PROCESS 

The committee’s recommendation does not mean that Connors will face disciplinary action.

Much of the complaint process is shrouded in secrecy – any details only become public if the committee decides to report a judge to the Supreme Judicial Court, after which point all proceedings are public.

If the committee does find that the complaint qualifies as misconduct, it will report to the Supreme Judicial Court, which makes the final determination of whether there was misconduct and what disciplinary action is required.

Notably, the process is the same at all levels of the court, so Connors’ fate will be determined by her fellow justices.

It was not clear Thursday if any other justices who have served on Maine’s highest court have been sanctioned. It’s uncommon for a judge in Maine to be disciplined.

In September, Judge William Blaisdell, Hancock County’s elected probate judge since 2015, was suspended after the Supreme Judicial Court found that he had not paid at least three years’ worth of taxes and was withholding child support payments from his ex-wife.

From 2016-22, the years for which data is readily available, the Judicial Conduct Committee sent only eight complaints – lodged against a total of six judges – to the Supreme Judicial Court. In that same time, the committee dismissed nearly 650 such complaints, according to an analysis of the committee’s annual reports.

Cox and Connors could not be reached to discuss the case on Thursday night.