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

The recent recommendation that Maine Supreme Judicial Court Justice Catherine Connors be disciplined for an ethics violation is not just unusual – experts say it could be precedent-setting.

Connors is thought to be the first justice on Maine’s highest court to be recommended for sanctions, and the situation raises questions about how the Supreme Judicial Court, which oversees all judicial discipline, will handle penalizing one of its own.

It’s unlikely that Connors will receive more than a slap on the wrist, and she will keep her seat – Maine is one of six states that does not allow its supreme court to remove a judge for unethical conduct. Only the Legislature can remove a judge.

But legal experts say that no matter the outcome, the case raises questions about the complaint process, its protection of judges and how conflicts of interest should be handled on both sides of the bench.

The state’s Committee on Judicial Conduct earlier this month said that 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 in Yarmouth, filed a complaint against Connors in January, arguing that she had a conflict of interest.

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.

“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,” John McArdle, counsel for the committee wrote in the decision.

‘UNCHARTED TERRITORY’

It’s uncommon for any judge to receive sanctions – or be recommended for them.

Complaints are filed all the time, said Dmitry Bam, vice dean and provost of the University of Maine School of Law, but most – close to 99% –  are dismissed either outright or after a short review process. That the complaint against Connors made it this far “could be precedent-setting,” he said.

Since 1998, the Committee on Judicial Conduct has reviewed over 1,000 complaints against judges at all levels of the court, averaging between 30 and 60 new complaints each year. In that time, only nine cases – involving four judges – have resulted in discipline.

Since 2007, the earliest available data, 26 complaints have been filed against Supreme Judicial Court justices, none of which was forwarded.

The lower courts handle the vast majority of cases, so it’s often simply a numbers game – fewer cases, fewer chances for wrongdoing, said David Sachar, director of the Center for Judicial Ethics for the National Center for State Courts. Additionally, justices have a wealth of experience by the time they’ve been appointed. They’ve “been vetted throughout their careers and tend to avoid these kinds of pitfalls,” Sachar said.

Maine’s judicial complaint process is shrouded in secrecy – details only become public if requested by the judge or if the committee recommends discipline, after which point all proceedings are public.

Maine is in the minority. In 35 states, the fact-finding hearing for judges is public. In 26 of those, the proceedings are public as soon as charges are filed. Only four other courts – Delaware, Hawaii, North Carolina and Washington, D.C. – have more secretive processes than Maine.

Ryan Williams, a criminology professor at the University of New England who has studied judicial behavior, said that across the country,  judicial conduct reviews do not typically lead to discipline.

“There are many instances of judges who are afforded a great deal of leniency that wouldn’t be afforded a regular defendant,” he said. “Even when there is accountability, we see judges returning to the bench.”

In Maine, the possible sanctions range from a proverbial slap on the wrist in the form of public reprimand or censure to suspension, but not removal, according to the National Center for State Courts. Only the Legislature can remove a judge, unlike in most other states.

“The pattern would suggest that not having a (history) of these types of conduct violations merits a lower punishment … but we’re sort of in uncharted territory in Maine,” Williams said. “This is a high-profile position. These are incredibly important cases. And this is something that lawmakers and the public had their eye on back when she was confirmed.”

Connors could avoid punishment altogether. The committee’s recommendation is just that. It’s up to the Supreme Judicial Court to decide if there was misconduct and if so, what happens next.

A JURY OF HER PEERS

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

The American Bar Association recommends against that in its Model Rules for Judicial Disciplinary Enforcement.

“The highest court is a collegial body,” it wrote in commentary on the rule. “Granting it the authority to discipline its own members would create an appearance of impropriety and of conflicts of interest.”

At least 15 states have rules that require supreme court justice discipline cases be handled by judicial officers outside of the collegial court, meaning that state officials create a substitute court by seniority, randomly, or by position.

In Massachusetts, for example, the chief justice and the six most senior justices of the appeals court would serve in place of the supreme court in a case like Connors’.

In Maine, there isn’t a defined procedure, though a spokesperson for the judicial branch said she expects the Supreme Judicial Court to soon issue an order outlining the plan.

Sachar said it’s likely the court will hear Connors’ case.

“If there’s not an obvious mechanism for replacing recused justices, then it appears that may be exactly what happens,” Sachar said.

It’s an especially sticky question considering Connors is accused of failing to remove herself from a case. Now her fellow justices will face a similar test.

“The rule which Justice Connors was found to have violated mandates a judge’s recusal ‘in any proceeding in which the judge’s impartiality may be reasonably questioned,’ ” said Cox, the attorney who filed the complaint. “That same rule applies to the judges who must now finally determine whether a violation by their fellow justice, Justice Connors, is proved, and if so, what the sanction will be. It seems to me that the justices in the court face a difficult decision on how to now handle this matter.”

Connors was appointed to the Maine Supreme Judicial Court by Gov. Janet Mills in 2020. All but one of the six seated justices were sworn in within a few years of each other and likely have close personal relationships, said Williams, the UNE professor.

“These are justices who have grown up on the Supreme Court together,” he said. “That’s not to say they can’t be unbiased, but it certainly does present questions about the impartiality of the proceedings and the decision.”

Bam, at the UMaine law school, agreed that having members of the same collegial court decide could be problematic.

There are risks on both ends – a colleague trying to get back at another or the desire to protect one of their own, he said.

Bam advocated for an independent body to have oversight of judicial ethics issues.

“In litigation, we’ve accepted that part of a good judicial process is having an independent arbiter,” he said. “We should take the lessons we’ve learned from the legal process and apply that to legal and ethics issues (for the judiciary) as well.”