The decision of the Maine Supreme Judicial Court on Wednesday in In re
Dunleavy is available in HTML format (with a link to download a PDF
version) at
http://www.courts.state.me.us/opinions/2003%20documents/03me124du.htm.
The case is notable for one of the more unusual formal judgments I have
ever seen entered by any court: "Judge Dunleavy
erred."
The case involves a Probate Judge who ran for the State Senate without
first resigning from the bench, as required by Maine's Judicial Code of
Conduct. As many of you know, similar "resign to run"
regulations have been upheld by a number of courts, including the U.S.
Supreme Court. In Maine, however, there is a statute that clearly
gives Probate Judges the right to run for political office. The
Maine SJC ruled that statute unconstitutional under the state
Constitution's separation-of-powers provisions. Like many states,
Maine has an express constitutional prohibition on the exercise by any
member of one branch of government of powers that are reserved to one of
the other branches; the SJC said essentially that judicial discipline was
a matter for the judicial branch, and the legislature could not override
the Judicial Code by statute.
Judge Dunleavy was also charged with violating a Code provision against
soliciting political contributions. He had gathered the 150 $5
contributions required to qualify him for public funding under Maine's
"clean money" system in his State Senate race. Probate
Judges, who are the only elected judges in Maine, are permitted to raise
money for their own reelection campaigns, but only during a
"window period" starting shortly before the election. The
SJC held that soliciting the clean money contributions for a political
office campaign violated the Code. Judge Dunleavy contended that
the Code, so construed, violated the First Amendment. He relied on
Republican Party of Minn. v. White and the two post-White
decisions Weaver v. Bonner (11th Cir. 2002) and Spargo v. N.Y. State Comm'n on Judicial Conduct, (N.D.N.Y. 2003). The SJC rejected this claim, holding that the Code provision was narrowly tailored to serve the state's compelling interests in preserving judicial impartiality and the appearance of impartiality. Like New York's highest court, the SJC gave Spargo fairly disrespectful treatment, finding the case distinguishable "[a]ssuming that Spargo was correctly decided."
Two concurring judges contributed the belief that "[b]ecause a judgeship is in the nature of a public trust, it is unreasonable to permit a judge to subjugate that trust to her or his personal desire to actively participate in the political process."
The odd judgment--"Judge Dunleavy erred"--came because the SJC decided that even though the judge had violated the Code, it would not impose any punishment in light of his apparently good-faith belief that the Code provisions were either superseded by statute or unconstitutional.
J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu
Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org