When the question of whether Maine Supreme Judicial Court Justice Catherine Connors violated the Maine code of judicial conduct is decided, and when there’s a ruling on if or how she should be punished, the final say won’t come from a jury of her peers.

In Maine, it has historically been up to the state supreme court to decide the outcome of all judicial disciplinary cases, including ones involving members of its own bench. But following a new set of rules posted this week by the court, that is set to change.

According to the new rules, a panel of Superior Court justices and District Court judges will decide complaints against justices of the state’s highest court. The panel of five jurists will be chosen from a pool of retired judges and the most senior active judges on the two trial courts.

The change comes a year-and-a-half after prominent foreclosure attorney Thomas A. Cox filed a complaint against Connors, who he argued should have recused herself from two 2024 cases that he says loosened protections for homeowners.

Following a months-long, closed-door investigation, the Committee on Judicial Conduct agreed with Cox and recommended in an October report that Connors be sanctioned with a public reprimand for violating the Maine Code of Judicial Conduct.

The complaint, which Cox filed in January 2024, was the first against a Maine Supreme Court justice to be forwarded from the committee to the court, let alone to receive a recommendation for discipline.

The situation brought increased scrutiny to how the state decides punishment for its highest justices.

David Sachar, director of the Center for Judicial Ethics for the National Center for State Courts, said Maine’s new rules appear to follow best practices while landing on a solution that works for the small state.

JUDGES JUDGING JUDGES

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

While the Maine committee suggested a panel similar to the one adopted by court, Connors said previously through her attorney that she felt the matter should still be settled by the Supreme Judicial Court.

And the new rules suggest there may still be room for that to happen.

If Connors feels the panel drew the incorrect “conclusions of law” in her case, she can appeal the decision to the Supreme Judicial Court.

The intent, according to the rules, “is to recognize the necessity of preserving the Supreme Judicial Court’s constitutional authority as the court of last resort on issues of Maine law. The rule of necessity operates as an exception to the requirement of impartiality.”

This isn’t unusual, according to Sachar, and is something that other states have wrestled with. The court needs to maintain its constitutional authority and there are times, he said, when a panel of five lower court judges will not be the right fit to decide an issue beyond whether there was wrongdoing, like if the justice’s right to due process was violated.

But Cox said it could negate a lot of what the new rules are trying to accomplish.

“That digs us directly back into the hole we were in before,” Cox said.

He also took issue with other parts of the rules and the lack of changes to other aspects of Maine’s process.

In other states, as recommended by the American Bar Association, a judicial conduct committee or commission made up of judges, lawyers and members of the public, investigates charges of ethics violations. If the committee determines there are grounds to proceed, it conducts a public hearing, like a trial, with evidence to decide whether there was a violation. The committee then makes a disciplinary recommendation to the supreme court (or chosen body) and the high court weighs the evidence and makes a decision. 

But in Maine, the judicial conduct committee makes its recommendations to the Supreme Judicial Court and then the court completes its own evidence and fact-finding process before making a decision. The report is more like an indictment, Cox argued. 

Robert Cummins, a Maine attorney who helped write the national bar association’s Model Code of Judicial Conduct, feels strongly that members of the public and lawyers should have more say in the final decision. 

“When it comes right down to the bottom line on all of this, the idea of judges only judging judges is a bad idea,” he said.

Cox also believes the court erred in not updating the record of its process and in differing form the recommendations laid out by the model code.

“I’m a bit mystified by why the Maine Supreme Judicial Court doesn’t see that whole set of rules as a very clear model,” he said.

THE CASES IN QUESTION

With the new rules already in effect, the court can proceed with a decision on Connors’ case and the question of recusal.

In the two foreclosure cases in question — Finch v. U.S. Bank,. N.A. and J.P. Morgan Chase Acquisition Corp v. Camille J. Moulton — the Maine Supreme Judicial Court ruled in favor of banks, with Connors in the majority.

The cases overturned precedent established in a series of 2017 cases — Pushard v. Bank of America and Federal National Mortgage Association v. Deschaine — that protected homeowners by deeming mortgages unenforceable if lenders failed to meet the requirements for notices of default.

Connors, a former attorney with a long history representing banks in foreclosure cases, represented Bank of America in the Pushard case. So, she effectively helped to overturn a case she had previously lost on appeal. She also filed an amicus brief for the Maine Bankers Association in the Deschaine case.

After hearing the oral arguments of the Finch appeal, Connors later reached out to the Advisory Committee on Judicial Ethics 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.

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, whether or not they believe they can be impartial.

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.”