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In re Nadeau

Supreme Court of Maine

July 21, 2016

IN THE MATTER OF ROBERT M.A. NADEAU

          Argued: November 4, 2015

         Counsel on the filings and at oral argument:

          Cabanne Howard, Esq., Committee on Judicial Responsibility and Disability, Portland, for the Committee on Judicial Responsibility and Disability

          Stephen B. Wade, Esq., Skelton, Taintor & Abbott, Auburn, for Robert M.A. Nadeau

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] The Committee on Judicial Responsibility and Disability has filed a report with the Supreme Judicial Court against Probate Judge Robert M.A. Nadeau, alleging several violations of the Maine Code of Judicial Conduct[1] based on statements he made in a letter to counsel regarding a court proceeding in which he was a party, and based on his judge-related Internet and social media activity. The Committee has also recommended that we impose sanctions against Judge Nadeau as a result of the alleged violations.

         [¶2] A de novo evidentiary hearing was held before a Hearing Justice (Clifford, J.) designated by the Court. Based on the findings of the Hearing Justice, which are properly supported by the record, we conclude that Judge Nadeau committed one actionable violation of the Code based on statements he made in the letter to counsel. Further, because of the seriousness of this violation, we impose a public censure and reprimand, and a thirty-day suspension from the performance of his duties as judge of the York County Probate Court.

         I. PROCEDURAL BACKGROUND

         [¶3] In matters of judicial discipline, "[t]the Supreme Judicial Court has exclusive original jurisdiction." In re Nadeau, 2007 ME 21, ¶ 10, 914 A.2d 714 (quotation marks omitted). Invoking that authority, in October 2014 the Committee filed with the Supreme Judicial Court a five-count report against Judge Nadeau. See M.R. Comm. Jud. Responsibility & Disability 3 (Tower 2013).[2] In a procedural order, the Chief Justice, acting for the Court, appointed an Active Retired Justice of the Court to preside as Hearing Justice and conduct a de novo hearing at which the Committee and Judge Nadeau could present evidence on the allegations. See In re Ross, 428 A.2d 858, 860 (Me. 1981). The procedural order specified that the Hearing Justice's findings were to be treated as those of a referee pursuant to M.R. Civ. P. 53(e)(2).

         [¶4] After holding a hearing in February 2015, the Hearing Justice issued several orders containing findings of fact, which we adopt because they are supported by the record, see In re Nadeau, 2007 ME 21, ¶ 10, 914 A.2d 714, and in any event are not in material dispute. In the orders, the Hearing Justice concluded that the Committee had established four of the five alleged violations.[3] Pursuant to a subsequent procedural order issued by the Court, the parties filed further arguments on the merits of the Committee's charges and on the issue of what sanctions, if any, should be imposed were we to determine that Judge Nadeau's conduct violated the Code.

         [¶5] Based on the findings rendered by the Hearing Justice sitting as a referee, we proceed to determine, on a de novo basis, whether Judge Nadeau violated the Code. See id. ¶ 5. In doing so, we give no deference to the Committee's report, see id. ¶ 10, even though the Committee is charged with deciding administratively whether a charge "has been established, " M.R. Comm. Jud. Responsibility & Disability 2(I) (Tower 2013). "The Committee bears the burden of proving the allegations contained in its report." In re Nadeau, 2007 ME 21, ¶ 10, 914 A.2d 714.

         II. VIOLATIONS ALLEGED BY THE COMMITTEE

         [¶6] Judge Nadeau is the York County Probate Judge, which, like all Probate Court judicial offices in Maine, is an elected office. Judge Nadeau held that judicial office from 1996 to 2008, when he was defeated in a primary election, and again from his re-election in 2012 to the present. The office of probate judge is a part-time position, and at all times pertinent to this case Judge Nadeau has maintained a private law practice as he is permitted to do. The allegations contained in the Committee's report highlight the tension that can emerge between the ethical responsibilities that arise from holding judicial office and a judge's extra-judicial activities.

         [¶7] After a brief discussion of the principles and application of the Code, we consider the two counts that are based on statements that Judge Nadeau wrote in a letter to an attorney who represented the adverse party in a case where Judge Nadeau was an unrepresented party. We then turn to the two remaining counts, which are based on a website and a Facebook page that Judge Nadeau created through a media consultant.

         A. Code of Judicial Conduct

         [¶8] The delivery of justice and public confidence in the integrity of the judiciary necessarily rests on judicial officers' adherence to the ethical standards prescribed in the Code. As is true with the current Canons, see M. Code Jud. Conduct preamble, the Canons in the 1993 Code, which governs this proceeding, were designed to ensure that judges act in a way that is fitting of judicial office and fulfills their crucial responsibility to protect the "public trust" of a system that is founded on the rule of law, see M. Code Jud. Conduct preamble (Tower 2013). In this way, members of the public can be justified in having confidence in and respect for both the institution of the judiciary as a whole and the proper adjudication of specific disputes.

         [¶9] As the Preamble to the 1993 Code made clear, the Canons provided "rules of reason."

It is not intended . . . that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the Code and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity, and the effect of the improper activity upon others or upon the judicial system.

Id. Therefore, the application of the Canons requires sensitivity to the extraordinarily important objectives they served, viewed in the particularized "circumstances and conditions in which judges must operate." Advisory Committee's Notes to 1993 promulgation of former M. Code Jud. Conduct at 6 (effective Sept. 1, 1993) (hereinafter, "Advisory Notes").

         [¶10] Although Judge Nadeau was not acting in an immediate judicial capacity when he engaged in the conduct at issue in this proceeding, his conduct remained subject to the standards created in the Code. Canon 4 of the 1993 Code was devoted expressly and entirely to a judge's conduct outside of the judicial realm, covering activities that are avocational, governmental, civic, charitable, financial, fiduciary, and professional. See M. Code Jud. Conduct I(4) (Tower 2013).[4] The Code's reach beyond the bench to conduct such as that at issue here was necessary because judges are the face of the judiciary, and their extra-judicial conduct and activities-like their conduct in the judicial role-reflect on the court system. As is stated in a leading treatise on judicial ethics,

Judges are held to higher standards of integrity and ethical conduct than attorneys or other persons not invested with the public trust. This heightened standard of conduct extends beyond the limits of the judge's court, for "a judge's duty does not stop at the robing room door." Even in a judge's personal life, he or she must adhere to standards of probity and propriety far higher than those deemed acceptable for others.

         Charles Gardner Geyh et al., Judicial Conduct and Ethics § 1.02 at 1-4 (5th ed. 2013) (alteration omitted) (citation omitted). This important observation explains why a judge's conduct, even outside of the direct exercise of judicial responsibilities, remains subject to the ethical constraints created by the Code. See In re Cox, 658 A.2d 1056, 1058 (Me. 1995) (applying the Code to a judge's conduct in a personal real estate transaction). Therefore, we must consider the impact of the Canons on Judge Nadeau's conduct with an eye toward the critical justification for applying the Canons to extra-judicial activities: promoting and maintaining public confidence in the integrity of the judiciary.

         [¶11] With these underlying principles in mind, we consider the four counts of the report that the Committee presses.[5]

         B. Letter to Counsel

         [¶12] Two of the counts in the Committee's report are based on different portions of a letter that Judge Nadeau sent to an attorney who practices in a firm located in York County.

         1. Comments Directed to Counsel (Count 3)

         [¶13] In 2013, while a judge but in his personal capacity, Judge Nadeau commenced an action in the Maine District Court for protection from harassment against his former girlfriend, who lived in Massachusetts. Judge Nadeau was not represented by counsel in that proceeding, but an attorney represented his former girlfriend. In his complaint for protection from harassment, Judge Nadeau alleged that the former girlfriend improperly disclosed confidential or otherwise private medical and other information about him. While the case was pending, Judge Nadeau wrote a letter to the former girlfriend's attorney of record, stating,

You know that, putting aside your training and evident desire to simply argue and advocate, you need to advise your client to pull her book and internet advertising immediately, at a minimum, under the circumstances. This is a matter of, at the minimum, clearly protected medical privacy. The consequences of not doing so can be devastating, not only for her and her best friend, but probably even for you, and their former or current [Massachusetts] lawyer. . . . You can posture all you want in the interest of advocacy. But absent immediate, legitimate responsibility and cooperation designed to achieve amicable, nonmonetary resolution of whatever issues your client and I apparently have, I respectfully submit this is going to become very bad for your client, you and your law firm.

(Emphasis added.) Judge Nadeau's letter also included the following statement in a footnote:

I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as "his eminence." If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the ...

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