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In re Nadeau

Supreme Court of Maine

June 20, 2017

IN THE MATTER OF ROBERT M.A. NADEAU

          Argued: February 10, 2017

          Submitted On Briefs: May 22, 2017

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

          Robert M.A. Nadeau (orally), pro se.

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

          PER CURIAM

         [¶1] The Committee on Judicial Responsibility and Disability filed two reports with us-in our capacity as the Supreme Judicial Court-alleging a total of six violations of the Maine Code of Judicial Conduct by then York County Probate Judge Robert M.A. Nadeau and recommending sanctions.

         [¶2] A report, filed January 19, 2016, docket number Jud-16-1, alleged five violations of the Maine Code of Judicial Conduct arising from Judge Nadeau's actions while a judge-elect or a sitting judge.[1] A second report, filed March 16, 2017, docket number Jud-17-1, alleged one violation of the Maine Code of Judicial Conduct arising from allegations that Judge Nadeau used his law firm web page to solicit donations to support his campaign for reelection as York County Probate Judge. Because the two reports from the Committee were filed at different times and were considered through different procedures by the Committee and this Court, the ethical violations addressed in each report will be addressed separately in this opinion.

         I. CASE HISTORY[2]

         A. Jud-16-1 Proceedings

         [¶3] "[T]he Supreme Judicial Court has exclusive original jurisdiction" in matters of judicial discipline. In re Nadeau, 2007 ME 21, ¶ 10, 914 A.2d 714. Invoking that authority, on January 19, 2016, the Committee filed a report alleging that Judge Nadeau committed five violations of the Maine Code of Judicial Conduct.[3] See M.R. Comm. Jud. Responsibility & Disability 3.

Count 1 alleged that then Judge-elect Nadeau's directive to the Register of Probate of York County not to include seven attorneys on the court appointed attorney list was motivated by his previous contentious relationship with those attorneys, in violation of Judicial Canons 2(B) and 3(C)(4);
Count 2 alleged that Judge Nadeau's removal of an attorney from cases to which she had previously been appointed was motivated by her association with an attorney with whom Nadeau had a contentious relationship, in violation of Canon 2(A) and (B);
Count 3 alleged that-in a case in which he had recused himself- Judge Nadeau ordered an attorney to destroy a lawfully obtained public document, in violation of Canon 2(A);
Count 4 alleged that Judge Nadeau's abrupt overhaul of the Probate Court schedule was motivated by his anger with the York County Commissioners when his request for a pay increase was rejected, in violation of Canons 1, 2(A) and (B), and 3(B)(8); and
Count 5 alleged that Judge Nadeau was, through oral and written orders, encouraging litigants before him to contact their county officials to lobby for increased court funding, which would also increase his salary, in violation of Canon 2(B).

         [¶4] The Committee requested that Judge Nadeau be fined $10, 000 and, by means of a conditional suspension from the practice of law, be barred from ever holding judicial office again.

         [¶5] Following receipt of the report in Jud-16-1, the Court, in a procedural order dated February 22, 2016, appointed an Active Retired Justice of the Supreme Judicial Court (Clifford, J.) to preside as a Hearing Justice and to conduct a de novo hearing at which the Committee and Judge Nadeau could present evidence and argument regarding the allegations. See In re Ross, 428 A.2d 858, 860 (Me. 1981).

         [¶6] A two-day evidentiary hearing was held on May 10 and June 16, 2016. The Hearing Justice issued findings on July 15, 2016. Based on those findings, the Hearing Justice concluded that the Committee had proved four of the five counts alleged in the Committee's report. Pursuant to a subsequent procedural order, we requested that the parties file further argument on the merits of the Committee's charges and on what sanctions, if any, should be imposed if we were to conclude that a violation or violations of the Code had occurred. The Hearing Justice's detailed findings and conclusions are now before us for consideration and decision after receiving briefs and, on February 10, 2017, hearing arguments by the Committee and Judge Nadeau.

         B. Jud-17-1 Proceedings

         [¶7] On March 16, 2017, approximately one month after oral argument in the Jud-16-1 matter, the Committee filed its second report. This report alleged a single violation of the Maine Code of Judicial Conduct by Judge Nadeau while he was a candidate for reelection as Probate Judge. The report had been filed after the Committee had notified Judge Nadeau of the alleged violation and, by letters dated November 13, 2016, and January 17, 2017, Judge Nadeau had waived a hearing before the Committee regarding the alleged violation.

         [¶8] The report alleged that "on or about June 14, 2016, Judge Nadeau violated this Rule[4] by posting a message on his private law firm website that stated, among other things, 'It will be important for me to have lots of support, including donations to my campaign's committee known as the Committee to Re-elect Judge Nadeau (in care of [a named individual and address]).'" The Rule at issue in the report is Rule 4.2 (C) (1) of the Code of Judicial Conduct (effective September 1, 2015), [5] which states:

(C) A candidate for election or reelection as judge of probate shall not:
(1) Personally solicit or accept campaign contributions or personally solicit publicly stated support.

         [¶9] After the parties' initial filings and responses, we issued procedural orders confirming that (1) attachments A through F to the parties' filings constituted the factual record upon which a decision could be based; (2) no further argument before this Court was requested; and (3) a briefing schedule was set after which the report proceeding in Jud-17-1 would be decided along with the report proceeding in Jud-16-1. The briefing schedule having been adhered to, with a final brief filed on May 22, 2017, the matter is now ready for decision.

         II. FINDINGS AND CONCLUSIONS

         A. Judicial Misconduct in Jud-16-1

         [¶10] Pursuant to our February 22, 2016, procedural order, the Hearing Justice's findings "shall be treated in the same manner as findings made by a referee pursuant to M.R. Civ. P. 53(e)(2)." Rule 53 instructs that the court "shall adopt the referee's findings of fact unless clearly erroneous." M.R. Civ. P. 53(e)(2); see also Hennessy v. Fairley, 2002 ME 76, ¶¶ 17-18, 796 A.2d 41. Because the findings of the Hearing Justice are supported by the record, we adopt those findings.[6] See In re Nadeau, 2016 ME 116, ¶ 4, 144 A.3d 1161 (adopting findings of the Hearing Justice that are properly supported by the record).

         [¶11] Based on the adopted findings, we proceed to determine, on a de novo basis, whether Judge Nadeau violated the Code. Id. ¶ 5. In doing so, we "give no deference to the Committee's report, even though the Committee is charged with deciding administratively whether a charge has been established." Id. (citation omitted). The burden of proving the allegations contained in the report rests with the Committee. Id.

         [¶12] "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." Id. ¶ 8. The Judicial Canons are in place to provide an ethical guide to judicial conduct and 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." Id. As the Preamble to the 1993 Code made clear, the Canons provide "rules of reason." See M. Code Jud. Conduct Preamble (Tower 2014).

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. Thus, "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.'" In re Nadeau, 2016 ME 116, ¶ 9, 144 A.3d 1161 (quoting Advisory Committee's Notes to Preamble, 1993 promulgation of former M. Code Jud. Conduct (effective Sept. 1, 1993), available at West's Maine Rules of Court Annotated 594 (Thomson Reuters 2016)).

         [¶13] With these considerations in mind, and after review of the adopted findings and applicable Canons of Judicial Conduct, we concur with the Hearing Justice's conclusions as to Counts 1, 2, and 5. As to Count 3, we adopt the Hearing Justice's findings, but we conclude, as a matter of law, that Judge Nadeau's conduct addressed in Count 3 resulted in a violation of the applicable Canons of Judicial Conduct. As to Count 4, we adopt the Hearing Justice's findings, but we conclude, as a matter of law, that no violation of the applicable Canons of Judicial Conduct has been demonstrated.

         [¶14] Robert M.A. Nadeau served as the elected Probate Judge in York County. (FoF. 2.) He was elected to that position in 1996, 2000, and 2004. (FoF. 2.) He lost the election for the Probate Judge position in 2008, but he was once again elected in 2012. (FoF. 2.) The conduct at issue took place following his election in 2012 and prior to completion of his term and leaving office on January 1, 2017. See Me. Const, art. VI, § 6.

         1. Do Not Appoint Directive

         [¶15] Following his reelection in November of 2012, then judge-elect Nadeau sent an email to the York County Register of Probate, Carol Lovejoy, and directed that she not include seven attorneys on the list of attorneys eligible to receive court appointments for cases in the York County Probate Court. (FoF. 2-3.) Regarding four of the seven attorneys-Thomas Elias, Pamela Holmes, Amy McGarry, and Vicki Mathews-judge-elect Nadeau stated in his email that he "lack[ed] confidence in their veracity." (FoF. 3.) As to the remaining three attorneys-Amanda Ramirez, Angela Thibodeau, and Sharon Ward-he stated that it would be best not to appoint them because they were associated in their law practice with Attorney Holmes. (FoF. 3.)

         [¶16] Attorneys Elias and Holmes had been associated with Nadeau in his law firm and were later involved in litigation with Nadeau when they decided to leave his practice. (FoF. 3.) That litigation was very contentious. (FoF. 3.) Attorney McGarry also practiced in Nadeau's law firm, but she left and began practicing with Attorney Holmes. (FoF. 4.) Attorney Mathews had supported Judge Nadeau's political opponent in the 2012 election for ...


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