A judicial review committee is recommending that Maine Supreme Judicial Court Justice Catherine Connors be publicly reprimanded for failing to recuse herself in two recent foreclosure cases, despite a possible conflict of interest.
It also wants the first-of-its-kind case considered by either a panel of Maine Superior Court judges or out-of-state judges, rather than by Connors’ peers on the state supreme court – ideally preventing another conflict of interest.
Maine Supreme Court Justice Catherine Connors speaks during testimony in a session at Lewiston High School on Oct. 10. Derek Davis/Staff Photographer
Following a months-long, closed-door investigation, the Committee on Judicial Conduct recommended in an October report that Connors be sanctioned for violating the Maine Code of Judicial Conduct but stopped short of suggesting a specific punishment. It was the first time that a state supreme court justice has been recommended for discipline.
The Maine Supreme Judicial Court remanded the report back to the committee in November, claiming it needed to be more specific in recommending disciplinary action. The committee updated its recommendation in a report issued this month.
WHO DECIDES?
The committee’s recommendation of a public reprimand is the lowest level of formal discipline – a proverbial slap on the wrist. But the updated report is simply a recommendation. It remains to be seen whether Connors will face any consequences, and it’s equally unclear how that discipline will be decided.
In Maine, it’s up to the Supreme Judicial Court to decide if there was misconduct and if so, how to proceed.
But the complaint against Connors, which was filed in January by prominent foreclosure attorney Thomas A. Cox, is the first to be forwarded from the committee to the court, let alone to receive a recommendation for discipline.
At least 15 states have rules that require supreme court justice discipline cases 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.
“Given that this is the first time that a report of a complaint concerning a Maine Supreme Judicial Court Justice has been filed with the Maine Supreme Judicial Court and the matter involves a finding of the appearance of impropriety, it would be best if present or past members of the Maine Supreme Judicial Court were spared the task of evaluating and potentially sanctioning one of their own,” John McArdle, counsel for the committee, wrote in the report. “Also, and equally importantly, the committee respectfully suggests that the best way to maintain public trust in the process of evaluating the complaint against Justice Connors requires that no present or past member of the SJC pass judgment on Justice Connors in this matter.”
Chief Justice Valerie Stanfill and Justice Andrew Mead preemptively recused themselves.
THE QUESTION OF IMPARTIALITY
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.
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, has a long history of representing banks and filed briefs representing banks and banking interests in the precedent-setting cases.
“How could her impartiality not be reasonably questioned given that the Law Court in Finch was to decide if the Pushard case, which Attorney Connors had previously lost on appeal, should be reversed?” McArdle wrote in the report.
After hearing the oral arguments of the Finch appeal, Connors later reached out to the Maine Judicial Ethics Committee 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.
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.”
The committee cited Connors’ statement at her hearing as evidence that she should have recused and in the December report, requested that her reprimand include language stating that judicial candidates “are to be candid at confirmation hearings” and that “representations by them at those hearings are to be honored … in order to preserve the integrity of, and the public’s confidence in, the judiciary of Maine.”
