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Mitchell v. Judicial Ethics Committee

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 83
Docket:	Ken-99-702
 on Briefs:	April 26, 2000
Decided:	May 12, 2000




	[¶1]  James E. Mitchell appeals from a judgment entered in the
Superior Court (Kennebec County, Atwood, J.) granting the Judicial Ethics
Committee's motion to dismiss Mitchell's complaint for lack of jurisdiction. 
Mitchell contends that the Superior Court had jurisdiction to address the
merits of his complaint.  We disagree and affirm the judgment of the
Superior Court.
	[¶2]  The Judicial Ethics Committee issued an advisory opinion, No.
98-4, counselling that a judge may not serve as an elected moderator at a
town meeting or as an appointed member of a municipal board.  See Judicial
Ethics Committee, Advisory Opinion No. 98-4 (1998).  The Committee
opined that such service defeats Canon 4 of the Code of Judicial Conduct by
"compromis[ing] the apparent impartiality of the judge and the integrity of
the judiciary itself."  See id.  In response to the Committee's opinion,
Mitchell, the Kennebec County Probate Judge, filed an action in the
Superior Court seeking a declaratory judgment that he may serve as
moderator for town and school district meetings without violating the
Canons of Judicial Conduct.  Mitchell asserted that the unsolicited advisory
opinion had the practical effect of prohibiting him from acting as moderator. 
On motion of the Committee, the Superior Court dismissed the appeal for
want of jurisdiction stating that the Supreme Judicial Court has the
exclusive authority to promulgate, interpret and enforce the rules of judicial
conduct.  Mitchell then filed this appeal.  
	[¶3]  The Supreme Judicial Court established the Judicial Ethics
Committee by an order effective November 15, 1993.  See Administrative
Order establishing Judicial Ethics Committee (effective Nov. 15, 1993).  The
Judicial Ethics Committee has the authority to issue advisory opinions on
the interpretation and application of the Judicial Code of Conduct.  See id.
The Committee may render these opinions on its own initiative or at the
request of any state court, judge or judicial candidate, or the Committee on
Judicial Responsibility and Disability.  See id.  Although the courts and the
Committee on Judicial Responsibility and Disability may consider the
advisory opinions when interpreting the Code of Judicial Conduct, the
advisory opinions are not binding.  See id.  Moreover, a judge is not immune
from discipline for engaging in conduct that the Judicial Ethics Committee
sanctioned in an advisory opinion.  See id.
	[¶4]  The Superior Court properly dismissed the complaint. 
Mitchell did not have standing and the Superior Court did not have
jurisdiction.   Judge Mitchell did not have standing to appeal the advisory
opinion because no justiciable controversy existed.  See Common Cause v.
State, 455 A.2d 1, 6 (Me. 1983) (stating that a litigant must have a
particularized injury to appeal).  The Judicial Ethics Committee's advisory
opinion was not binding upon Mitchell and, therefore, did not create a
particularized injury; the opinion merely offered advice to the judiciary.  See
id.  (stating that a particularized injury exists when an action directly and
adversely affects the party's property, pecuniary, or personal rights). 
Mitchell's inability to present a particularized injury rendered him without
	[¶5]  Furthermore, the Superior Court did not have jurisdiction
because the Supreme Judicial Court has exclusive original jurisdiction over
all judicial disciplinary matters.  See Matter of Benoit, 523 A.2d 1381, 1381
(Me. 1987).  "As the only court established by our Constitution, it is
incumbent upon the Supreme Judicial Court to exercise that part of the
judicial power involved in prescribing the conduct of judges and imposing
discipline upon them for misconduct." See Matter of Ross, 428 A.2d 858,
868 (Me. 1981).  The Legislature recognized this power in 4 M.R.S.A. § 1,
which provides in relevant part: 
The Supreme Judicial Court shall have general administrative
and supervisory authority over the judicial department and
shall make and promulgate rules, regulations and orders
governing the administration of the judicial department. 
4 M.R.S.A. § 1 (1989).  Section 7 of Title 4 states that the Supreme Judicial
Court has "general superintendence of all inferior courts for the prevention
and correction of errors and abuses where the law does not expressly
provide a remedy." 4 M.R.S.A. § 7 (1989).  The Legislature has also
specifically recognized the Supreme Judicial Court's exclusive authority to
prescribe the general rules of court.  See 4 M.R.S.A. § 8 (1989).  Inherent in
the powers of superintendence and rule promulgation are the powers to
enforce and interpret the rules.  Thus, the Supreme Judicial Court has
exclusive authority to promulgate, enforce and interpret the Canons of
Judicial Conduct.
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Jed Davis, Esq. Jim Mitchell and Jed Davis, P.A. 86 Winthrop Street Augusta, ME 04330 Attorneys for defendant: Andrew Ketterer, Attorney General Paul Stern, Deputy Attorney General 6 State House Station Augusta, ME 04333-0006