Maine’s Committee on Judicial Conduct has reportedly said that Justice Catherine Connors of the Maine Supreme Judicial Court violated the Maine Code of Judicial Conduct by participating in two cases that ultimately overturned recent precedent with respect to the state’s foreclosure law, according to the Portland Press Herald.
The Committee conducts its proceedings in secret and reportedly filed its recommendation concerning Justice Connors on October 11.
Under Maine’s Code of Judicial Conduct, a judge must recuse him or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned.”
The complaint focuses on a selection of cases pertaining to foreclosures, which in Maine are a type of court case typically brought by a lender to sell a borrower’s home to satisfy a debt.
The first step in this process is to send the homeowner a notice of default letter explaining how much is owed, when it is owed, and what can be done to “get back on track” and avoid foreclosure. State statute expressly delineates exactly what must be included in such a letter for it to be considered valid for the purposes of a foreclosure case.
Following the Maine Superior Court’s unanimous rulings in cases such as Pushard v. Bank of America and Federal National Mortgage Association v. Deschaine, if a “defective” notice of default is sent, the mortgage is deemed unenforceable, a foreclosure suit cannot ever again be filed for the property, and the mortgage is discharged. This, in effect, means that the borrower’s home becomes free of charge from that point forward.
In January of this year, however, the Maine Supreme Judicial Court overturned this precedent in the case of Finch v. U.S. Bank, N.A. with a 4-3 ruling referred to by the Justices as a “course correction.” With this decision, lenders will no longer lose the right to enforce a mortgage due to a “defective” default notice.
That same month, the Court made a 5-2 ruling in a similar case. Connors voted in the majority for both of these decisions.
Previously, Connors reportedly had served as an attorney and filed the appellate brief for Bank of America in Puchard and filed an amicus brief in Deschaine.
Shortly thereafter, foreclosure attorney Thomas A. Cox filed a formal complaint against Connors alleging that she should have recused herself from these recent cases.
“My intent in filing the complaint is to put those exact issues out in the open, so that there can be a public discussion of them and a resolution of whether what happened here was appropriate or not,” Cox said at the time, according to Maine Public.
This was not the first time that Connors has been asked about recusals with respect to foreclosure cases. During her 2020 confirmation hearing, she indicated that she expected there to be “significant recusals” for foreclosure cases coming before the Court, saying that she would “err on the side of recusal” if ever in doubt.
The Portland Press Herald has reported that Jeffrey Evangelos — a former Maine State Representative on the Judiciary Committee — “formally requested” in 2022 that Connors recuse herself from one of the foreclosure cases set to come before the Court.
Evangelos went on to tell the outlet that Connors had ultimately “betrayed his trust” in not recusing herself.
The Judicial Conduct Committee was said to have cited Evangelos’ disappointment in its decision, noting that “the public outcry concerning her participation” is evidence that a “reasonable person” as defined in statute would question her impartiality.
The Portland newspaper went on to report that Connors had asked the Judicial Ethics Committee if she should recuse herself and was told that doing so was not necessary as the proceedings in which she previously was involved were separate from those before the Court at the time. Based on this advice, Connors decided to sit for these cases.
“Homeownership and foreclosure actions are serious matters and of concern to Mainers. Justice Connors’ lack of sensitivity to the appearance of impropriety should have been, but apparently was not, self-evident,” wrote John A. McArdle, counsel to the Judicial Ethics Committee.
“Justice Connors’ failure to be sensitive to the appearance of impropriety and recuse herself in the face of it, not only violates the Judicial Code of Conduct, but it undermines public confidence in the judiciary,” he said.
“Despite overwhelming information that could, and would, cause a reasonable person to question her impartiality, Justice Connors chose to actively participate in the Finch and Moulton before even seeking outside guidance,” McArdle wrote.
“Then, after she was informed that she did not have to recuse, she consciously chose not to recuse, despite the appearance of impropriety which should have been self-evident,” he continued. “The public outcry concerning her participation in appeals is proof that a reasonable person not only could, but would, question her impartiality under the circumstances.”
The Committee’s October decision does not automatically mean that Connors will face disciplinary action. Should the Committee decide to proceed with this complaint, Connors’ fate will be decided by her peers on the Supreme Judicial Court, determining whether any misconduct occurred and if any disciplinary action is required.
According to the Portland Press Herald, neither Cox nor Connors could be reached for comment on this matter.
Between 2016 and 2022, only eight complaints — lodged against a total of six different judges — were sent to the Supreme Judicial Court for further consideration. The Portland-based paper’s analysis of available records suggests that during this same period, the Committee dismissed 650 comparable complaints.
