The Law Court recently issued two decisions of note regarding the bailiwick of Maine’s only elected judges, the Probate Court.
1. Bleak (Tiny) House?
First, Estate of John W. Gilbert, 2017 ME 175.
This case involved the appointment of a referee by the Probate Court (Longley, J.). The wife of a decedent and one of the decedent’s children by a previous relationship were at loggerheads. The Probate Court appointed the wife as personal representative and declared that the decedent died intestate. It also, among other things, appointed a referee to propose a plan of distribution. The referee prepared a report, to which the wife objected because, among other things, the referee had held no hearing, in violation of 14 M.RS. § 1153. The Probate Court didn’t act on the objections or report, but issued a decision requiring the wife to sell the property of the estate consistent with the referee’s suggestion. Up they went to the Law Court, which vacated and remanded for the Probate Court to hold a hearing on the wife’s objections and then determine what to do with the report. Estate of Gilbert, 2016 ME 92.
Back in the Probate Court on remand, the Probate Court held a hearing about the referee report, and accepted it in major part. On appeal again, this time, in this week’s decision, the Law Court noted that the referee hadn’t held a hearing or met with the parties, violating the statute. Indeed, the report didn’t indicate what evidence the referee was relying on or where he got it.
This time around, in a lightning 12 days after submission on the briefs, the Law Court said this was error. At that point in the decision (¶9), I thought we were going to get into an interesting discussion as to whether this was prejudicial error, or whether you needed to show prejudice at all for the violation. But instead, the decision got even more interesting.
The Law Court (Gorman, J.) said (I paraphrase): “What the heck is going on here? This estate is no more than $100,000. Why is there a referee in the first place? This has been going on for five and half years, still with no disposition based on an evidentiary record, and at this point the son’s fees alone amount to $35,000. Crikey!” (¶ 10 if you want to see the verbatim text).
The Law Court remanded for the Probate Court itself to hold an evidentiary hearing and value the estate as if there had never been a referee, and to issue “an appropriate decision detailing the distribution of the estate consistent with the evidence produced at that hearing,” “as soon as possible, so that the parties have some hope of finality[.]”
For the more literary among you, I suggest a visit to the opening chapter in Dickens’ Bleak House.
2. Judge Nadeau … again
The next appeal is much more complicated, so we will dispense with a discussion of all the details, but I recommend a full reading. LeGrand v. York County Judge of Probate, 2017 ME 167.
To make a long story short, probate judges work part time. Then-Judge Nadeau (he was not re-elected) thought York County should make the post full time or almost full time, increasing his salary from $48,498 to $90,000 or $119,476. The County Commissioners increased his salary to $54,206, but otherwise demurred.
Immediately thereafter, Judge Nadeau made changes to his court schedule, and in communications doing so “expressed his resentment” as to the County’s position. (¶ 6).
The changes he made delayed previously scheduled cases. The Superior Court (Warren, J.) acting as factfinder, found that “Although Judge Nadeau stated that his schedule changes were made to serve litigants … [i]n large part, the schedule changes were intended to get back at the County Commissioners[.]” (¶ 8)
One of the parties in a delayed matter sued Judge Nadeau in his official capacity, alleging, among other things, a violation of substantive due process, seeking declaratory and injunctive relief requiring reinstatement of the old schedule.
After various proceedings (including a class certification), the Superior Court ruled against the plaintiff(s) because it concluded that any relief it could grant would not serve a useful purpose, because the schedule changes helped some categories of cases and the Superior Court was “not well equipped to intervene” in Probate Court scheduling decisions. (¶ 15.)
The Law Court affirmed, basically saying equitable relief is discretionary and reviewed for abuse of discretion. It cited the Superior Court’s reasoning that while Judge Nadeau’s changing the schedule to get back at the Commissioners might rise to the level of outrageousness necessary for a substantive due process claim, there was no need to decide that issue, because it would serve no useful purpose. The Law Court then discussed the declaratory judgment act, 14 M.R.S. § 5958 and the discretion afforded to trial judges under it to decline to provide relief.
Here is my question: Why didn’t the plaintiff(s) sue the defendant personally, and for damages, under 42 U.S.C. § 1983?
The Law Court’s decision discussed denial of a motion to dismiss based on judicial immunity because Judge Nadeau was sued in his official capacity only for equitable relief. But judicial immunity also doesn’t adhere to personal damage suits under the Civil Rights Act for actions taken by a judge not in his judicial capacity, but, e.g. administrative actions. And wouldn’t suing under the federal statute, for damages, also have reduced the discretion open to the trial court to reject awarding relief under the state declaratory judgment act? Plus provide a potential avenue for attorney’s fees?
There’s probably a good answer to my question, and even if they had done so, the result may very well have been the same. In any event, hopefully the question presented on the merits but not addressed – is it a violation of substantive due process for a judge to jigger his schedule to get back at county commissioners – will never arise again.
