The Goose Rocks reconsideration was argued yesterday, and we'll have more on that soon. But in the meantime, let's talk about the SJC's decision today in the appeal of the single justice's decision in F. Lee Bailey v. Board of Bar Examiners, 2014 ME 58. I blogged on the argument in this appeal earlier. (What's new at the Law Court? 1/17/14). In a 4:2 decision, the Court reversed the single justice's ruling.
First, a recap. Mr. Bailey sought admission to the bar in Maine. He has been disbarred elsewhere. The Maine Board of Bar Examiners ruled 5:4 against his admission. The ruling was appealed by Mr. Bailey to a single justice, Justice Alexander. Justice Alexander ruled, after some hesitation given a pending tax lien, that Mr. Bailey should be admitted. The Board then appealed that ruling to the whole SJC. Justice Levy wrote for the majority, consisting of himself and Justices Mead, Gorman and Jabar. Chief Justice Saufley and Justice Clifford dissented.
Hold the phone, Cathy, you say, Justice Clifford? And where's Justice Silver?
Speculating on the latter, Justice Silver is the liasion for the Board of Bar Examiners, and so perhaps he recused himself on those grounds.
As to the former, yes, Justice Clifford is no longer an active member of the SJC, but may sit when so assigned by the Chief Justice under 4 M.R.S. s. 6. Why did CJ Saufley assign him to so sit in this appeal? I don't know. Nor am I familiar when this happens generally – except I can't remember the last time it did.
In any event, basically the majority found that, applying the relevant clear and convincing evidence burden imposed on a bar applicant, the record did not support the Single Justice's conclusion that this burden had been met. Conversely, the dissenters expressed the view that the majority was stepping over the role of an appellate court when re-assessing the record.
The particular issue upon which the majority concluded that Mr. Bailey had failed to meet his burden was in reflecting a sufficient understanding and remorse regarding portions of the bases relied upon by the court that had previously disbarred him. The dissenters, had their view prevailed, also would not have affirmed in toto, but would have remanded to the Single Justice for further reflection on the tax lien issue.