In the Matter of Robert M.A. Nadeau , 2018 ME 18 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 18Docket: Jud-17-2
Submitted
On Briefs: November 29, 2017
Decided: January 25, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
IN THE MATTER OF ROBERT M.A. NADEAU
PER CURIAM
[¶1] In May 2017, the Committee on Judicial Responsibility and
Disability filed a report with us in our capacity as the Supreme Judicial Court
alleging that former York County Probate Judge Robert M.A. Nadeau violated
Rule 2.11(A) of the Maine Code of Judicial Conduct1 when he participated in the
parties’ resolution of a case after acknowledging that he would be required to
recuse for bias if an evidentiary hearing in the matter were necessary. We
conclude that Judge Nadeau’s2 conduct constituted a violation of Rule 2.11(A),
and we impose a public reprimand.
1 Because the conduct at issue occurred after September 1, 2015, the current Code of Judicial
Conduct applies. M. Code Jud. Conduct II.
2 Although Robert M.A. Nadeau no longer holds judicial office, he will be referred to as
“Judge Nadeau” for purposes of this opinion because he was a sitting judge at the time the conduct at
issue occurred. See In re Nadeau, 2017 ME 121, ¶ 2 n.1, 168 A.3d 746.
2
I. FACTS AND PROCEDURE
[¶2] The facts are not disputed. On August 6, 2015, Judge Nadeau
appointed Kerri Gottwald to serve as guardian for the minor daughter of
Devora Gavel. Sometime thereafter Gavel made negative social media postings
concerning Judge Nadeau, to which a person using the name of Judge Nadeau’s
wife responded. Judge Nadeau acknowledges in his brief that he was aware of
Gavel’s postings.
[¶3] In April 2016, after Judge Nadeau was made aware of Gavel’s
postings, Gottwald asked the York County Probate Court to order Gavel to pay
child support. In an order signed May 2, 2016, directing the Register of Probate
to schedule a hearing on Gottwald’s request, Judge Nadeau noted that “[t]he
Court may also consider the undersigned judge’s disqualification at the
hearing.”
[¶4] On June 27, 2016, Gavel’s counsel filed a “motion to transfer,” asking
that Judge Nadeau recuse and that the case be heard by another judge,
citing (1) former M. Code Jud. Conduct Canon 3(E)(2) (Tower 2014);3
(2) Judge Nadeau’s own suggestion that his disqualification might be required;
3 Former Canon 3(E)(2) provided that, “A judge . . . shall disqualify himself or herself on a motion
for recusal made by a party, in any proceeding in which the judge’s impartiality might reasonably be
questioned . . . .” M. Code Jud. Conduct Canon 3(E)(2) (Tower 2014).
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and (3) Gavel’s wishes. On July 5, 2016, the day of the scheduled hearing, Gavel
filed a pro se motion to recuse, citing the negative social media exchange that
she had had with “Judge Nadeau and/or his wife,” and asserting that
“Judge Nadeau is biased against me and therefore should have recused himself
upon my request on June 27th, and in fact should have recused himself without
my insist[e]nce.”
[¶5] The matter proceeded to a hearing on July 5 at which both parties
were represented by counsel. At the outset, Judge Nadeau acknowledged both
Gavel’s pro se motion to recuse and her counseled motion to transfer. He then
stated that “[t]he only issue before the Court . . . is child support”; discussed the
“generally rote” nature of child support calculations; inquired of Gottwald’s
counsel whether Gottwald contested the income that Gavel reported in her
child support affidavit; and asked Gavel’s counsel to confirm the amount,
source, and effective date of that income. During that discussion, Gavel’s
counsel advised Judge Nadeau that Gavel was “uncomfortable” with
proceeding, “feeling that in her view . . . there is possibly some reason for
something to go more harshly against her.” Gottwald’s counsel advised the
court that, “I’m not satisfied that [the income information provided by Gavel] is
the information to be used for calculation of [child support].”
4
[¶6] At that point, after asking Gottwald’s counsel, “So how do you want
to proceed?” Judge Nadeau said,
So then if I am charged with having to do a hearing as opposed to
just having agreed upon numbers, then I have to assess
credibilities. And, at this point, because I do have problems with
Ms. Gavel’s credibility, I would then have to grant the motion to
recuse.
[¶7] Gottwald’s counsel expressed confusion as to why Judge Nadeau
was taking that stance and noted that “[i]f the Court had a hearing before and
had an issue with credibility and the Court issued an order based on that,
there’s no grounds for recusal.”4 After asking counsel whether he had seen
“what Ms. Gavel has just submitted,” Judge Nadeau advised that “if there were
an evidentiary hearing, I think, it would be appropriate for me to disqualify
myself.”
[¶8] Gottwald’s counsel then said that he would advise Gottwald to
“accept the child support now just based on the numbers that are before [the
court] . . . [a]nd that . . . avoids an evidentiary hearing, I suppose.” Judge Nadeau
responded, “Okay. I mean, it’s up to [Gottwald]. I don’t want to deprive her of
her right to have a hearing. But if she doesn’t want to contest the numbers that
4 Counsel was correct. We have said that “[g]enerally, knowledge gained in a prior proceeding is
not a sufficient ground to recuse a judge in a subsequent matter.” In re J.R. Jr., 2013 ME 58, ¶ 17,
69 A.3d 406 (quotation marks omitted); see M. Code Jud. Conduct R. 2.11(A)(1).
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Ms. Gavel is presenting, that’s easy.” Gavel’s counsel, after a private discussion
with her client, told the court that Gavel would accept a child support order
requiring her to pay $23 per week based on income of $240 per week.
[¶9] Gottwald’s counsel then asked for “stipulations” to the child support
order that would require Gavel to provide annual documentation verifying her
income. Gavel demurred, stating through counsel that she “probably would not
agree to that. . . . She’s really uncomfortable with the exchange of any
information.” Judge Nadeau responded that “[i]t’s normally what we see in
child support matters . . . [Gottwald’s] request is pretty standard, at least insofar
as the reporting is concerned.” To this, Gavel’s attorney said, “We’d be satisfied
with the Court’s ruling.”
[¶10] In his brief, Judge Nadeau describes what followed as him serving
“in the capacity of a settlement judge only,” as he negotiated the retroactive
starting date for Gavel’s child support obligation, the ongoing income
verification that she would be required to provide, and the terms under which
she would provide it.5 At the conclusion of the hearing, Judge Nadeau denied
without prejudice Gavel’s motions to recuse and to transfer.
5 The final child support order, dated July 5, 2016, required Gavel to pay Gottwald $23.00 per
week, retroactive to May 20, 2016. It further provided that
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[¶11] Nine days later, Gavel filed a complaint against Judge Nadeau with
the Committee on Judicial Responsibility and Disability, asserting, in part, that
“it is my belief that Nadeau intentionally refused to recuse himself, with full
knowledge and awareness of his clear bias, in an effort to retaliate against,
humiliate and bully me for speaking out against him in the upcoming election.”
(Emphasis in original.) The Committee reported the matter to us and
recommended disciplinary action against Judge Nadeau for violating
Rule 2.11(A). Both the Committee and Judge Nadeau filed briefs and the report
is now in order for our consideration.
II. DISCUSSION
A. Judicial Misconduct
[¶12] The Maine Supreme Judicial Court “has exclusive original
jurisdiction in matters of judicial discipline.” In re Nadeau, 2017 ME 121, ¶ 3,
Devora Gavel shall report to the Court within 7 days after she secures any form of new
employment the name and address of her employer and she shall submit to the Court
an [updated] Child Support Affidavit with satisfactory evidence from the employer
with the actual or prospective amount of her compensation whereupon the Register
shall notify [Gottwald] through her attorney that employment has been secured and
shall supply a copy of the Child Support Affidavit and supporting documents and a
hearing shall be scheduled forthwith to review child support adjustments. Further,
Devora Gavel shall provide to the Court by not later than January 31, 2017 a copy of
all W-2’s she received for tax year 2016 and shall provide to the Court by not later
than April 20, 2017 a copy of her 2016 income tax returns, all copies to be held under
seal by the Court and not released to [Gottwald] or her counsel unless the documents
demonstrate that further income from employment received by Devora Gavel after
the date of this order has been received, noting that any recalculation may be made
retroactive to the receipt of any additional income.
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168 A.3d 746 (quotation marks omitted). As a judge of the Probate Court at the
time of the hearing in this matter, Judge Nadeau was required to comply with
Rule 2.11(A) of the Maine Code of Judicial Conduct. M. Code Jud. Conduct I(B).
The Rule provides, in part:
(A) A judge shall disqualify or recuse himself or herself in any
proceeding in which the judge’s impartiality might reasonably be
questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a party
or a party’s lawyer, or the judge has personal knowledge of facts
that are in dispute in the proceeding when the personal
knowledge that would form the basis for disqualification has
been gained outside the regular course of present or prior
judicial proceedings.
M. Code Jud. Conduct R. 2.11(A)(1).
[¶13] Because of the combined effect of Judge Nadeau’s wife’s direct
contact with Gavel through social media postings that Judge Nadeau was aware
of, and Judge Nadeau’s acknowledgement that he had a bias that would require
his recusal, Rule 2.11(A) required Judge Nadeau to recuse. Judge Nadeau
acknowledged that he harbored a bias against Gavel at the outset of the hearing.
The source of that bias was evidently the extra-judicial negative social media
exchange involving Gavel, because when Gottwald’s counsel pointed out that a
credibility determination based on a prior court proceeding did not require
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recusal, Judge Nadeau referenced Gavel’s pro se motion to recuse, in which she
cited only the social media exchange, and then again said that “if there were an
evidentiary hearing, I think, it would be appropriate for me to disqualify
myself.” Despite the litigant’s indication that she was “uncomfortable” with the
process, Judge Nadeau actively participated in negotiating and ultimately
approving the final result, which, as evidenced by the detailed directive to Gavel
concerning her potential future income, see supra n.5, required considerable
judicial involvement.
[¶14] Judge Nadeau’s actions were contrary to Rule 2.11(A)(1), which
mandates recusal when “[t]he judge has a personal bias or prejudice
concerning a party.” M. Code Jud. Conduct R. 2.11(A)(1). The Rule, using the
command “shall,” leaves no room for judicial discretion in that circumstance,
and the parties had no power to waive Judge Nadeau’s disqualification for
personal bias. See M. Code Jud. Conduct R. 2.11(C) (providing that parties may
agree to waive a judge’s disqualification “other than for bias or prejudice under
section A of this Rule”).
[¶15] We emphasize that “judges should avoid recusal in situations when
parties engage in actions seeking to cause recusal.” State v. Murphy,
2010 ME 140, ¶ 18, 10 A.3d 697. We also recognize that rulings against a
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litigant or knowledge gained by a judge in a prior or related court proceeding,
including impressions of a litigant’s personal history or credibility, are not
sufficient grounds to recuse a judge in a subsequent matter. See Dalton v.
Dalton, 2014 ME 108, ¶ 25, 99 A.3d 723; In re J.R. Jr., 2013 ME 58, ¶¶ 17-18,
69 A.3d 406.
[¶16] Two factors distinguish this matter from cases where a party to
litigation engages in actions seeking to cause recusal or where a judge has made
decisions or gained information about a litigant in a prior or related court
proceeding that causes the litigant to seek the judge’s recusal from the
proceeding. First, Gavel made negative social media postings about
Judge Nadeau after he had awarded guardianship of her daughter to Gottwald,
and Judge Nadeau’s wife, or someone in his household, responded to those
postings outside of the normal course of judicial proceedings. Second, Judge
Nadeau recognized his potential disqualification sua sponte in a scheduling
order that he signed almost two months before Gavel first asked him to recuse.
[¶17] This is not a case where recusal is at issue “merely because a
completely unfounded claim of prejudice is lodged against [a judge].” Murphy,
2010 ME 140, ¶ 18, 10 A.3d 697 (alteration and quotation marks omitted).
Judge Nadeau appropriately determined, in saying that he would “have to grant
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the motion to recuse” if an evidentiary hearing were required, that the effect of
the social media exchange with Gavel meant that “[his] impartiality might
reasonably be questioned” should he continue. M. Code Jud. Conduct R. 2.11(A).
B. Sanction
[¶18] Having found that Judge Nadeau violated the Rule, we must
consider an appropriate sanction. In our decision concerning Judge Nadeau’s
most recent appearance before this Court for a violation of judicial ethics, we
said that
[i]n fashioning an appropriate sanction, we examine multiple
factors, including the judge’s professional history, the context
within which the violations occurred, the harm to the litigants and
public, the seriousness of the violations, the judge’s
acknowledgement of the violations and understanding of the
impact on the litigants, and the prospects for ensuring public trust
and confidence in the judge’s work in the future. A sanction must
be sufficient to deter the individual being sanctioned from again
engaging in such conduct and to prevent others from engaging in
similar misconduct in the future.
We have the inherent authority to impose a variety of
sanctions as judicial disciplinary measures—some of which
Judge Nadeau has already been subject to. Available sanctions
include, but may not be limited to, requirements for obtaining
appropriate assistance or ethics education, censure, reprimand,
forfeiture of funds, suspension from duties, and disbarment or the
lesser sanction of suspension from the practice of law.
In re Nadeau, 2017 ME 121, ¶¶ 2 n.2, 60-61, 168 A.3d 746 (citations and
quotation marks omitted).
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[¶19] We conclude that although a sanction resulting from this violation
is warranted in order to deter others from similar misconduct, in
Judge Nadeau’s case that need is tempered by the reality that he is no longer a
judicial officer and is currently serving a lengthy suspension from the practice
of law. Id. ¶¶ 2 n.1, 63. Accordingly, we accept the Committee’s
recommendation and hereby order that Robert M.A. Nadeau be publicly
reprimanded for violating Rule 2.11(A) of the Maine Code of Judicial Conduct.
The entry is:
It is ORDERED that former York County
Probate Judge Robert M.A. Nadeau be, and
hereby is, reprimanded for violation of
Rule 2.11(A) of the Maine Code of Judicial
Conduct as alleged in the Report of the
Committee on Judicial Responsibility and
Disability.
Cabanne Howard, Esq., Committee on Judicial Responsibility and Disability,
Portland, for the Committee on Judicial Responsibility and Disability
Robert M.A. Nadeau, pro se