A former probate judge is not immune from class action allegations that he created a backlog of cases as retaliation for a rejected pay raise.
Nor are the claims moot in light of the termination of his service, according to an opinion of the Maine Supreme Judicial Court.
But the class still lost on the merits
The difficulties posed by micromanaging a court’s scheduling policies are evident in [plaintiff] LeGrand’s proposed judgment, which would require imposition of a specific court schedule subject to ongoing, receivership-style supervision and retained Superior Court jurisdiction. Such proposed relief ignores the reality that judges and other court officials who are responsible for case and docket management need flexibility to respond deftly and often on short notice to changes in the types and numbers of pending cases. The court did not abuse its discretion by ultimately determining that, because the most significant problems created by the schedule changes had dissipated and the remaining effects of those changes were limited, declaratory and injunctive relief would not serve a useful purpose in this case. Accordingly, the court did not err in declining to reach the underlying question of whether LeGrand had established violations of substantive due process.
The Press Herald covered the case and gives background
An elected York County probate judge is being accused of creating an artificial backlog of cases in retaliation for not getting the 85 percent to 147 percent salary increase he wanted.
The York County Commissioners sent a letter to Probate Judge Robert M.A. Nadeau last week stating that when they refused in April to boost his pay from $48,499 to $90,000 or $120,000, as he asked, the judge reacted by immediately imposing scheduling delays in estate, adoptions and name change cases, bringing some probate work to a halt.
The new accusation adds to the mounting troubles for the part-time judge, who already faces possible discipline before the Maine Supreme Judicial Court on numerous counts of violating the Judicial Code of Conduct.
The state’s highest court heard arguments last week on the recommendation by the state’s Judicial Responsibility and Disability Committee that Nadeau be suspended without pay from his judicial duties for four weeks and pay $4,000 to hire a substitute judge in his absence. Nadeau’s attorney, Stephen Wade, argued that the judge shouldn’t be disciplined.
The high court has yet to rule in that case, which stems from attorney complaints in 2012 and 2013 that Nadeau used his elected position to benefit his private legal practice and to influence a case in which he was a litigant.
Now the county commissioners also are accusing the judge of abusing his office.
“As an elected official, the commissioners can take no direct action against the judge. We can only bring this nonsense to light by holding public hearings,” County Manager Gregory Zinser said in an email Monday.
EVIDENCE OF RETALIATION CITED
Zinser sent the letter on behalf of the county commissioners to Nadeau on Thursday, detailing the board’s findings about the judge’s manipulations of the probate court schedule. The letter summarizes what the commissioners learned during a public hearing Oct. 7 at which Nadeau and Registrar of Probate Carol Lovejoy both testified.
The letter says that Nadeau imposed new scheduling orders just hours after the board voted April 15 to raise his salary from $48,499 to $54,206 for working two days per week, rather than the $90,000 for three days per week or $120,000 for five days per week that he had requested.
Probate judges around the state receive different salaries set by the county governments where they work. For instance, in Cumberland County, Probate Judge Joseph Mazziotti receives an annual salary of $63,190 for a two-day work week, said county Finance Director Alex Kimball.
The commissioners’ letter cites emails that Nadeau sent on the evening of April 15 after they had voted on his salary request. The emails ordered Lovejoy to restrict the number of cases Nadeau would hear and reschedule all hearings from Wednesdays and Thursdays to Mondays and Fridays so he would get more paid holidays off.
“The Monday/Friday schedule implemented by Judge Nadeau was solely in retaliation for our decision to deny his request for a pay raise. The scheduling reduction by Judge Nadeau is having a serious impact on the users of the court,” the commissioners wrote in the letter.
As part of the commissioners’ findings against Nadeau, they included an Oct. 8 letter to them from Mary Mayhew, commissioner of the Department of Health and Human Services, expressing concern about “serious delays for adoption proceedings” in York County.
“In prior years, the average time a child and adoptive family would wait for a court date was less than 90 days after petitioning,” Mayhew wrote. “This year, the York County Probate Court offered not a single adoption date in June, July or August. Adoption petitions filed in April and May were given adoption dates as far out as February 2016.”
On Monday, Mayhew issued a statement praising the county commissioners’ findings against Nadeau.
“I am pleased to see that York County commissioners are taking appropriate action to ensure that families seeking adoption hearings are prioritized in the York County Probate Court,” Mayhew said in the written statement. “The delays were unacceptable as Maine faces a continued shortage of families willing to adopt children in need of forever-homes.”
Neither Nadeau nor his attorney responded to phone messages seeking comment Monday.
NO BACKLOG BEFORE JUDGE’S ORDERS
Cabanne Howard, executive secretary of the Judicial Responsibility and Disability Committee, declined to say what action, if any, the committee would take in response to the county commission’s accusations against Nadeau.
“Everything the committee does until it decides to make a recommendation to the Supreme Judicial Court is confidential,” Howard said.
Nadeau is accused of creating the backlog by restricting the number of cases that could be scheduled in a given court day, blocking off a quarter of his two-day work week for writing opinions and leaving one afternoon per week open, the letter says.
Lovejoy testified before the commissioners last month that before Nadeau’s orders to change scheduling, no backlog existed, according to the minutes of the Oct. 7 meeting.
Although the county commissioners have no power over Nadeau’s scheduling practices, they asked him to revert to the court schedule in effect before he changed it in April.
“To address the serious scheduling backlog created by Judge Nadeau’s changes to the Probate Court schedule, we strongly recommend that Judge Nadeau revert to the Wednesday/Thursday schedule that the court has followed successfully for the last six years. In addition, we recommend that Judge Nadeau resume scheduling routine matters no more than 15 minutes apart in order to efficiently process these matters,” the commissioners wrote in the letter to Nadeau last week.
It is unclear whether Nadeau can be disciplined by the judicial branch.
Mary Ann Lynch, spokeswoman for the judicial branch, declined to comment on accusations because of the pending case against Nadeau before the Supreme Judicial Court.
HISTORY OF REPRIMANDS, SUSPENSION
Nadeau already has been publicly reprimanded multiple times, including being suspended from his judicial duties for 30 days in 2007 by the same Supreme Judicial Court.
Nadeau was first elected York County probate judge in 1996 and was re-elected in 2000 and 2004. He was defeated in 2008 after disciplinary actions against him, but was elected again in 2012.
In 2007, the Supreme Judicial Court suspended Nadeau from his duties as a judge for lying about opponents in his campaign for re-election in 2004.
In 2006, he was publicly reprimanded by the Maine Board of Overseers of the Bar for violating the Maine Bar Rules in a divorce case in his private practice in which he had a sexual relationship with his client. He was found in violation of bar rules for faxing messages directly to the opposing party in the divorce case rather than the attorneys. Nadeau was married at the time and had children, according to court records.