AUGUSTA — Gov. Paul LePage is accusing a member of the state’s highest court of reneging on an agreement to retire after he reached 20 years of service so LePage could nominate a more conservative judge.
The governor released a Feb. 13 letter to Associate Justice Joseph M. Jabar and all other members of the Maine Supreme Judicial Court, describing an agreement with Jabar that LePage said was made in the presence of his former chief counsel, Avery Day.
“As you know, I did not intend to reappoint you as justice of the Maine Supreme Judicial Court,” LePage wrote in the letter released Tuesday. “My desire was to find a more conservative justice to balance out the court.”
According to the letter, Jabar asked LePage to allow him to stay on the bench.
“At the time you told me you had only one year left to reach 20 years of service, which would have provided you with a lucrative, taxpayer-funded pension,” the letter said. “You asked that I allow you to continue until you reached the 20-year mark, at which time you would step aside so I could nominate another justice.”
Julia Finn, a spokeswoman for the courts, said Jabar and the other justices had no comment on LePage’s missive.
LePage wrote that he told Jabar he would support his return to a lower Superior Court position or an appointment as an active retired justice. The governor also wrote that he told Jabar that if another justice resigned, “our deal was off: you could continue to serve, and I would fill the vacant seat with a more conservative justice.”
LePage also notes in the letter that he was told that Jabar would “probably break the deal and continue to serve after 20 years.”
“The fact that you reneged on our arrangement demonstrates to me a lack of character and an example of dishonesty that is not worthy of a member of the bar, let alone a sitting justice,” LePage wrote.
Day, the legal counsel who purportedly witnessed the agreement but left LePage’s office in 2016 to return to private practice, did not immediately respond to a request for comment.
LEPAGE LACKS POWER TO REMOVE JUSTICE
Jabar, a Waterville resident, served in the Legislature as a Democrat from 1993 to 1996. He was appointed to the Superior Court by independent Gov. Angus King in 2001 and elevated to the Supreme Judicial Court in 2009 by Democratic Gov. John Baldacci. Jabar was reappointed by LePage in December 2016, when his 7-year term expired and he was close to achieving 20 years of legislative and judicial service.
LePage does not have the power to remove Jabar from the bench, and unless he chooses to step down sooner, Jabar will serve until his current term expires in 2023.
Supreme Judicial Court justices can serve an unlimited number of terms if they are reappointed and confirmed by the state Senate. Jabar earns a salary of $129,855 a year and has a combined benefits package, including health insurance and retirement, of just under $160,000 a year, according to online state financial records at Maine Open Checkbook.
LePage did not say why he believed Jabar was not conservative enough, and the justice’s track record on some recent high-profile cases did not seem to indicate a clear idealogical bent.
In 2013, he was among three justices who issued a dissenting opinion in a 4-3 decision that upheld the state’s sex offender registry law. Specifically, the case determined that individuals convicted of sex crimes could be added to the registry retroactively, even if their convictions pre-dated the law that created the registry.
Jabar and justices Warren M. Silver and Donald Alexander argued that publication of the information amounts to continuing punishment through shaming after offenders have served their sentences.
Jabar sided with the majority in a 2014 case that upheld a decision prohibiting defense attorney F. Lee Bailey from practicing law in Maine.
The court ruled 4-2 that Bailey, who helped acquit celebrity defendants O.J. Simpson and Dr. Sam Sheppard, had “failed to demonstrate that he is sufficiently rehabilitated by proving that it is highly probable that he recognizes the wrongfulness and seriousness of most of the misconduct he committed.” Florida’s high court had ruled that Bailey mishandled stock forfeited by a drug-smuggling client.
Jabar was among dissenting justices in a 2015 case that upheld the state’s right to have a child in its custody vaccinated even if the child’s birth parents objected.
UNCLEAR HOW CHANGE WOULD ADD BALANCE
Jabar noted that Maine law allows parents to forgo vaccinating their children for personal and religious reasons. He said the decision to disregard a parent’s views on vaccinations effectively terminates their parental rights.
Julie Rabinowitz, LePage’s press secretary, said Tuesday that the governor reads all of the court’s decisions and was simply seeking to make the panel more balanced, but she did not point to any specific opinion or ruling by Jabar.
“He wants to move the court closer to the center in its deliberations by having a conservative voice,” Rabinowitz wrote in an email. “Justice Jabar’s seat was the next available for appointment at the time the governor had decided that he wanted to appoint a more conservative jurist.”
Senate President Mike Thibodeau, R-Winterport, declined to comment. “Without hearing Justice Jabar’s interpretation of the conversation, I don’t think it’s appropriate for me to comment,” Thibodeau said.
Speaker of the House Sara Gideon, D-Freeport, called LePage’s release of his letter “deeply troubling” and she stood behind Jabar, noting his many years of service to the state.
“An independent judiciary is fundamental for the rule of law and the integrity of our system,” Gideon said in a prepared statement. “The judiciary must remain independent and immune from exactly this type of pressure. The people of Maine need to have confidence that justice is administered impartially, not at the behest of the Executive Branch. Justice Jabar has served Maine honorably and should continue to do so.”
Maine Supreme Court justice Joseph Jabar