After 20 years in the Judicial Branch, I resolved that I ought to leave while I still had a good batting average and retired on January 23 of this year. On January 10, I was honored to be the beneficiary of a wonderful retirement dinner put on by the Bath-Brunswick Bar Association and this essay is a slightly revised and extended version of my remarks that night.
I’ve had a lot of time over the past couple of years to reflect on what judges do and why. After that reflection, I am somewhat less convinced of the importance of the particulars of what we decide in any given case, but I am also far more convinced of the systemic importance of the fact that we make decisions, that they are generally respected, and even when not, are enforceable. Accordingly, my umbrella topic is the importance of the rule of law in our state.
Resources Matter
I begin my overview with resources, or lack of them. Maine’s justice system has been chronically underfunded at all levels. We have one of the hardest working but least well-funded judicial systems in the country by most statistical measures and almost the least well-paid judges.1 Certainly, our district attorneys’ offices and court-appointed counsel are no better funded and I suspect that Maine’s law enforcement agencies are also relatively poorly funded in comparison to other places. The other important actors within the Judicial Branch, the clerks, the marshals and the administrators, are all paid less than they could be elsewhere. Nonetheless, we all take pride in the fact that our state remains a place to live that usually fulfills the implied promise of the sign in Kittery: “Maine, The Way Life Should Be.”
Despite the underfunding of the third branch of government and its counterpart agencies, according to FBI *62 statistics,2 Maine has the lowest violent crime rate in the country and we compete with Vermont and Iowa most years for the lowest per capita murder rate.3 Why is this? I think it’s because all of the people I’ve already mentioned carry our justice system on their backs. All of us share the bedrock assumptions that our judges have integrity, that our police and prosecutors are honest, that our clerks will handle a massive workload, and that our marshals will keep us safe. We all share the ethic of hard work, done well. So, we continue to make do with what we have and, somehow, it works.
Our state government focuses a lot of its energy on economic development, as it should. But when I think about just what Maine offers that other places do not, it is two things–the quality of its people and the character of its place. It is still possible to go almost anywhere in Maine at almost any time of the day or night and feel personally safe. Many of us, perhaps even most of us, don’t lock our doors at night. Our government is generally competent and clean. So, we’ll probably continue to succeed in maintaining our states special qualities, despite the relative lack of funding. But what if we don’t? What if we lose these qualities?
I suggest that if we do so, that if the drug culture or street gangs or casual violence take over our unique place in a way that compromises our individual sense of well being, we will never get that feeling of security back. So, we can and do chronically underfund our justice system, but we do so at our peril, because if things go wrong, all of the economic development efforts in the world won’t be worth much to us, or those we want to attract here.
The Importance of Civility
We all have to remember that civility is a core value of this place. One of the things that make our state such a good place to practice law in is the civility usually shown to each other by the members of our bar. I know that there has been a long line of local judges who have made it a priority to nurture respect between and amongst the court and counsel in the mid-coast and elsewhere, and I and the other current class of judges and magistrates have sought to follow in their footsteps.
I sometimes think of myself as a collector of other peoples wisdom. I heard a particularly valued piece of advice at MSBA’s Bridging the Gap in 1982. Barry Zimmerman said to the assembled new lawyers, “This is Maine, don’t be a jerk!” These are only seven words, but they are seven words that go to the heart of practicing law in Maine.
However, wisdom is also found in less likely places. I found another quote that I cherish in a spy novel named Shibumi that was published back in 1979. The author observed:
In the long run, the “minor” virtues are the only ones that matter. Politeness is more reliable than the moist virtues of compassion, charity or sincerity; just as fair play is more important than the abstraction of justice. The major virtues tend to disintegrate under the pressures of convenient rationalization. But good form is good form and it stands immutable in the storm of circumstance.4
It is not only possible but also necessary for judges and lawyers to disagree without being disagreeable when in court. Whatever else may happen, at a minimum, we should all be polite with each other, especially when we are tempted not to be. We model behavior, good or bad, to clients and everyone else in the courtroom. But the virtues of politeness go beyond that. I can tell you that from having observed skillful lawyers in action that the most polite and respectful cross-examination techniques can sometimes wound the deepest, as the opposing party often does not quite realize that he or she has just been cut off at the knees.
Wise Application of Discretion
Moving on in our tour, let us consider the use of discretion and the value of actual justice, as opposed to compliance with the forms of justice. All of us in the justice system have been temporarily entrusted with discretion by society and judges in particular have great latitude in many, but not all, cases. The flexibility that thoughtful use of our discretion should give the system is critically important in striking the balance between effective law enforcement and individual liberties, a balance that is essential to a well functioning society.
There is always a tension in the judicial system between the goals of holding individuals accountable for their misdeeds and providing the breathing space that individual liberty needs to flourish. As to the first purpose, the great Justice Learned Hand wrote in 1947:
The protection of the individual from oppression and abuse … is indeed a major interest of society; but so is the effective prosecution of crime, an interest that at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”5
On the other hand, as Chief Judge Charles Breitel, of the New York Court of Appeals, observed in a law review article in 1960:
“If every policeman, every prosecutor, … and every court … performed its responsibility in strict accordance with rules of law, precisely and narrowly laid down, the criminal law would *63 be ordered but intolerable. Living would be a sterile compliance with soul-killing rules …. By comparison, a primitive tribal society would seem free.”6
One of my more memorable moments on the bench illustrates the point. The particular place or date is unimportant, as this could have happened on any day, with any judge or ADA, in any district court.
I was conducting initial criminal arrangements. An elderly woman came up to the microphone. I opened one of the large stack of files and read her the charge: “Having an unregistered motor vehicle for longer than 150 days, a class E misdemeanor.” I asked if she understood the charge and the rights that had been explained on the tape and she said that she did. I then asked the ADA for the state’s recommendation and was told a $150 fine, no risk of jail. Totally routine. So I asked the woman, “How do you want to plead?” and she said, ““Guilty, I guess.”
But her jaw was trembling, something that I could observe from my vantage point, but the ADA could not. So I diverted from the routine processing of a routine case. I asked her how old she was and she responded, “77, Your Honor.” I then asked if she had any previous criminal convictions and she said no and looked at me as though I was possibly crazy for suggesting such a thing.
I wondered aloud if the state would consider converting the criminal charge to a civil violation. The ADA responded, “Oh, we can’t do that, this was more than 150 days, this is a serious charge.” So I asked the woman, “What happened here?”
The floodgates opened. She started to cry, and credibly explained that her husband died six months earlier, that she never had anything to do with registering the car, and that she never knew that the registration was expired. I then dismissed the case as a de minimis offense. So far as I know, there is nothing in the Maine Rules of Criminal Procedure that explicitly allows a judge to make that determination, at that stage in a case, but then and now it seemed to me to be the right thing to do.
Again, I’m not being critical of anyone. I had a unique vantage point. I strongly suspect that had the officer known the whole story the ticket would not have been issued. I equally strongly suspect that had the ADA known all of the circumstances, no complaint would have been filed. We are all overworked. None of us can ask all the right questions in every case. Nevertheless, we have to try to keep the big picture in mind. The law gives us discretion for a reason. We all have to be alert for those cases where we ought to use that discretion to intervene between ordinary citizens trying to do their best and the routine but, nevertheless, relentless mechanisms of the law. Sometimes we have to be guided by the spirit of the law, and act as a “circuit breaker.”
I am not suggesting that this should be ordinary practice. As was wisely observed more than 250 years ago, “Mercy for the guilty is cruelty for the victim.”7 That is true in many cases, but not all. When the victim is a law-abiding person whose previous sense of personal security has been damaged or lost, or worse, justice for the victim must be weighed against mercy for the offender. But we should distinguish between those offenses that are malum in se, that have an evil motive or result, and those offenses that are malum prohibitum, that are a violation of a rule, revenue generating, or other less serious regulatory law. I believe that by exercising our discretion in this manner, we reserve the full coercive power of the law for the cases that demand it and in so doing, we enhance overall respect for the justice system.
Ordered Liberty
This brings me to my last point. All of us who work in the justice system, in whatever capacity, are working everyday to preserve what is a thin veneer of civilization. Rich people, poor people, ordinary people all come to court and all get their best shot at a fair decision. The case gets resolved; a judgment issues, life goes on. Whatever the shortcomings of our judicial system, it is far preferable to the predictable alternative, a Hobbesian world where life is nasty, brutal and short.
It has been a particular pleasure for me to be Judge Joseph Field’s officemate in West Bath. We have often talked about out lives, the law and our cases. Sometimes our role has been to support the other’s thinking; other times to gently, but firmly, tell the other that his approach to a case or problem was, well, let’s say, ill-considered. The most important thing we’ve regularly done for each other has been to pick up each other’s spirits. A year or so back we were talking over the problem case of the moment and Judge Field said something like “Oh, I wonder how much good it does. Sometimes I don’t know why we do this.” (I had likely said the same thing a day or two before).
I didn’t really think about my response. It just came out. I said, “I’ll tell you what you’re doing, you are pushing back the darkness.” In the last analysis, that is what we do. Every one of us who works in the justice system helps to maintain the necessary balance of “ordered liberty,” and to push back the forces of disorder and entropy. It is very hard work. It wears on one’s soul. From the micro view, during the daily grind, it can appear to be a never-ending task.
However, we have to take the long view. We are but links in a chain that spans generations. Martin Luther King, Jr., said, “Let us realize the arc of the moral universe is long, but it bends towards justice.”8 We are all only human and human justice can only be imperfect, but over time the truth usually emerges and our court system improves and, it all bends towards justice. Seen *64 from the macro view, there are few ways we can spend our working lives and energy that are so important.
A few days later, as I was winding up my cases, I was heading home from West Bath, listening to the radio.9 In short order there were two stories, one about rival ethnic and religious militias in the Central African Republic. The putative government could not meaningfully intervene and the UN was concerned about yet another round of genocide. In the second, about the Michoacán state of Mexico, the local government did not have the actual authority to overcome the de facto rule of the local drug gang, the “Knights Templar.” In the absence of meaningful government, local citizens there had banded together to take up arms. In each case, AK-47s were being used in the streets in lieu of the rule of law.
Then I stopped to get gas. The young lady in front of me could not open the gas flap on her car, new to her. The long and short of it is that I wound up kneeling on the ground to work the dashboard release, while another customer from the next pump over used his credit card to pry open the flap. He recommended some WD-40 and showed her where to apply it. She thanked us, we all filled up and went on our way. I would have expected nothing less from almost anyone in Maine, whether the problem was mine, or any of my neighbors’.
Consider all of this together. Maine, for all of its problems, is still a place where life is the way it should be. What I have done and what each of you, the lawyers, judges and other actors in the judicial system will continue to do is so very important. Together, we have been pushing back the darkness. All of us in Maine need each one of you to continue to carry the torch and keep on pushing back.
Footnotes:
a1 Judge Kennedy served as a magistrate and judge of the Maine District Court from 1978 to 2014. He was honored with the Judicial Branch’s Career Performance Award in December 2013. He has joined Eaton Peabody as Senior Counsel with a practice focused on mediation and arbitration, and will commence working on cases in June 2014.
1 National Center for State Courts, January 2013; “Survey of Judicial Salaries,” 2013.
2 Federal Bureau of Investigation; “Crime in the United States, 2011”; http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s./2011.
3 Death Penalty Information Center; http:// www.deathpenaltyinfo.org/murder-rates-nationally-and-state.
4 “Trevanian” (Whittaker, Rodney), Shibumi, Crown Publishers, New York, 1979.
5 In re Fried, 161 F.2d 453 (2nd. Cir., 1947)
6 Breitel; Controls in Criminal Law Enforcement; 27 U. Chicago L. Rev. 427 (1960).
7 Smith, Adam, A Theory of Moral Sentiments, Part II, The Objects of Merit and Demerit; or, Of the Objects of Reward and Punishment, A. Millar, London, 1759.
8 King, Rev. Dr. Martin Luther, “I Have A Dream,” Washington, August 28, 1963. This was a modern paraphrase of a longer version of a similar sentiment by Rev. Theodore Parker at a speech to the Massachusetts Anti-slavery Convention in 1858.
9 The World, Public Radio International, January 17, 2014.