MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 115 Docket: Cum-15-345 Argued: April 5, 2016 Decided: March 16, 2017 Reissued: June 8, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ. Majority: SAUFLEY, C.J., and, MEAD, JABAR, HJELM, and HUMPHREY, JJ. Dissent: ALEXANDER, J.
PETITION OF EDWIN R. JONAS III FOR REINSTATEMENT TO THE BAR OF THE STATE OF MAINE
SAUFLEY, C.J.
[¶1] In 2013, Edwin R. Jonas III, who had been admitted to the Maine
Bar in 1987, petitioned for reinstatement to the Bar from his administrative
suspension for failing to register in 1995. A single justice of the Maine
Supreme Judicial Court (Gorman, J.) ultimately denied Jonas’s petition for
reinstatement. Jonas now appeals to us, in our capacity as the Law Court,1
challenging the processes employed by the Grievance Commission, the Board
of Overseers of the Bar, and the single justice in reviewing his petition for
reinstatement. Jonas also challenges the single justice’s evidentiary rulings
during the de novo hearing on his petition, and the Board’s and the single
1 We treat the single justice’s decision on the petition for reinstatement as the judgment of a
trial court and review it as an appellate body. See 4 M.R.S. § 57 (2016); In re Williams, 2010 ME 121, ¶ 1, 8 A.3d 666; In re Application of Feingold, 296 A.2d 492, 496 (Me. 1972). 2
justice’s conclusion that he failed to meet his burden to show that he was
eligible for reinstatement.
[¶2] The record reflects that Jonas has engaged in more than two
decades of litigation with his ex-wife during which he was suspended from the
bars of three states, jailed for contempt, declared a vexatious litigant, and
admonished by a federal court for making frivolous arguments. Nonetheless,
he seeks reinstatement to the Maine Bar asserting that, notwithstanding those
judgments, he has the requisite character and fitness to practice law.
[¶3] In this appeal, Jonas challenges the process at every stage of the
proceedings, the evidentiary determinations of the single justice, and the
justice’s ultimate findings and conclusions. We conclude that there was no
error in process at any stage of the proceedings; that Jonas received more
than sufficient notice and opportunity to be heard; and that his claims of a
failure of due process are without merit. Nonetheless, because we have
concluded on this appeal that the evidentiary standard applicable to Jonas’s
final de novo hearing was the more expansive “reasonable person” standard,
rather than the Rules of Evidence, we remand for the single justice to consider
whether to admit the evidence offered by Jonas that she excluded pursuant to 3
the Maine Rules of Evidence and to determine the effect of any newly
admitted evidence on her decision.
I. BACKGROUND
A. Facts
[¶4] The single justice made detailed factual findings, which we do not
report at length here, given the remand for her further consideration.
Preliminarily, we note that this matter is complicated by the fact that,
following the completion of the original proceedings, the applicable Maine Bar
Rules were repealed and replaced in their entirety with rules that
substantially changed the procedures for reinstatement since Jonas’s petition
was filed.2 See generally M. Bar R. (Tower 2015) (effective July 1, 2015).
Except as otherwise indicated, all references to the Maine Bar Rules are to the
rules that were in effect at the time of Jonas’s petition. See generally M. Bar R.
(Tower 2014).
[¶5] Jonas was admitted to the Maine Bar in 1987. Because of his
failure to complete an annual registration, see M. Bar R. 6(b)(1), he was
administratively suspended from the Maine Bar in 1995.
2 The Maine Bar Rules govern proceedings for attorney discipline and reinstatement, which are
initiated with the Board of Overseers of the Bar. See M. Bar R. (Tower 2014). Proceedings for the admission of new attorneys to the bar are initiated with the Board of Bar Examiners and governed by the Maine Bar Admission Rules, which have not materially changed since Jonas filed his petition. 4
[¶6] In 1990, Jonas and his wife, Linda Jonas, were divorced in New
Jersey. Since then, Jonas and Linda have been involved in highly contentious
post-divorce litigation as Jonas repeatedly defied the court’s orders regarding
the payment of his support obligations and Linda’s attempts to enforce them.
During the course of that litigation, and in other litigation related to his bar
status in other jurisdictions, Jonas has been sanctioned, suspended, and held
in contempt. On multiple occasions, Jonas failed to attend hearings
established to allow him to demonstrate compliance with court orders. Based
on Jonas’s “obstinate refusal to comply or properly respond to court orders,”
the New Jersey Appellate Division dismissed an appeal from Jonas, stating,
“[Jonas’s] defiance is especially egregious in light of the fact that he was an
attorney-at-law of this State and was suspended in this state and others for his
willful evasion of court orders.”
[¶7] As a result of his actions, the New Jersey State Bar suspended
Jonas for a period of six months beginning on September 2, 2005, for conduct
intended to disrupt a tribunal and conduct that was prejudicial to the
administration of justice. Jonas has not been reinstated in New Jersey.
[¶8] In 2006, Jonas was reciprocally suspended from the bar of
Pennsylvania for a period of six months based on the discipline imposed in 5
New Jersey. Jonas was reinstated to inactive status in Pennsylvania in 2014.
In 2007, Jonas was reciprocally suspended from the Florida bar for a period of
one year for committing conduct intended to disrupt a tribunal.
[¶9] At some point prior to 2009, Jonas moved to Montana, where he
began a course of what the Montana court described as “harassing,
duplicative, vexatious, and frivolous” litigation against his ex-wife when she
sought to domesticate the New Jersey judgments. Eventually, the court
granted Linda’s motion to declare Jonas a vexatious litigant and found that in
attempting to defy the New Jersey judgments, Jonas had willfully abused his
litigation skills, had filed appeals in matters in which he had “no objective
good faith expectation of prevailing,” and had caused “needless expense and
burden” to Linda.
[¶10] Jonas then filed suit in the United States District Court for the
District of Montana against Linda, her Montana attorney, the judge who had
presided over Linda’s action to domesticate the New Jersey judgments, and
others. The federal court eventually ordered Jonas to show cause why he
should not be sanctioned pursuant to Rule 11 of the Federal Rules of Civil
Procedure for making frivolous arguments. After Jonas failed to show good
cause, the court issued a sanction in the form of an admonishment dated 6
August 7, 2014. A copy of its admonishment was forwarded to the state bars
of Maine, New Jersey, and Pennsylvania. By the time the admonishment was
forwarded to the Maine Bar, Jonas’s reinstatement proceedings were already
pending before the Maine Board of Overseers of the Bar.
B. Procedural History of Jonas’s Petition for Reinstatement in Maine
[¶11] On September 20, 2013, Jonas filed a petition for reinstatement to
the Maine Bar with the Supreme Judicial Court and the Board of Overseers of
the Bar. The matter was assigned to a single justice of the Supreme Judicial
Court. Bar Counsel opposed the petition. On March 4, 2014, the Grievance
Commission held a hearing concerning the petition for reinstatement. The
Commission recommended to the Board that Jonas be conditionally reinstated
to the bar. Both Jonas and Bar Counsel objected to some aspect of the
Grievance Commission’s recommendations. In response, the Board created a
“Special Panel” of the Board to review the evidence adduced at the
Commission’s hearing, seek additional written arguments from the parties,
and make a recommendation to the Board as a whole as to whether the Board
should recommend Jonas’s reinstatement. 7
[¶12] Once the Special Panel completed its work, the full Board met.3
The Board found that Jonas did not meet his burden to establish that he
should be reinstated. The Board concluded that the Grievance Commission
had failed to consider the necessary factors in determining whether to
recommend reinstatement. On September 24, 2014, the Board recommended
to the single justice that Jonas’s petition for reinstatement be denied.
[¶13] After briefing and argument on several procedural issues, the
single justice scheduled a de novo hearing on Jonas’s petition in which the
court provided the parties an opportunity to present all relevant evidence and
make a record that was to be “created anew.”
[¶14] Prior to the hearing, Jonas filed a motion in limine seeking to
exclude evidence of any issues regarding Jonas’s conduct that were not raised
in the hearing before the Grievance Commission. The single justice denied the
motion, noting that Jonas had the burden to prove that he was eligible for
reinstatement by clear and convincing evidence, and concluding that “[d]ue
process does not require that the Board notify Mr. Jonas of those aspects of his
burden that it anticipates challenging at the hearing, nor does due process
limit the Board from challenging any aspect of Mr. Jonas’s presentation.”
3 The record does not contain a report or other written record of the recommendation of the
Special Panel to the full Board. 8
[¶15] A two-day bench trial was held on April 27 and 28, 2015. At the
trial, Jonas objected to the admission of prior court orders and decisions in
cases that involved him. The single justice overruled Jonas’s objections,
admitted the few orders and decisions ultimately offered by Jonas, and
admitted the many orders and decisions offered by the Board. The single
justice applied the Maine Rules of Evidence to exclude an affidavit that Jonas
proffered and to sustain certain hearsay objections raised by Bar Counsel.
[¶16] On June 22, 2015, the single justice issued a judgment finding that
Jonas had failed to establish by clear and convincing evidence that he was
eligible for reinstatement. See M. Bar. R. 7.3(j)(5). In reaching this conclusion,
the single justice “considered the testimony of witnesses presented during the
de novo hearing in April, the documents admitted in evidence at that hearing,
the findings and conclusions made by various courts in prior proceedings in
which Jonas was a party, and the parties’ arguments.” The judgment also
indicated that “some of the cases [relied upon] were specifically provided by
the parties at hearing, and others were found in electronic databases that are
publicly available.”
[¶17] This appeal followed. See 4 M.R.S. § 57 (2016); In re Application
of Feingold, 296 A.2d 492, 496 (Me. 1972). We issued an opinion on March 16, 9
2017, in which we affirmed the single justice’s decision. Jonas moved for
reconsideration seeking, as one alternative, the opportunity to offer specified
additional evidence that the single justice precluded him from presenting
based on the application of the Maine Rules of Evidence. We now withdraw
our prior opinion and replace it with this opinion.
II. DISCUSSION
[¶18] We begin by reviewing the procedures and standards that
applied to Jonas’s petition for reinstatement. In doing so, we interpret the
meaning of the Maine Bar Rules de novo, looking both to the plain language
and to the purpose of the rules. See Bailey v. Bd. of Bar Exam’rs, 2014 ME 58,
¶¶ 16, 19-21, 90 A.3d 1137; Bd. of Overseers of the Bar v. Warren, 2011 ME
124, ¶ 25, 34 A.3d 1103. As we cautioned at the outset, many of the rules
applicable here have been superseded by the Bar Rules that went into effect in
2015.
A. Reinstatement Procedures
[¶19] Pursuant to the bar rules that applied to Jonas’s petition, “[a]n
attorney who ha[d] been suspended for non-disciplinary reasons” could
“petition to the Court for reinstatement.” M. Bar. R. 7.3(j)(4). If Bar Counsel
opposed the petition, the matter would “be immediately referred to the 10
Grievance Commission” for a hearing. M. Bar R. 7.3(j)(5). During the hearing,
it was the petitioner’s burden to
present[] clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State[,] . . . [and] that it [wa]s likely that reinstatement w[ould] not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioner’s meeting that burden include[d] evidence that:
(A) The petitioner ha[d] fully complied with the terms of all prior disciplinary orders;
(B) The petitioner ha[d] neither engaged not attempted to engage in the unauthorized practice of law;
(C) The petitioner recognize[d] the wrongfulness and seriousness of the misconduct;
(D) The petitioner ha[d] not engaged in any other professional misconduct since resignation, suspension or disbarment;
(E) The petitioner ha[d] the requisite honesty and integrity to practice law; and
(F) The petitioner ha[d] met the continuing legal education requirements . . . .
M. Bar R. 7.3(j)(5).
[¶20] After a hearing, the Grievance Commission would “transmit to the
Board and to the petitioner its findings and recommendations by written
report, and provide the Board with any record it ha[d] made.” M. Bar 11
R. 7.3(j)(6). “After consideration of a party’s timely objection to the
[Grievance Commission’s] report the Board [would] file its recommendations
and findings with the Court, together with any record that ha[d] been made.”
Id. After the Board filed its recommendation and findings, the Supreme
Judicial Court would, “with or without hearing, grant or deny the petition for
reinstatement by written order.” Id.
B. Standard of Evidentiary Admissibility
[¶21] Although the Bar Rules provided standards of evidentiary
admissibility that applied to disciplinary proceedings, see M. Bar
R. 7.1(e)(2)(C), 7.2(b)(2), they did not expressly address the standards that
would apply in reinstatement proceedings, see M. Bar R. 7.3(j).4 Because
attorneys may petition for reinstatement from either disciplinary or
nondisciplinary suspensions, the same standards of evidentiary admissibility
that applied to disciplinary proceedings did not necessarily apply to all
petitions for reinstatement. Accordingly, we must first determine whether the
Rules of Evidence or the “reasonable person” standard, which applied in
4 Similarly, the new Rules do not explicitly provide an evidentiary standard for reinstatement
proceedings before the Commission. See M. Bar R. 29(g) (Tower 2015); see also id. 14(a)(1)-(2) (providing that the Rules of Evidence do not apply to disciplinary hearings before a Grievance Commission Panel). We note, without deciding, that the new Rules appear to indicate that when the Court holds a hearing on the Commission’s findings and recommendations in reinstatement proceedings, the Rules of Evidence apply. See id. 14(b)(1); 29(h). 12
disciplinary proceedings before a Grievance Panel, M. Bar R. 7.1(e)(2)(C), and
in attorney admission proceedings, M. Bar Admission R. 9(d)(5)(C),
9(d)(6)(C), applied to the trial held by the single justice. See also 5 M.R.S.
§ 9057(2) (2016).
[¶22] We begin by reviewing the standard that applies to attorney
admission proceedings. If the Board of Bar Examiners holds a hearing on an
application for admission to the bar, “[e]vidence shall be admitted . . . if it is
the kind of evidence upon which reasonable persons are accustomed to rely in
the conduct of serious affairs.” M. Bar Admission R. 9(d)(5)(C). In such
proceedings, the new applicant has the burden to prove that the applicant is
“a person of good character,” is “fit to practice law,” and “possesses sufficient
learning in the law to practice as an attorney in this State.” M. Bar Admission
R. 8-10.
[¶23] If an applicant is denied a certification of good character and
fitness to practice law by the Board, the applicant may petition the Court for
admission pursuant to Rule 9(d)(6)(A). A single justice of this Court will then
conduct a de novo hearing during which the same reasonable person standard
of evidentiary admissibility applies. M. Bar Admission R. 9(d)(6)(C). 13
[¶24] Under the rules applicable to these proceedings, when a
suspended attorney petitioned for reinstatement to the bar, the process and
the petitioner’s burden were much the same as for an initial application,
although the applicable evidentiary standards were not explicitly addressed in
the rules.5 Again, the petitioner was the moving party, not the Board of
Overseers of the Bar. Because the procedural posture, allocation of burdens,
and ultimate consequences of reinstatement proceedings mirrored bar
admission proceedings, we conclude that the reasonable person standard of
evidentiary admissibility applied to reinstatement proceedings before the
Commission and the Board. See M. Bar R. 7.3(j)(5) (providing that a petitioner
seeking reinstatement had the burden to show “the moral qualifications,
competency, and learning in law required for admission to practice law in this
State” (emphasis added)).
[¶25] In a single justice hearing on a reinstatement petition in which
the court, as anticipated by the Rule, did not provide the petitioner with the
opportunity for a full de novo factual presentation, the single justice’s
5 As we noted, the Bar Rules provided standards of evidentiary admissibility only for
disciplinary proceedings. In disciplinary proceedings, the Bar Rules provided that hearings before the Commission were subject to the reasonable person standard of admissibility, whereas hearings before a single justice were subject to the Rules of Evidence, “[t]o the extent appropriate.” See M. Bar R. 7.1(e)(2)(C), 7.2(b)(2).
determination would be made based on a review of the record as it was
“developed before the Commission and the Board.”6 See In re Williams, 2010
ME 121, ¶ 8, 8 A.3d 666. Thus, the single justice’s determination could have
been based entirely on the record provided by the Board, and that record
would have been created, as we have just held, utilizing the reasonable person
admissibility standard rather than the Rules of Evidence.
[¶26] Because here the single justice took the additional step of
providing Jonas with a complete de novo factual hearing instead of engaging
in a “de novo” review of the record, we must determine what standard of
evidentiary admissibility applied during Jonas’s de novo reinstatement
hearing. We conclude that the fact that the single justice provided Jonas a
fully de novo reinstatement hearing does not alter the kind of evidence upon
which the reinstatement determination may be made. Thus, the admission of
evidence in that proceeding was governed by the same reasonable person
standard that applied before the Commission and the Board, and that applies
6 Although we have previously held to the contrary, see, e.g., In re Application of Spurling, 595
A.2d 1062, 1065 (Me. 1991), the cases in which we did so involved bar admission rules that have been superseded. 15
to administrative proceedings and to attorney admission proceedings before a
single justice. The Rules of Evidence did not apply.7
C. Review of Jonas’s Arguments
[¶27] Having clarified the nature of the reinstatement proceeding and
the standard for the admissibility of evidence, we turn to Jonas’s arguments
on appeal. Among his many arguments, Jonas challenges (1) the processes
employed by the Commission, the Board, and the single justice in reviewing
his petition for reinstatement; (2) evidentiary rulings made during the de
novo hearing of his petition; and (3) the Board’s and single justice’s
conclusion that he failed to meet his burden to show that he was eligible for
reinstatement to the Maine Bar. We discuss each argument in turn.
1. Procedural Issues
a. Special Panel
[¶28] Jonas first challenges the Board’s establishment of a “Special
Panel” of the Board to review the Commission’s recommendation to reinstate
7 The new Bar Rules explicitly subsume reinstatement from an administrative suspension longer than five years within the same process as is used for reinstatement from a disciplinary suspension longer than six months. See M. Bar R. 4(i), 29 (Tower 2015). The new rules also provide different criteria for reinstatement that have a greater disciplinary focus and are less similar to the criteria applicable to attorney admissions. See id. 29(e). For example, to be reinstated, a petitioner no longer has the burden to show the “moral qualifications, competency, and learning in law required for admission.” Compare M. Bar R. 7.3(j)(5) (Tower 2014) with M. Bar R. 29(e) (Tower 2015). As noted, we do not opine on the standard of evidentiary admissibility that applies pursuant to the new Bar Rules. 16
Jonas to the Maine Bar as a violation of the Bar Rules and his due process
rights.
[¶29] After the Board receives the recommendations and findings of
the Commission on a petition for reinstatement, “the Board . . . retains the
ultimate responsibility for evaluating such recommendations and findings and
making its own findings and recommendations to the Court.” Me. Bd. of
Overseers of the Bar Reg. No. 50, 1 Maine Manual on Professional
Responsibility R-30 (2004). If the petitioner or Bar Counsel objects, “the Board
will . . . decide . . . what, if any, procedure to establish for hearing the
objections to the findings and recommendations of the Commission or Panel.”
Id. at R-30 to R-31. Thus, although the regulation does not explicitly mention
the creation of a “Special Panel,” it requires the Board to make independent
recommendations and findings and gives the Board broad discretion to adopt
an appropriate procedure to consider objections to the Commission’s report.
[¶30] Turning to the purpose of the rules, we have previously noted
that, although the Court itself retains ultimate authority to regulate attorneys
and the practice of law in Maine, it has delegated some of that authority to the
Board of Overseers “to develop a record and issue recommendations in
reinstatement proceedings.” In re Williams, 2010 ME 121, ¶ 5, 8 A.3d 666. 17
The creation of a Special Panel of the Board to review the Grievance
Commission’s findings and seek additional input from the parties is consistent
with this purpose.
[¶31] Based on the language of the applicable Bar Rules and Board
Regulations and the purpose and role of the Board, it was neither
inappropriate nor a violation of Jonas’s due process rights for the Board to
appoint a “Special Panel” of the Board to review the Grievance Commission’s
recommendation and make its own recommendation to the full Board.8
b. Reinstatement Factors
[¶32] Jonas next argues that because he was seeking reinstatement
after an administrative suspension, M. Bar R. 7.3(j)(4), the factors listed in
M. Bar R. 7.3(j)(5) did not apply to his petition. That argument is simply
incorrect.
[¶33] The procedure set out in 7.3(j)(5) applied to all types of petitions
for reinstatement mentioned in section 7.3(j). See Bailey, 2014 ME 58,
¶¶ 16-17, 90 A.3d 1137; In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666. This
does not mean that each factor would have similar weight in every case;
8 Moreover, Jonas’s objections to the Board’s processes have been rendered moot by the single
justice’s decision to conduct a hearing during which Jonas and the Board were given the opportunity to present their evidence anew. 18
rather, the factors would be considered to the extent that they applied to the
petitioner. The Board and single justice appropriately applied the factors to
determine whether Jonas had met his burden to demonstrate eligibility for
reinstatement.
c. Due Process
[¶34] In addition to his argument that the procedures violated the Bar
rules, Jonas argues that the procedures collectively violated his due process
rights. We review alleged procedural due process violations de novo. See
State v. Jones, 2012 ME 126, ¶ 35, 55 A.3d 432.
[¶35] We have previously held that due process in the context of bar
proceedings “consists of notice of the proceedings and an opportunity to be
heard, including the right to confront and cross-examine witnesses.” See In re
Williams, 2010 ME 121, ¶ 5, 8 A.3d 666.
[¶36] Jonas had both notice and the opportunity to be heard at every
stage of the proceedings leading up to the single justice’s de novo trial. First,
he had notice and the opportunity to present his petition to the Grievance
Commission. After the Grievance Commission—and then the Board—issued
recommendations, the single justice invited the parties to address the process
employed by the Grievance Commission and the Board, where Jonas had the 19
opportunity to brief and argue the procedural issues. Jonas was then
provided a full de novo hearing before the single justice.9 At each stage of the
proceedings, Jonas was represented by capable counsel. He has had a full
opportunity to obtain appellate review of the decision and process, and he will
now have an opportunity to address excluded evidence on remand. Thus,
Jonas was not deprived of due process during these proceedings. See In re
Williams, 2010 ME 121, ¶¶ 5-9, 8 A.3d 666.
2. Evidentiary Issues
[¶37] Jonas next argues that the single justice erroneously took judicial
notice of the facts found in judgments from other jurisdictions in which
Jonas’s conduct was assessed. See M.R. Evid. 201. We review evidentiary
rulings for clear error or abuse of discretion. State v. Dolloff, 2012 ME 130,
¶ 24, 58 A.3d 1032.
[¶38] As we have concluded, the Rules of Evidence did not apply in
these proceedings. Bar reinstatement proceedings required the single justice
to determine, inter alia, that the petitioner was of good moral character, and
that reinstatement would not be detrimental to the integrity and standing of
the Bar. See M. Bar R. 7.3(j)(5). In such a proceeding, the single justice was
9 Neither party contests the propriety of the single justice holding a de novo hearing in this
matter. 20
bound to consider the petitioner’s conduct as an attorney and litigant in
determining whether the petitioner was eligible for reinstatement. Judgments
and orders relating to prior litigation involving that attorney are uniquely
relevant to that determination. Thus, pursuant to the reasonable person
standard of admissibility, the single justice did not err or abuse her discretion
in considering the extensive history of judgments and orders against Jonas. Cf.
M. Bar R. 7.3(h)(4) (“A final adjudication in another jurisdiction that an
attorney had been guilty of misconduct may be treated as establishing the
misconduct for purposes of a disciplinary proceeding in this State.”).
Furthermore, as a litigant in family matters and as an attorney facing potential
discipline, Jonas had the motivation and formal opportunity to offer evidence
and argument. Because of the process afforded in the prior proceedings and
the nature of the proceedings before the single justice, the facts found in the
judgments that were relied on by the single justice constituted the kind of
information upon which a reasonable person would rely. The single justice
did not err or abuse her discretion in considering the judgments involving
Jonas, including the factual findings contained in those judgments.10
10 Because the parties spent considerable energy addressing the use of judicial notice in this
matter, we briefly address the issue, despite its inapplicability to the proceedings before the single justice. During a trial in which the Rules of Evidence apply, courts may “judicially notice,” and thereby conclusively establish, facts that are “not subject to reasonable dispute because [they] . . . 21
D. Remand
[¶39] Because the matter was tried with the understanding that the
Rules of Evidence applied to the proceedings, the single justice may have
excluded evidence that would otherwise have been admissible had the justice
had the benefit of our opinion applying the reasonable person standard of
evidence. We must therefore remand the matter for the single justice to make
findings based on both the existing evidentiary record and any new evidence
presented by either party on remand. On remand, the court must consider
[c]an be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” M.R. Evid. 201(b), (f). When a court takes judicial notice of a final judgment, from a Maine court or another court of competent jurisdiction, however, that “notice” is limited to the existence of the judgment, and the action of the court. “[A] court may take notice of another court’s order only for the limited purpose of recognizing the ‘judicial act’ that the order represents or the subject matter of the litigation.” United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994); see, e.g., Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70-71 (2d Cir. 1998); United States v. Garland, 991 F.2d 328, 332 (6th Cir. 1993); Colonial Leasing Co. v. Logistics Control Group Int’l, 762 F.2d 454, 459 (5th Cir. 1985); see also Field & Murray, Maine Evidence § 201.3 at 57 (6th ed. 2007) (“A court will take judicial notice [pursuant to M.R. Evid. 201(b)(2)] of pleadings, dockets, and other records of that court in the same or in other lawsuits.”).
Contrary to the Board’s argument here, the factual findings contained within a judgment are not appropriate subjects for judicial notice. As the Eleventh Circuit explained, “If it were permissible for a court to take judicial notice of a fact merely because it has been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.” Jones, 29 F.3d at 1553. The collateral estoppel doctrine, also known as issue preclusion, “prevents a party from relitigating factual issues already decided if the identical issue necessarily was determined by a prior final judgment, and the party estopped had a fair opportunity and incentive to litigate the issue in the prior proceeding.” Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 16, 8 A.3d 677 (quotation marks omitted). In the matter before us, however, the Board did not assert the applicability of collateral estoppel. See Conary v. Perkins, 464 A.2d 972, 975-76 (Me. 1983); Reed v. Tracy, 435 A.2d 745, 746 (Me. 1981).
Because the court, here, could rely on findings in other jurisdictions’ judgments pursuant to the reasonable person standard of evidentiary admissibility, we need not determine whether collateral estoppel would have applied in this case had the Board argued its applicability. 22
only (1) the evidence that was explicitly offered and excluded based on the
application of the Rules of Evidence and that was not otherwise admitted, and
(2) to the extent allowed by the single justice, any evidence of reinstatement
or disciplinary actions, further litigation, or other evidence deemed relevant
by the single justice that has occurred after the close of evidence in the
original trial.
[¶40] The single justice must then determine on the entire record
whether Jonas has satisfied his burden to demonstrate, by clear and
convincing evidence, that he possessed the moral qualifications, competency,
and learning in law required for admission to practice law in this State, as well
as to demonstrate, by clear and convincing evidence, that it was likely that
reinstatement would not be detrimental to the integrity and standing of the
Bar, the administration of justice, or the public interest. M. Bar R. 7.3(j)(5).
The entry is:
Judgment vacated. Remanded for further proceedings consistent with this opinion.
ALEXANDER, J., dissenting.
[¶41] I respectfully dissent from the Court’s decision to reconsider and
revise its well-considered decision of March 16, 2017, 2017 ME 48. 23
[¶42] It should be apparent, without any doubt, that the minor items of
character, reputation and credibility evidence Jonas claims were excluded by
the single justice’s application of the Maine Rules of Evidence should not and
cannot make any difference in the previously affirmed result. Such evidence
from persons who, it would appear, are unlikely to be aware of the full scope
of Jonas’s past practices is not going to make a difference given Jonas’s record
of two decades of abusive litigation practices, disregard of his ethical
obligations, and disrespect for court orders that formed the basis for the
single justice’s decision that we affirmed.
[¶43] A properly preserved error in ruling on evidence is harmless “if it
is highly probable that the error did not affect the [single justice’s] judgment.”
State v. Guyette, 2012 ME 9, ¶ 19, 36 A.3d 916 (quotation marks omitted);
Williams v. United States, 503 U.S. 193, 203 (1992). It is more than highly
probable that any error in exclusion of evidence by the single justice did not
affect the judgment here.
[¶44] No prejudicial error having been demonstrated, I would
summarily deny the motion for reconsideration.
James M. Bowie, Esq. (orally), Thompson & Bowie, LLP, Portland, for appellant Edwin R. Jonas III
Aria Eee, Esq. (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
Maine Supreme Judicial Court docket number Bar-13-16 FOR CLERK REFERENCE ONLY