AUGUSTA — While Maeghan Maloney, district attorney for Kennebec and Somerset counties, is facing disciplinary action for reported misconduct, it is unclear whether Superior Court Justice Donald Marden will do the same.

That’s because complaints against Maine justices are handled confidentially, unless disciplinary action is taken by the Maine Supreme Judicial Court. The state Board of Overseers of the Bar, however, conducts its proceedings publicly.

Asked Wednesday if he was aware of any disciplinary action against him in connection with the Bard case, Marden wouldn’t say.

“I really don’t care to comment on this matter at this time,” he responded.

Maloney also declined to comment when asked whether she knew if Marden was facing disciplinary action.

The alleged misconduct is related to a case involving Eric Bard, who was was sentenced to 50 years in prison in 2015 for allegedly repeatedly sexually assaulting a 4-year-old girl he was babysitting and recording it on his cellphone. Last year, the Maine Law Court, tossed out Bard’s conviction and deemed he deserves a new trial because his due process rights were violated when the judge and Maloney discussed the case in a June 23, 2014, meeting without his attorney present.

Maloney said she was called to Marden’s chambers and she responded to questions, which raised questions about Marden’s role. Maloney is scheduled to go before the grievance commission of the Maine Board of Overseers of the Bar on May 20 for a hearing that could result in disciplinary action.

Maeghan Maloney, district attorney of Kennebec and Somerset counties, takes part in an interview Oct. 11, 2018, in her office in Augusta. Kennebec Journal file photo by Joe Phelan

The Maine Judicial Responsibility and Disability Committee, whose duties nearly parallel those of the Board of Overseers of the Bar, would be the body to handle proceedings if a complaint was lodged against Marden for his conversation with Maloney.

Rule 6 of the committee states that “all proceedings before the Committee shall be confidential and no information may be published by the Committee” and “all persons concerned with any matter before the Committee shall be requested to respect the confidentiality of Committee proceedings.”

The committee’s process begins with a complaint and an initial assessment to see if the judge violated to Maine Code of Judicial Conduct. If the complaint holds up, there is an investigation into the complaint, which could involve hearings. The committee can dismiss the complaint at any time or, at the end of hearings, report their findings to the Maine Supreme Judicial Court.

“Everything is confidential unless the committee decides to charge the judge in Supreme Court,” said Cabanne Howard, the judicial committee’s executive secretary.

He could not confirm or deny whether any action was being taken against Marden.

The committee cannot discipline or remove judges formally; the Supreme Judicial Court would decide if discipline should be imposed. According to the committee’s website, the court has issued public reprimands, ordered judges to forfeit money and suspended some. The Supreme Judicial Court does not have the power to remove a judge; that power is reserved for the Legislature.

Howard said the committee receives about 40 complaints a year. The committee has issued three decisions since 1997 and nine decisions before 1997. In 2017, the year of the committee’s most recent published annual report, the committee received 47 new complaints, dismissed 54 complaints, and referred two to the court.

Tina Panayides, the board clerk at the Maine Board of Overseers of the Bar, said her organization is not privy to any pending actions against justices.

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