Posted: 4/21/2016 8:49:41 AM EDT
Justice may be pressured to recuse himself in Maine gun-rights case
The lawyer for a Rockland man suing to keep a gun in his apartment is skeptical Superior Court Justice William Stokes can be impartial because he used to be in a gun-control group.
An attorney representing a Rockland man at the center of a politically charged gun-rights case hinted Wednesday that he may ask the presiding judge to recuse himself.
Justice William Stokes heard arguments Tuesday in Knox County Superior Court about whether the case of Harvey Lembo, who is suing his landlord for not allowing him to have a gun in his apartment, should continue or be dismissed.
Stokes, a former criminal prosecutor with the Maine Attorney General’s Office and a former mayor of Augusta, disclosed during the hearing that he has in the past been a member of the gun control group Mayors Against Illegal Guns, which is affiliated with former New York City Mayor Michael Bloomberg’s Everytown For Gun Safety. Although Stokes said he does not believe his past affiliation would have a bearing on any ruling in Lembo’s case, he told the attorneys that if they wanted him to recuse himself, they have until next Tuesday to file a motion.
Patrick Strawbridge, one of Lembo’s attorneys, said Wednesday that he plans to file a motion related to Stokes’ disclosure but he would not comment further.
“We don’t want to get ahead of any arguments,” he said.
It appears likely, though, that Lembo’s legal team, which also includes Washington, D.C., attorneys David Thompson and Howard Nielson Jr., who have represented the powerful National Rifle Association, will question Stokes’ ability to be impartial. If the attorneys had no issue with Stokes, there would be no need to file a motion.
Stokes did not return a call for comment Wednesday. Judges rarely, if ever, comment on cases. But Mary Ann Lynch, a spokeswoman for the Maine Judicial Branch, said disclosures like the one by Stokes are not uncommon.
“Maine is a small state, so I think the judges in Maine are sensitive to both conflicts and perceptions of conflict,” Lynch said.
Superior Court Justice Nancy Mills, for example, disclosed in a murder case last year that Maine Attorney General Janet Mills, whose office prosecutes murder cases, is her sister-in-law, but did not ultimately recuse herself.
MORE POLITICAL THAN LEGAL INTEREST
The Maine Code of Judicial Conduct says, “A judge shall disqualify or recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” and then spells out several examples. In cases where a judge decides against recusal, he or she may ask the attorneys on either side to weigh in, which is what Stokes did.
Lynch said she doesn’t know how many times a judge has chosen recusal, and that the judicial branch doesn’t track those numbers.
In light of Tuesday’s disclosure, Stokes will not rule on whether Lembo’s lawsuit should proceed before the Tuesday deadline, since the case may end up with another judge.
The political interest in Lembo’s case already has outstripped the legal interest, and Stokes’ admission could be a reflection of the hot-button nature of the issue.
Stokes was appointed a judge in 2014 by Gov. Paul LePage, ending a long run as chief criminal prosecutor for the AG’s Office. Stokes also had to step down as mayor of Augusta after being sworn in as a judge. During his term as mayor, he was a member of Mayors Against Illegal Guns, a bipartisan group founded by Bloomberg and former Boston Mayor Thomas Menino. That group has advocated for “common-sense” gun laws, according to its website, and has often found itself opposite the NRA.
Lembo’s is the most high-profile case that Stokes has presided over to date.
The 68-year-old Rockland man made headlines late last summer after he shot an intruder who had broken into his apartment in Rockland. Lembo, who uses a wheelchair and is in poor health, said he bought the gun, a 1941 Russian-made revolver, to protect himself because he had been the victim of break-ins before. The intruder he shot, Christopher Wildhaber, was wounded, but not seriously. He was charged with burglary and remains in jail.
Lembo was not charged, but in the days that followed the incident he was informed by Stanford Management, the company that manages the Park Place apartment complex, that he had to turn over his gun or risk eviction. The complex, which is federally subsidized, said its rules prohibit tenants from owning firearms.
LAWSUIT FILED, NEW LAW PASSED
Lembo, bolstered by the NRA’s interest in his case, filed a lawsuit in November accusing the landlord of violating the Maine Civil Rights Act, which bans parties from interfering with an individual’s constitutional rights. The case hinges on whether Lembo’s 2nd Amendment rights supersede the property owner’s rights.
Lembo’s case, again with help from the NRA and its lobbyists, also led to legislation that sought to prohibit private landlords who accept housing subsidies from including restrictions on tenants’ ability to use, possess or transport a firearm or ammunition. A 1995 Maine Supreme Judicial Court ruling already prohibits public housing complexes, such as those run by the Portland Housing Authority, from banning firearms. The NRA led that effort, too.
Although the latest bill, L.D. 1572, failed in committee, it eventually was passed by the House and Senate after heavy lobbying, and was signed by the governor. The law, which goes into effect in July, allows landlords to impose “reasonable restrictions” related to the possession, use or transport of a firearm within common areas “as long as those restrictions do not circumvent the use or possession of a firearm in the tenant’s rental unit.”
The new law likely won’t have an impact on Lembo’s lawsuit. James Bowie, the attorney representing the landlord, said in court Tuesday that firearm possession is not an unfettered right, and noted that even the new law has some restrictions.
Bowie said Wednesday that he has no issue with Stokes and had no opinion on what Lembo’s attorneys might do.
“It’s clear to me that the NRA is taking this case seriously,” he said.
Read more at: Pressherald.com
I have been watching this case very closely. Thanks for the info.