STATE OF MAINE SUPERIOR COURT YORK, ss CIVIL ACTION DOCKET NO. CV-15-269 RENEE LEGRAND, Plaintist v. ORDER ROBERT M.A. NADEAU, York County. Probate judge, eta, Defendants In this action plaintiff Renee LeGrand, joined by proposed Intervenor Estate of Virginia Milo, seeks declaratory and/or injunetive relief against York County Probate Judge Robert M.A. Nadeau based on the claim that certain schedule changes instituted by Judge Nadeau in April 2015 deprived litigants in the York County Probate Court of their right of access to the courts and their right to due process under the U.S. and Maine Constitutions. LeGrand sues on her own behalf and on behalf of a class composed of all litigants who presently are or may in the future be harmed by alleged delays in the York County Probate Court as a result of scheduling decisions alleged in paragraphs 13 and 14 of LeGrand’s amended complaint, See order dated December 28, 2015, 25, 2016, Post The action was tried to the court for two and a half days on February 23. hearing briefs were thereafter submitted, and this order constitutes the court's findings of fact and conclusions of law.Relevant Procedural History LeGrand filed her initial class action complaint in this action on December 2, 2015. In that complaint she sought declaratory and injunctive relief under 42 U.S.C. § 1983, the First and Fourteenth Amendinents to the U.S. Constitution, and Me. Const,, Art. 1, Sections 6-A, 15, and 19, Subsequently, in light of certain 1996 amendments to 42 U.S.C. § 1983, LeGrand amended her complaint to seek declaratory relief, atleast in the first instance." In addition to naming hudge Nadeau as the defendant, LeGrand named York County as a party in interest becouse the scheduling relief LeGrand sought would affect not just Judge Nadeau but also the York County Register of Probate and her staff and could have budgetary implications. See 14 M.RS, § 5963 (parties to be joined in actions for declaratory relief). York ‘County appeared in the action and participated through counsel atthe tral, supporting LeGrand!'s claim for relief. A class was cert ified without objection by order dated December 28, 2015. On Januaty 6 2016 the court denied Judge Nadean's motion to dismiss based on judicial immunity in light of USS, Supreme Court precedent that judicial immunity does not bar equitable relief. Order of January 6, 2016, ‘The ease had originally been scheduled for a preliminary injunction hearing. Once the complaint was anended to seek declaratory relief in the frst instance, the question arose whether "In 1996 Congress amended 42 U.S.C. § 1983 to provide that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was tnevailable.” 42 U.S.C. § 1983, 4s amended in 1996 by Pub, L, No, 104-317, 110 Stat, 3847 § 300(c). LeGrand elaims under the Maine Constitution were not necessarily limited to declaratory relief in the first instance, but the court advised counsel that absent evidence of unwillingness to abide by declaratory relief, any relief awarded under the ‘Maine Constitution would be declaratory as well. See Litlefeld v. Town of Lyman, 447 4.24 1231, 1235 (Me. 1982)the court could hold a “preliminary declaratory relief hearing,"? However, because the court consolidated the preliminary hearing with the trial on the merits pursuant to M.R.Civ.P. 65(b\2), that issue did not need to be decided. Prior to the tial, counsel for Judge Nadeau moved to dismiss LeGrand’s claims and Aecertify the class on the ground that LeGrand's claims had become moot prior to wial, Shorlly thereafter the Estate of Milo moved to intervene as a plaintiff. At the beginning of the tral, the court ruled that even though it appeared that LeGranc?’s individual claims had become moot, that id not require dismissal of the claims of remaining class members. See Sasna v. Iowa, 419 US. 393, 401-03 (1975), The court also reserved decision on the issue whether, despite mooiness, the issue presented by this case is of “greal public interest” sufficient to warrant the issuance of Aeclaratory relief. See Ten Voters of Biddeford v. City of Biddeford, 2003 ME 59 4 8-9, 822 241196. By the time of the date set for rial, counsel for Judge Nadeau had not had an opportunity to file opposition papers to the motion to intervene on behalf of the Estate of Milo, and the court reserved decision on that issue, it was agreed, however, that any evidence the parties wished to resent with respect to the Bsiate of Milo would be offered atthe trial, and that whether or not the court granted the Estate's motion to intervene, there would not be a second trial? ® See Original Gree American Chocolate Chip Cookie Co. v. River Valley Cookies, 970 F:2d 273, 276 (Ath Cir. 1992) (Posner, 1). ? At the tial the coun provisionally admitted Plaintiff's Exs, 16 and 17 over counsel for Nodenu's objection that those were inadmissible as settlement documents. Nothing in those documents refers 10 seitlement, and the court finds that they were prepared as scheduling sltemnatives, The court reserved decision as to the admissibility of an email marked as Plainti's Ex, 20 and now concludes that thet exhibit is not admissible under M.R.Evid. 408, Although Judge Nadeau released that email to the press, nothing it M.R.Evid. 408 suggests that the protection of setlensent communications is fot if they are publicized,Findings Based on the evidence at trial and having considered the credibility of the witnesses who testified ond the documents admitted in evidence, the court finds as follows: Defendant Robert M.A. Nadeau was elected to the office of York County Probate Judge {in 2012 and assumed office in Janvary 2013. He had previously served as Probate Judge from 1997 to 2008. Probate judges in York County and across the state serve on a part time basis, Donna Bailey, who served as Probate Judge from 2009 through 2012, scheduled probate matters on Wednesdays and Thursdays of each week, The first three Wednesdays of the month were {generally set for so-called routine matiers, not involving contested tteatings, and new cases that Inac! been filed were assigned return dates on a Wednesday approximately 60-90 days in the future, See Maine Rule of Probate Procedure 40(a); Plaintiff's Ex, 29° The last Wednesday in the month and all of the Thursdays were generally set for trials or contested hearings When Judge Nadeau was elected to succeed Judge Bailey in November 2012, the Register of Probate, Carol Lovejoy, told him that she and her staff liked the Wednesday- ‘Thursday schedule, Defendant’s Ex. 19. Judge Nadeau continued to utilize that schedule in 2013, 2014, and for the first three months of 2015, ‘On April 1, 2015, in connection with the presentation of the Probate Court budget for FY 2016, Judge Nadeau appeared before the York County Commissioners and argued that the Probate Judge position should be made full-time. County Ex. 13.5 Materials he distributed argued “AF on a return date, a matter was unopposed and did not require any further proceedings, the coun would center on order resolving the case at that time, If it appeared that a contested hearing was required, the court woutkd hald a short pre-trial conference and then place the case om the tial calendar. * on the legal siatus of probate judge as a pastime position, see this court's order dated February 12, 2016 at 23that at a minimum the probate court caseload required a judge to be present at least three day's per week rather than two days per week. County Ex, 26. Primarily, however, Judge Nadeau tmaterials argued that the Probate Judge should receive a higher salary ~ either $90,000 for a thice day week or $119,476 for a full ime position, County Ex. 26 p. 8 section Q* ‘The County Commissioners tabled the issue until their next meeting on April 15, 2015. At that time they declined to raise his salary beyond a previously budgeted increase to $54,206. County Ex. 14, Judge Nadeau attended that meeting and lefi almost immediately after the Commissioners? decision on his salary request. Approximately 15 minutes later, at 5:36 pm, Judge Nadeau sent the first of three emails to Register Lovejoy. That email, set from Juxige Nadeau’s celiphone, instructed her to block off a full half day every second Thursday so that he would have the time to write decisions and address unscheduled business. It also instructed her to schedule no more than two returnable estates per half hour, no more then five name changes per half hour, and no adoptions involving home studies any sooner than 30 minutes after a prior hearing had finished. Judge Nadeau's ‘ennail instructed Lovejoy to reschedule already scheduled matters immediately adding, “We have to put the users of the court ahead of budgetary non-support.” Plaintiff's Ex. 1 In a second email sent from his cellphone at 12:07 am on April 16, 2015, Judge Nadeau instructed Lovejoy that, effective the following week, York probate court would no longer be held on Wednesdays and Thursdays but would instead be held on Mondays and Fridays, He “In those materials Judge Nadeau argued that because of his probate duties, his income from his outside law practice had dropped substantially. County Ex. 26 p. 5 section D(5). The county pointed out that in an argument before the Lay Court in December 2014, Judge Nadeau had previously asserted that his law Practice had “gone down the tubes” due to certain allegedly defumetory publications. He did not disclose ‘ounty Commissioners the perceived impact of the allegedly defamatory publications on his lawinstructed her to iunmediately reschedule the cases scheduled for the following week and all future cases, including all specially assigned matters, accordingly. Plaintiff's Ex. 2 In a third email sent to Lovejoy at 8:46 am on April 16, 2015, Judge Nadeau instructed her to make additional scheduling changes. He stated that he had decided to adopt a schedule of having a one week traiting list per month plus 2-3 days for non-trial matters. His plan was to hold court on the fist two Mondays of every month and set the trailing list for the full week beginning with the third Monday of every month. Plaintiff's Ex, 3.7 This would result in seven days of court time per month, with the additional day to be set aside for research and writing. See Plaintiff's Bx. 4 p. 2 Ln his April 16 8:46 am email (Plaintiff's Ex. 3) Judge Nadeau stated, “I know this won't enable us to keep up with the lord” but asserted that it would ensure that the cases he did hear ‘were allotted sufficient time. He also noted that if any of the scheduled days included a holiday, “that holiday will count against the court day that would otherwise have been available, thus seducing the remaining court days that month to seven.” As in his email sent at 5:36 pm the previous evening, Judge Nadeau’s 8:46 am email expressed his resentment that the county had been unwilling to support what he described as necessary additional court time In an email sent eleven days later on April 27, 2015, Judge Nadeau made a few additional modifications to the schedule, expressly noting that the last Friday of every month (the eighth court day of the month) would be set aside for research and writing with no heatings scheduled and finther instructing Lovejoy not to scheclule any hearings that did not wrap up by 3:30 in the afternoon. Plaintiff's Ex. 4 * In his email, Judge Nadeau also modified that schedule in April to accommodate a previously scheduled retumn date the following week and in August because ofa planned vacation,Judge Nadeau acknowledged he was at feast “upset” or “emotional” when he wrote the first of the three emails sent in the immediate aftermath of the County Commissioners’ meeting, He also acknowledged that the scheduling changes set forth in his three emails were precipitated by the County Commissioners’ decision on April 15 not to approve his requested salary increase for additional court time. Although Judge Nadeau had told the County Commissioners that additional court time ‘was necessary and his emails indicated that the schedule changes were designed to pul the users of the court ahead of the county’s “budgetary non-support” (e.g., Plaintiff's Ex. 1), the effect of his schedule changes, particularly during the remainder of 2015, was to reduce the amount of court time avnilable and to delay the hearing and resolution of probate court cases. Specifically, Judge Nadeau’ instruction that his scheduling changes were to be effective immediately — rather than transitioning to the new schedule without disrupting the cases that had already been scheduled ~ required a complete rescheduling of all the cases and matters on the court's existing schedule, Because counsel and parties had been relying on the existing schedule and had cases in other courts or other conftiets on the first two Mondays of every month or on the cays now set for the trailing list, many of the previously scheduled cases had to be rescheduled out into the future. Second, the change to Monday's meant that there were potentially more holidays on court days, which meant, as Judge Nadeau acknowledged in Plaintiff's Ex. 3, that the holidays would reduce the number of court days available for a given month. Maine has 12 holidays per year (New Year's, Martin Luther King Day, Presidents’ Day, Patriots’ Dey, Memorial Day, July 4, Labor Day, Columbus Day, Veterans Day, Thanksgiving, Priday after Thanksgiving, andChristmas).* Six of those holidays (MLK, Presidents’ Day, Patriots’ Day, Memorial Day, Labor Day, and Columbus Day) are always celebrated on Mondays. Except for Thanksgiving (always ‘on Thursday) and the following Friday, the other holidays are celebrated on the weekday on Which they fall, including Monday, and are celebrated on Monday if they fall on Sunday. Whenever court days had previously falien on state holidays, both under Judge Nadeau and his predecessors, court had not been held and the probate judge had received a paid day off. ‘The switch to a schedule on the first three Mondays of the month, however, meant that it was substantially amore likely that court days would fall on holidays on which court would not be held \without reducing the Probate Judge’s salary. Judge Nadeau was fully aware of this effect, In an email sent at 12:13 am on April 1, 2015 (in the early morning hours on the day that the County Commissioners first considered his sequest for an inezease in salary and court ime) Judge Nadeau wrote that he wanted more time (0 be provided between hearings. County Ex. 25. He also wrote, [Whe are going to have to re-evaluate court holidays so that the county will have to pay for my holidays just as you and the staff are paid for those holidays and so that the holidays don't fatl on say personal financial baek Scott free to the unapprecintive county ‘manager: IF this means not always doing court on Wednesdays or ‘Thursdays, but instead on Mondays on some occasions, so be it. In 2015 the result of scheduling court on Mondays resulted in a reduction of only one day in available cowt time.” For 2016, however, the loss of court days from switching to Mondays "There are two other days, Christmas snd New Years Eve, that are often given as half days off and on which itis unlikely that any significant number of court hearings will be scheduled " In 2015 two Monday holiday's (MLK and Presidents’ Day) had already passed by the time Judge Nadeau made bis schedule changes. The schedule as sei forth in Plaintf?'s Exs. 3 and 4 resulted in the loss of Patriots Day, Memorial Day, Labor Day, and Columbus Day. However, because Veternns Day ard Thanksgiving were on Thursdays and including Christmas Eve (also on a Thursday in 2015), the net loss was only one court day.would have potentially resulted in a net Joss of seven court days." However, Judge Nadeau has recently altered the 2016 schedule to hold cout on several Tuesdays when the preceding Monday is « holiday. See County Ex. 24, discussed below, {In one or more court filings responding to contentions that be had picked Mondays to get ‘more holidays, Judge Nadeau has contended that in scheduling cases on four Mondays a month, he was returning to the same schedule he had followed during his previous tenure as Probate Judge ending in 2008, This was incorrect. As probate judge in 2005-08, although court was occasionally scheduled on Monday’, Judge Nadeau scheduled his routine matters and retunn days on Tuesdays with wailing dockets beginning on Tuesdays as well, Plaintiff's Exs. 38 and 40."" Judge Nadeau’s decision (o reduce the number of routine matters per hour with grester intervals between cases required the setting of fewer cases per court day and resulted in further delays in scheduling, Finally, Judge Nadeau's decision to reserve an ntize court day per month for research and writing also removed one potentially available court day from the schedule and meant that fewer cases could be called in, Subsequently, Judge Nadeau did not use all of his designated writing days for that porpose but used portions of certain writing days to call in routine and other matters. ‘The court is veluctant to question a jucge’s decision that he needed more time lo prepare for cases and to research and write his decisions. This is particularly true because the court finds that Judge Nadeau often exceeds the 64 hours per month on which York County based his salary. {allowing more time benween eases and setting aside writing days were the only changes Judge ‘tn 2016 MLK Day, Presidents’ Day, Patriots’ Day, Labor Day, and Columbus Day al fall on one ofthe first three Mondays on the morth, in addition, July 4 and Chrisimas will be celebrated on Mondays in 2016, If Wednesday-Thursday had remained as the probate court days in 2016, none of those days would have been lost to holidays. "" Probate court was scheduled on one Monday in 2008, three Monday: and three Mondays in 2003. id. None of those Mondays were holidays, 07, eight Mondays in 2006,Nadeau had made, it would be possible to conclude that he was cutting back only because he was ited time allowed. tunable to give eases the attention they deserved in the li However, given the other changes that Judge Nadeau abruptly made and weighing all the evidence in the ease and the credibility of his testimony and that of other witnesses, the court finds otherwise. Although Judge Nadeau stated that his schedule changes were made to serve litigants, he knew that the schedule changes would cause or exacerbate delays that would harm those litigants. In large part, the schedule changes were intended to get back at the County Commissioners who had rejected Judge Nadeau’s request for an increase in salary and court time. This is denoonstrated by statements made by Judge Nadeau instructing litigants that if they were dissatisfied by delays, they should contact the County Manager and the County Commissioner for their District, specifying those Commissioners by name, These statements were made on the record on one occasion and in a number of written orders entered when litigants facing delays filed motions to expedite their cases. Plaintiffs’ Bxs. 6-12, See, e.g., Order dated October 5, 2015, Plaintiff's Ex. 9 ("The parties may wish to ditect their concerns about scheduling and Court time to the York County Manager, Grogory Zinser (tel. 207-324-1571) and {o the applicable elected county commissioner serving the applicable venue, namely, Michael J. Cote as he has been reluctant to support the funding of additional Court days and hearing tine”); Plaintiff's Ex. 12 at p. 31 (*So, your county commissioner is Commissioner Gary Sinxlen, and I ‘can give you his phone number..." It beats emphasis that the court is not ruling that a request to the County Commissioners for some additional court time would necessarily have been unjustified, What was unjustifiedwas Judge Nadeau’s response to the Commissioners’ denial of his request to have his salary inreased to $ 90,000 or $ 119,476, While the changes discussed above caused delays and disruption in the court schedule, partieulatly in the short terun, one of the changes made by Judge Nadeau appears to have had a beneficial effect, at least once the disruption eaused by the immediate rescheduling had been resolved. This was his switch to multi-day trailing lists for trials, Previously Thursdays had been designated for trials but under the new schedule the third week of the month was set aside for trials. Exposing cases for trial by setting them on a multi-day trailing list eventually caused more cases to be settled and more cases to be reached, When trials took longer than one day, the use of one week trailing lists also minimized the possibility that trials would be conducted one day at a time over a series of weeks. ‘The probate trial ealendar showed that the number of evidentiary hearings requested in 2015 had increased over the previous year. In connection with those hearings counsel hed also estimated that a sizeable number of trial days would be needed. Ultimately, as discussed in Lovejoy’s testimony, only about 10 percent of the tril days estimated by counsel were actually required, Nevertheless, as of September 2015 the benefit of using a trailing trial list had not yet been realized. Moreover, in some cases, parties in routine matters that had been delayed because of the schedule changes filed motions for an expedited hearing. In many eases those motions were granted by Judge Nadeau, and those cases would then be placed on days otherwise designated for trials In September 2015 Judge Nadeau, faced with a number of eases set for trial or contested evidentiary hearing and now recognizing that there was a very significant backlog in schedulinguncontested and routine matters ~ a backlog that was essentially selfinflicted ~ decided to appoint probate judges from other counties as referees to hear 11 of his contested cases Aroostook Probate Judge James Dunleavy was appointed in nine cases, and Kennebec Probate Judge James Mitchell was appointed as a referee in two other cases. This had the effect of delaying the cases that were referred. However, it allowed Judge Nadeau to dedicate what would otherwise have been trial days to reduce what he acknowledged was a very substantial backlog in initial appearances, uncontested matters, review hearings, and pretrial conferences “so that scheduling into almost one year away can be gradually ameliorated and, hopefully, we can reduce the backlog over time.” September 5, 2015 email in County Ex. 30. Judge Nadeau originally wanted to use the interchange statute, 4 M.R.S. § 306, to assign cases to other probate judges. When he found that only their expenses would be paid under that statute, be used fimds in bis existing budget to appoint the other probate judges as referees. An ‘email Judge Nadeau sent at that time demonstrated that the county’s denial of his request for a salary increase was still a sore point, County Ex, 29 (complaining that the County Manager and Register Lovejoy appeared “lo be opposed to properly compensated judges, whether in interchange or in this offic By the time of trial in February 2016, the scheduling situation had improved 1o a significant extent. Many of the cases that were delayed had been resolved, including that of LeGrand, the named plaintiff and class representative. LeGrand had filed for joint or sole guardianship of her granddaughter, Serenity Wellace (bom September 28, 2012), based on mental health issues and alleged unfitness of Serenity’s mother, Kayla Wallace, LeGrand obtained a temporary guardianship, which expired on August 31, 2015. 2LeGrand’s request for a permanent guardianship was scheduled for trial in July and again ‘in August but was either continued by the court or not reached.'? In September, LeGrand’s case ‘was one of the cases that Judge Nadeau did wot reach and instead assigned to Judge Dunleavy as 4 referee, At that time, even though the (emporary guardianship had expired, Serenity was still living with LeGrand. Serenity’s situation became much more tenuous when her mother asserted hier legal right to custody in October and took Serenity back. At that time Serenity’s case was still before Judge Dunleavy, end no proceedings had yet been scheduled. LeGrand testified at trial that during the time that Serenity was with her mother, the family was evicted, Serenity’s mother and her partner were both anrested, and Serenity experienced emotional harm. As of late January 2016 no hearing had been held, and Judge Dunleavy had in fact granted a motion for summary judgment against LeGrand, However, by ‘motion dated January 29, 2016, the parties reached an agreement for co-guardianship with Serenity to reside with LeGrand and Kayla to have visitation. Under the agreement, the ‘guardianship shall terminate if Kayla meets certain specified conditions, including stable housing and employment The panties disputed at tvial whether LeGrand’s case was ready for trial prior to December 18, 2015 because Serenity’s father had not been served by certified mail, retum receipt requested and restricted delivery, as required by MAR. Prob. R. 4(€)(1)(B), until that date Defendant's Ex. 15. In late June 2015 the father bad been served by certified mail but his wife had signed the receipt, Defendant's Ex. 5. However, where circumstances warranted, Judge ‘Nadeau had previously held hearings and issued guardianship orders that would be subject to later reconsideration. In addition, there were two affidavits from counsel in the file stating that " Judge Nadeau points out that requests for protection were made in July and in August by counsel for LeGrand and by counsel for LeGrand’s daughter, Kayln Wallace, who opposed the guardianship. Those requests for protection, however, did not caver sll ofthe days on the tia! calendarthe father and his wife had verbally confirmed notice and had stated that they were mailing affidavits of consent, Defenslant’s Exs. 5 and 6. ‘The court is skeptical that, if this lawsuit bad not been filed, Judge Nadeau would have declined to proceed with a hearing on LeGrand’s application for permanent guardianship just because of a technical deficiency in service on the father. However, for present purposes, the significant fact is that the Serenity Wallace case is now resolved. Whether there will be any further proceedings in that case is uncertain. If there are any further proceedings, whether those proceedings will be delayed as a result of the scheduling changes challenged in this ense is even more uncertain, Proposed Intervenor Estate of Virginia Milo does not present the same potentially urgent circumstances as LeGrand’s request for a guardianship to protect her four-year old granddaughter, ‘The Mil ‘case was filed on October 29, 2015. On December 11, 2015 the ate filed a motion seeking an expedited hearing to sell the decedent's home as promptly as possible to avoid having to pay heating costs and taxes that would reduce the assets in the estae However, thnt request cannot be heard until all required notices have been given or waivers of notice have been oblained. As of February 11, 2016 there was at least one waiver of notice missing, Plaintiff's Ex. 37."° As of the time of trial most routine matters were still being reached three months later than they would have been reached prior to Judge Nadeaw’s schedule changes. In addition, because of the delays that had been experienced fiom April 2015 onwards, officials at DHHS had been recommending that, where possible, adoption proceedings should be brought in other cordingly, the court grams the Estate's motion to intervene but finds that dhe Estate’ to the courts has not been violated. right of accesscounties. There are now significantly fewer adoption proceedings being brought in the York County Probate Court than in past years However, all but one of the cases referred to other probate judges had been resolved, and the final case had been heard and was awaiting the submission of Judge Mitchell's final report Moreover, in January 2016 there were no cases on Judge Nadeau's iil list. This was because the backlog of eases set for trial or contested hearing had been eliminated, in part due to the use of the trailing wrial list. In addition, because of the delay that had occurred in setting cases for their first return date ~ at which time the cases requiring contested hearing are identified — there ave currently fewer cases awaiting trial in the pipeline, Judge Nadeau has also recently modified the 2016 schedule. On three occasions where court would not have taken place because of Monday holidays, he has scheduled court on ‘Tuesdays instead. He bas also scheduled time for routine and other court matters on four of the Fridays that he originally instructed should be designated as writing days, County Bx. 24. It is likely that these changes were motivated at least in part by the pendency of this lawsu However, the court does not find that there is any likelihood that Judge Nadeau will not adhere to ‘these changes. If other currently scheduled writing days are not needed in the future, those days can also be devoted to accelerating the scheduling of routine matters. ig delay in the scheduling of routine matters In sum, class members are still experien Register Lovejoy has estimated that if the Probate Court were retumed to the Wednesday- ‘Thursday schedule, the scheduling of routine matters could be accelerated by almost three In what appears to have been an effort to moot the claims asserted against him, Judge Nadea also ‘made efforts to expedite LeGrand’s guardianship ease immediately afier this lawsuit was filed and 10 expedite action on the Estate of Milo's application immediately afier the Estate of Milo moved 10 intervene. Defendant's Ex. 15 (status conference scheduled in LeGrand two days after the filing of this lawsuit); Pimtif’s Ex. 36 (email attempting to schedule Milo hearing one cay after Judge Nadeau became avvare of motion to intervene)‘months without reducing the longer intervals between cases that Judge Nacleau had sought in his 5:36 pm email on April 15, Some of that acceleration, however, will be accomplished without returning to the Wednesday-Thutsday schedule by the use of four writing days and three Tuesdays as set forth in County Ex, 24, Emergeney hearings, wials, and other contested hearings ~ although previously subjected to delays because of the abrupiness of the April 2015 schedule changes ~ are now essentially caught up, LeGrand’s own case has been resolved for the indeterminate future, Moreover, counsel for the class plaintiffs has not identified any comparable case for which it can currently be argued that a court date that is urgently needed will be delayed because of the April 2015 schedule changes, LeGrand premises her claim and the claim of the elass she represents on the tight of access to the courts under both the United States and Maine Constitutions, on the right to procedural and substantive due process under both the federal and state constitutions, and on the ‘open courts provision in the Maine Constitution, Under the U.S. Constitution, the right of access to the courts is derived from the due process clause of the Fourteenth Amendment, fiom the First Amendment right to petition the government for redress of grievances, and from the privileges and immunities clause. See, eg. Los Angeles Counly Bar Ass'n v. Eu, 979 F.2d 697, 705-06 (9th Cix. 1992); Diekhaw ¥. ‘Simmons, 804 F.2d 182, 183 (Ist Cir, 1986). Under the Maine Constitution the right of access to the counts i similarly protected by due process under Art. 1, § 6-A, by the right to petition forredress of grievances under Ant. 1, § 15, and by the open courts provision contained in Art. 1, § 19, The Law Court has held that the due process provisions of the U.S. and Maine Constitutions are coextensive and has always relied on federal easelaw in interpreting the constitutional right of access to the couns, E.g., Doe v. Williams, 2013 ME 24 § 65, 61 A.3d 718; Carroll F. Look Construction Co. v. Town of Beals, 2002 ME 128 § 17, 802 A.2d 994; Nader v, ‘Maine Democratic Party, 2012 ME $7 21, 41 A.3d 551 ‘The difficulty presented by this case is that LeGrand and the class she represents have not bbeen denied access (o the courts or the right to present their claims for relief to the Probate Court. Instead, they have been subjected to delay. As the Ninth Circuit observed in Los Angeles County Bar Ass'n . Eu, all the cases in which constitutional violations have been found “involve the right to pass through the courthouse doors and present one’s claim for judicial determination.” 979 F.2d at 706, The Ninth Circuit found that there were no decisions recognizing a right to judicial determination within a specified period of time. Id, Indeed, both the Ninth Circuit and the First Circuit have stated that “delay per se is not unconstitutional.” Los Angeles County Bar Ass'n v, Eu, 979 F.2d at 707; Ad Hoe Committee on Judicial Administration v, Massachusens, 488 F.2d 1241, 1244 (Ist Cit. 1973), LeGrand has not provided the court with any contrary authority, nor is the court aware of any.'* Obviously, an interminable delay would have the same effect as an outright denial of access, but the LeGrand class is not faced with any interminable delays, Moreover, in some "Of the varius constitutional provisions fiom whieh the right of access ta the cours is derived, only one refers to delay. The “open courts” provision of the Maine constitution, Art § 19, includes langunge that right and justice shall be administered freely and without sale, completely, and without denial, promptly and without delay.” However, Art, 1 § 19 has never been intespreted to mean that delays ate per se unconstitutional. 1t precludes only delays that are so unreasonable as to deny meaningful access to the judicial process. Maine Medion! Center v. Cote, $77 A.24 | 173, 1176 (Me, 1990), 7circumstances delay that results in the denial of urgently needed relief might also effectively constitute # denial of the right of access to the courts. In Los Angeles County Bar Ass'n v. Bu, the Ninth Circuit stated that it did not “discount the possibility that delays in certain circumstances. could effectively deprive individual litigants of the ability to vindicate fundamental rights.” 979 F.2d at 707, See Maine Medical Center v. Cote, $77 A.2d at 1176 (potential violation of Maine Constitution's “open cowits” provision if delays are “so unreasonable as to deny meaningful access tothe judicial process”), In this ease, only the expiration of LeGrend’s guardianship and the repossession of Serenity by her mother arguably presented a situation where the schedule changes resulted in ‘unavailability of a hearing to seek urgently sought relief and therefore in a potential denial of meaningful access to the judicial process, However, the Serenity Wallace case has since been tesolved, and counsel for the class plaintiffs has not identified any other case that currently presents or even previously presented comparably exigent circumstances. In addition, the court cannot find on this record that, if such a situation were to arise in the future, an emergency hearing could not be held in a timely fashion, Notwithstanding the scheduling problems that cccunted during 2015, the Probate Court's trial ealendar is now eaught up, and time is available for any argent matters that may arise, ‘That leaves the question whether, given the court's findings as to Judge Nadeau's motive and the effect of his schedule changes, the delays in routine matters that still exist justify deciaratory relief, This might be true if, under the circumstances, the remaining delays caused by the April 2025 schedule changes constitute a violation of substantive dite process. To reach such 4 conclusion, however, the court would have to go beyond its findings that Judge Nadeau's actions were deliberate and retaliatory and would also have to find hat they were intended to 18han litigants in his court and constituted an abuse of power so outrageous as to shock the conscience, County of Sacramento v. Lewis, $23 US, 833, 846-47, 854 (1998), The schedule changes were, at least in part intended to eause harm in the form of delay affecting probate court litigants in order to send a message to the County Commissioners However, there is certainly a question whether Judge Nadeau's actions met the high standard of iolation, outrageousness necessary for a substantive due process {i the end, the court does not need to decide that issue, Declaratory relief should only be awarded when it would serve some useftl purpose. Eg, Eastern Fine Paper ine. v. Garriga Trading Co, 457 A.2d 1111, 1113 (Me. 1983). In this case, whether or not Judge Nadeau's actions violated substantive due process or any other constitutional rights of probate cout litigants, the court cannot find that it would serve eny useful purpose to issue declaratory relief at this juncture, This is true fora number of reasons: First, as noted above, by far the most significant effects of the scheduling changes occurred in 2015, and the court ennnot fashion retroactive relief. As of now the only continuing delay that is being experienced is a three month delay in the scheduling of routine matters. Second, the schedule modifications recently undertaken by Judge Nadeau (set forth in County Ex. 24) have resulted in more court days being made available and are therefore likely to reduce the delays that still remain. Although it is likely that those modifications were motivatee in part by the pendency of this Jawsuit, the court sees no likelihood that Judge Nedeaw will reverse those modifications if declaratory relief is not awarded in this action, Third, the court has found that at least one of Judge Nadleau's schedule changes ~ his adoption of a week-long trailing trial list ~ had a beneficial effect. Accordingly, the court cannotjustly ordering a return to the Wednesday-Thursday schedule requested by counsel for the plainti class, Fourth, and perhaps most importantly, this court is simply not well equipped to intervene in the scheduling of probate court matters, nor can it accurately predict the practical effect of any ‘ufempl it might make to do s0. By way of example, part of the problem experienced in 2015 was ‘caused by the abrupt removal of certain court days and their redesignation as writing days. That does not mean that some of the writing days were not necessary. It also does not mean that ‘writing days will not be required in the future. Ifthis court were to issue declaratory relief stating that certain writing days should be restored as court days, it would handeuff the Probate Judge's ability to lake a writing day if one were necessary because ofa lengthy or complicated case, A court needs to be able to adjust its schedule in light of the demands placed upon it and the resources available, Absent very compelling reasons, another court should not attempt to back-seat drive that process, In this case, particularly where the major effects of the challenged schedule changes are all in the past, there is no reason (o depart from this principle Finally, this does not qualify as a case where declaratory relief is called for under the “great public interest” exception because it is highly fact-specific and not likely to recur and horitative because this is not an issue on which non-parties would benefit from an determination, See Ten Voters of Biddeford v. City of Biddeford, 2003 ME 59 § 9. For all the above reasons, the court declines to issue declaratory relief. ‘The entry shall be: 1. The Estate of Milo's motion to intervene is granted. 2. For the reasons set forth above, the court declines to enter the declaratory relief sought by the plaintiff class and therefore enters judgment for defendant. 203. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a), Dated: March 29, 2016 2 PDO ‘Thomas D. Warren Justice, Superior Court