The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for December, 2011

Membership, Discrimination, and Diversity

Posted by kswisher on Monday, December, 5, 2011

Canon 2C prohibits judges from “hold[ing] membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  Six months ago, we wrote about the sharply divided decision of the Sixth Circuit Judicial Council, which had concluded that Chief Bankruptcy Judge George Paine did not commit misconduct by remaining a member of an exclusively white-male country club.  The Judicial Conference of the United States has now officially disagreed.  In particular, its Committee on Judicial Conduct and Disability reviewed the decision and “easily” determined that the judge’s country club “invidiously discriminates against women and African Americans for purposes of Canon 2C and, consequently, that Judge Paine’s membership in the organization runs afoul of that Canon.”

The opinion is worth a close read for many reasons, only two of which follow.  (It is interesting, for example, that the Committee twice criticizes the Sixth Circuit for failing to investigate fully the matter and thus basing its decision on incomplete information; the Committee then does nothing further and bases its decision on the same information.  But let’s leave that problem for another day and focus on the content of this important opinion.)  First, the opinion is worth reading for the footnotes.  As is often the case, textual footnotes are among the most thought-provoking (or sometimes mind-numbing) part of opinions.  On the point that the Sixth Circuit’s investigation was inadequate, for example, the Committee expressed regret that the Sixth Circuit “appeared to resolve ambiguities in the record against the complainant.”  The Committee’s point is a good one, but is it clear that ambiguities (which invariably exist and persist) should be resolved in favor of complainants?  Perhaps the answer to that question should vary with the Canon at issue.  For Canon 2C, for instance, the respondent judge has voluntarily chosen to join or remain in the allegedly discriminatory organization, the judge will presumably have the best access to the organization’s membership rosters and policies, and the Canon is concerned in part with appearances.  In those circumstances, then, perhaps it might be permissible to shift the burden to the judge to prove that the organization does not discriminate — and perhaps that the organization also does not reasonably appear to discriminate. 

Canon 2C’s official commentary, on which the Committee later relied and built, does contain a form of burden-shifting when a judge joins or remains in a non-diverse organization, if “reasonable persons with knowledge of all the relevant circumstances would expect the membership would be diverse in the absence of invidious discrimination.”  “Relevant factors” in that regard “include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members.”  Here is the Committee’s application: “Nashville, Tennessee, is one of the major cosmopolitan cities of the Southern United States. In particular, it boasts a 27% African American population. Its female population is just over 50%. Although few organizations perfectly mirror the population trends of their surrounding locales, a member of the public would reasonably expect to see at least some women and African Americans among Belle Meade’s Resident Membership barring (1) invidious discrimination or (2) something unique about the Club — ‘such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members,’ [Canon 2C Commentary] — that would suggest otherwise. There is, however, nothing about Belle Meade’s stated aims or activities that provides any such justification for the total absence of any female or African American Resident Members. . . .  Naturally, there is no shortage of women or — as Judge Paine proclaimed in his 1990 letter to the Club’s Board — African Americans fitting that description.”  Thus, absent someone (presumably Judge Paine) coming forward with proof to the contrary (which is obviously unlikely in this case because Judge Paine believed that the club’s policies were indeed problematic), the judge’s membership may be determined to be misconduct.

Later in the footnotes, the Committee also conceded a bombshell: “To our knowledge, Canon 2C has never before been enforced.”  To place that statement in its context, Canon 2C, in its current form, has been on the books for twenty years.  Now, such shocking statements permit one’s optimistic or pessimistic nature to come out: judicial ethics regulation has finally matured to the point of enforcing a critical rule (and hopefully others like it) designed to ensure an actually and apparently impartial judiciary; or judicial ethics regulation has failed for twenty years to enforce such a critical rule.  Indeed, on the pessimistic side of the ledger, it is noteworthy that — despite finding a violation of Canon 2C — the Committee failed to impose any discipline:  because Judge Paine has expressed an intention to retire soon, and “because this decision represents the first enforcement of Canon 2C, there is no cause at this point for us to take disciplinary action.”  (Indeed, the Committee went further, proclaiming that the judge will retire with his “reputation . . . intact.”)  I have noticed this phenomenon several times in discipline decisions involving both lawyers and judges, although most of the cases are older ones.  The idea seems sound in a common-law based sanction regime: we should apply the (new) rule only retroactively because, in part, respondents necessarily could not have had notice of the rule in advance to guide their conduct.  The idea seems significantly less sound in a code-based sanction regime (i.e., the one that we have had for a long time): Canon 2C has always been publicly available and has always prohibited this behavior by its terms.  Why, then, do we give the first respondent a free pass?  We can come up with a few reasons, but because the Committee offered none (save the impending retirement), we have no one with which to argue.   

Yet another footnote is interesting and particularly so for sex-segregated organizations.  Judge Paine’s club (Belle Meade) did have a “lady membership,” which was priced less (but included no voting rights).  The Committee noted that “insofar as Lady Membership is preferable to other forms of membership, the exclusion of men from that category arguably constitutes another form of gender discrimination under the Code.”

Second, the opinion is worth reading because it offered some guidance to judges considering joining an organization: “Any judge considering membership in an organization should take steps to ensure that such membership would not appear improper. Naturally, those steps will differ to some degree depending on the particular circumstances. But we expect them to include, in all cases, a survey of the group’s membership, constitution, and bylaws. If ‘reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination,’ but the membership nevertheless is not diverse, the judge should err on the side of caution and decline membership.”  The Committee also offered a fuller vision of the two-year remediation exception (i.e., that a judge has up to two years to fix a discriminatory organization to which s/he already belongs): “The two-year qualification must be read in light of Canon 2C’s safeguarding of the appearance of propriety. Thus, we believe that this provision is available only if a judge determines that diversification efforts by the judge could reasonably succeed. In those circumstances, he or she may continue to hold membership in diligent pursuit of those efforts for a reasonable period of time not to exceed two years.”

The full opinion can be read here.

Posted in Canon 2, Judicial Ethics Generally | 1 Comment »

New Scholarship: Bam on Judicial Recusal Regulation

Posted by kswisher on Sunday, December, 4, 2011

Dmitry Bam (Maine) has just published a provocative article on judicial recusal.  Prof. Bam claims persuasively that we in the field have been ineffectively emphasizing the substantive recusal standards and the actual recusal results in specific cases.  As he explains, “[f]ocusing on the final recusal decision, and considering appearances only at the time of that decision, places too much emphasis on an aspect of recusal that may not be so important, at least when it comes to public confidence in the impartiality and fairness of American courts.” 

He instead recommends that we shift our emphasis in two steps: “The first part requires that attention shift away from the outcome-based recusal jurisprudence that focuses on the substantive recusal standard and the actual recusal decision. The second requires that attention shift toward the rules, regulations, and procedures that precede the recusal decision: namely, (1) ex ante regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place, and (2) new recusal procedures to govern the processes by which judges make recusal decisions.  The recommended shift of attention to ex ante regulation of judicial conduct and appearance based recusal procedures will promote the appearance of judicial impartiality.”

As Prof. Bam himself notes, “[i]t may seem odd at first glance that in this Article about recusal, the key jurisprudential change that I recommend is not actually a change to recusal rules at all, but rather a new approach to regulating judges and aspiring judges.”  But his aim is well-intended and one we should keep in mind in reform: “I hope to show that to maximize the appearance of impartiality, the time to think about recusal is before the appearance of bias arises in the first place.”

Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 BYU L. Rev. 943.

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »