In May 2011, PLN reported that the Sixth Circuit Judicial Council, on a vote of 10 to 8, had dismissed a misconduct complaint filed against a federal judge in Tennessee who was accused of being a member of a private country club with discriminatory membership practices.

Specifically, the complaint alleged that the club membership violated Canon 2C of the Code of Conduct, which prohibits federal judges from “hold[ing] membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”

The complaint, filed against Middle District of Tennessee Chief Bankruptcy Judge George C. Paine II, asserted that Judge Paine’s membership in the Belle Meade Country Club violated Canon 2C because, of the club’s 1,000+ members, only one was black; because that one black member could not vote or hold office in the club; and because no women club members could vote or hold office.

In fact, in the club’s 110-year history, no woman or black member had ever been afforded Resident Member status – the only category of membership that permitted voting or holding office in the club. [See: PLN, May 2011, p.10].

In dismissing the complaint in April 2011, the Sixth Circuit Judicial Council found that Judge Paine, who had been a Resident Member of the Belle Meade Country Club since 1978, had tried to address the club’s discriminatory practices (albeit without success), and his “long and sincere efforts to integrate the club ... preclude a finding that he has engaged in misconduct.”

The complainant appealed the Council’s decision to the Committee on Judicial Conduct and Disability of the Judicial Conference, the highest administrative body for the federal courts. The appeal argued that the decision of the Judicial Council was against the weight of the evidence and inappropriately relied on factors other than the club’s membership practices related to race and gender, and that the Council’s investigation was inadequate.

On November 17, 2011, in an unprecedented ruling, the five-member Committee overturned the Judicial Council’s decision and found for the first time a violation of Canon 2C. The Committee held that based on the facts presented, “the conclusion that Belle Meade engages in invidious discrimination against women and African Americans is inescapable and, to the extent the Sixth Circuit Judicial Council reached a different conclusion, that conclusion is clearly erroneous.”

The Committee added, “we easily conclude that Belle Meade 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 ruling by the Judicial Conference Committee was extremely rare; the Committee had issued only four other opinions since April 2006. In holding that judges must not be members of discriminatory organizations, the Committee noted that “the judiciary’s ability to decide cases efficiently and effectively would be severely impaired, and public confidence in the courts would be undermined, if litigants had reason to suspect judicial bias.”

The Committee further observed that “Judge Paine’s membership in Belle Meade and the Sixth Circuit Judicial Council’s decision have been a source of much public interest and controversy. Moreover, another Club member who was nominated to the federal bench in 2008 was publicly chastised on the basis of that membership and ultimately failed to receive confirmation.” That unsuccessful federal judicial nominee, Gus Puryear, then-general counsel of Corrections Corporation of America, was profiled by PLN in 2009 [See: PLN, March 2009, p.1].

However, citing Judge Paine’s “forthcoming retirement at the end of 2011,” and because Canon 2C had not previously been enforced, the Committee declined to take any disciplinary action against Judge Paine.

The complainant, not satisfied with the lack of discipline despite a clear finding of misconduct by the Committee, filed a petition for reconsideration or review by the Judicial Conference.

The petition noted that “[n]either Judge Paine nor any other judge should get a ‘free pass’ when they are found to have violated the Code of Conduct simply because they intend to retire.” Further, “there is no justifiable reason why a federal judge should get one free bite at the Code of Conduct apple on the basis that there has been no prior enforcement of the Canon that the judge has violated.”

Additionally, the complainant wrote that the “decision not to impose disciplinary sanctions on Judge Paine will serve to reinforce the notion, held by many members of the public, that federal judges are ‘above the law’ and the federal judiciary is unable to police itself.” Unwilling to accept mere crumbs from the plate of judicial accountability, the complainant asked that the Committee reconsider its decision not to impose discipline on Judge Paine.

As a result of the petition for reconsideration, the Committee on Judicial Conduct and Disability issued an unprecedented amended ruling on December 1, 2011. The amended ruling specified that the Committee’s decision constituted a public reprimand.

Thus, Judge Paine now belongs to an even more exclusive club than the Belle Meade Country Club – the very small group of federal judges who have been publicly disciplined for misconduct. See: In re: Complaint of Judicial Misconduct, Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, C.C.D. No. 11-01.

Additional sources: Associated Press, ABA Journal, Thomson Reuters, Nashville Scene

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