THE COURTS
Title 207—JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
[ 207 PA. CODE CH. 33 ]
Formal Advisory Opinion 2015-2
[45 Pa.B. 4154]
[Saturday, August 1, 2015]Notice is hereby given that the Ethics Committee of the Pennsylvania Conference of State Trial Judges has issued Formal Advisory Opinion 2015-2 Affiliation with Discriminatory Organizations which is set forth as follows.
EDWARD D. REIBMAN,
Chairperson
Ethics Committee
Pennsylvania Conference of State Trial Judges
Annex A
TITLE 207. JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
CHAPTER 33. CODE OF JUDICIAL CONDUCT
Subchapter B. FORMAL OPINIONS § 15-2. Affiliation with Discriminatory Organizations.
A function of the Ethics Committee of the Pennsylvania Conference of State Trial Judges (''the Committee'') is to provide guidance regarding ethical concerns to judicial officers subject to the Code of Judicial Conduct. The Code of Judicial Conduct that became effective on July 1, 2014, addressed, specifically, a judge's affiliation with organizations that discriminate invidiously on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation. The Committee issues this Formal Advisory Opinion to assist judges on a matter of general importance to judicial officers subject to the Code. This Formal Advisory Opinion is general in nature. It does not address a particular entity or group of persons, and is not in response to a specific request for an advisory opinion from a judicial officer. Therefore, the ''rule of reliance'' set forth in Preamble (8) of the new Code does not apply to this Formal Advisory Opinion.1
The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers and judicial candidates subject to the Code of Judicial Conduct. Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.
I.
Prior to July 1, 2014, the Code of Judicial Conduct then in effect simply encouraged judges to promote ''public confidence in the integrity and impartiality of the judiciary'' and permitted judges to ''participate in civic and charitable activities that do not reflect adversely upon their impartiality. . . .''2 It did not specifically address membership in any organization or the use of its facilities.
However, the new Code, which became effective on July 1, 2014, addresses, specifically, a judge's affiliation with organizations that discriminate invidiously on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation. Rule 3.6 of the Code provides:
Affiliation with Discriminatory Organizations.(A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation.(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A Judge's attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization's practices.And Comment (3) to the Rule states:
When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.II.
A. The ''Organization''
The Rule does not purport to reach informal, social groups. It is directed to an affiliation with a discriminatory ''organization.'' Nor does the Code define ''organization.'' Whether a particular group of persons or entity is an ''organization'' under the Rule may depend upon its formal level of structure. For example, whether it has by-laws, officers, or a mission statement; whether it is part of a hierarchy; and whether its membership is consistent and how they are added or replaced may be relevant factors in determining whether the group or entity is an ''organization.''
B. Discrimination
Use of the word ''discrimination'' often generates some confusion. As Robert K. Fullinwider wrote in The Reverse Discrimination Controversy (1980), at pp. 11-12:
The dictionary sense of 'discrimination' is neutral while the current political use of the term is frequently non-neutral, pejorative. With both a neutral and a non-neutral use of the word having currency, the opportunity for confusion in arguments about racial discrimination is enormously multiplied. For some, it may be enough that a practice is called discriminatory for them to judge it wrong. Others may be mystified that the first group condemns the practice without further argument or inquiry. Many may be led to the false sense that they have actually made a moral argument by showing that the practice discriminates (distinguishes in favor or against). The temptation is to move from 'X discriminates' to 'X distinguishes in favor of or against' to 'X is wrong' without being aware of the equivocation involved.''Discrimination'' simply means differentiation. Rule 3.6 requires a determination of whether any differentiation, i.e. separate treatment, is based on any of the following classifications: race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation. Those classifications are referred to here as the ''protected classifications.''
The Rule pertains to any practice of the organization that discriminates, or treats one differently, on the basis of any of the protected classifications. Separate treatment can take many forms, e.g. whether one can become or becomes a member of the organization, whether one is afforded a different class of membership within the organization, whether one is afforded access to the same facilities or other privileges of the organization, whether one can become an officer or director of the organization, etc. Any treatment that is different is discrimination, and the Rule addresses those practices that differentiate on the basis of any one of the protected classifications. It does not mean individuals who are members of a protected classification are entitled to preferential treatment; it means they are not to be treated differently because of their race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation.
C. Invidious
Not all discrimination is unlawful, unethical or actionable under the Code. The Rule addresses discrimination that is ''invidious.'' The term ''invidious'' is not defined in the Code. Black's Law Dictionary (7th ed.) defines ''invidious discrimination'' as ''[d]iscrimination that is offensive or objectionable, esp. because it involves prejudice or stereotyping.'' Definitions in other dictionaries include treating a class of persons unequally in a manner that is malicious, hostile or damaging; stigmatizing persons as inferior, odious or otherwise socially unacceptable; or in a way that is likely to arouse or incur resentment or anger. The court in Farber v. City of Paterson, 440 F.3d 131 (3d Cir. 2006), found discrimination invidious when the distinction is motivated by immutable characteristics which have no relationship to ability to perform or contribute to society.
Whether discrimination is ''invidious'' is a complex question that depends upon a variety of factors. Comment (2) to the Rule states:
[a]n organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of . . . [any of the protected classifications] persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization's current membership rolls, but rather, depends upon how the organization selects its members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.Other factors may include the history or purpose of the organization, whether the practices of the organization have a rational basis toward a legitimate purpose, and whether such practices are narrowly tailored to further that legitimate purpose. In short, the focus should be on the legitimacy of the distinguishing criteria employed to accomplish the organization's stated goals and interests, as opposed to stigmatizing or denigrating those who may be affected.
III.
The Committee recognizes the existence of competing interests at play. There is the ''expressive associational right'' of an organization to exclude persons whose views may impair the ability of the group to express its views. There is the freedom of individuals to associate, which presupposes the freedom not to associate. There is the state's interest in eliminating discrimination in education, employment, housing, public accommodations, etc. And there is the Supreme Court's interest in having a ''fair, honorable and impartial judiciary'' as ''indispensable to our system of justice,'' by requiring judges to ''avoid [ ] both impropriety and the appearance of impropriety in their professional and personal lives'' by conducting themselves ''in a manner that garners the highest level of public confidence in their independence, fairness, impartiality, integrity, and competence.''3
The overarching purpose, or rationale, for Rule 3.6 is stated in Comment (1) to the Rule:
A judge's public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired.This reference to the appearance of impropriety and the public's confidence in the integrity and impartiality of the judiciary relates back to Canon 1 and Rule 1.2 of the Code.
Canon 1 provides:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.Rule 1.2 provides:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and appearance of impropriety.In conducting any analysis, a judge must always be mindful of Canon 1 and Rule 1.2.4
In going through this analysis and applying these various factors, a judge must thoroughly investigate the history and purposes of the organization and fully understand the current policies and practices which are discriminatory. Also for a judge's consideration are the role the local chapter, council, branch, lodge, agency, etc., plays in developing and implementing or enforcing those policies and practices, and the nature of the organization's activities locally and in the broader geographic area where it operates.
Therefore, a judge must assess how the members of the public and the community which the judge serves perceive the organization and its policies and practices. A judge must determine whether membership would create in reasonable minds a perception that the judge violated the code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge. A judge should consider whether the perception of ''reasonable minds'' in the geographic area served by the judge might vary from that of ''reasonable minds'' in other areas of Pennsylvania, and whether or not that could, or should, make a difference.
In addition to these comments, appellate courts may provide a source of information on whether membership limitations are constitutionally permitted or prohibited. See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (organization engaging in qualified right of ''expressive association'' not required to accept members who may impair organization's ability to advocate for its viewpoint). However, a judge must be aware that consideration of a constitutional challenge alone does not end the analysis under the Code. The mere fact the organization may have the constitutional right to discriminate does not necessarily mean a judge may be a member of it. In promulgating Rule 3.6, the Supreme Court is advancing its interests in trying to ensure a fair and impartial judiciary in which all citizens can have confidence. As the United States Supreme Court said in Dale:
. . . the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden ''by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.''Id., 530 U.S. at 648. The advisory opinions of ethics committees of other states on the particular subject may also assist the judge, but they, of course, are not binding on our Supreme Court or the Committee.
Ultimately, a judge must be guided by the underlying purposes of Rule 3.6 that membership in an organization by a judge must not give rise to the appearance of impropriety thus diminishing public confidence in the integrity and impartiality of the judiciary, nor must it create a perception that the judge's impartiality is impaired. And, a judge should be mindful of the admonition of Rule 3.1(C) that a judge shall not ''participate in activities that would reasonably appear to undermine the judge's independence, integrity or impartiality.''
While the Committee acknowledges judges would like definitive answers to their questions as to whether they may or may not belong to particular organizations, the Committee is unable to do so. The Committee does not possess the resources to perform the kind of investigation that would be required to decide that issue properly among the myriad of organizations and almost infinite subchapters to which our judges belong or to engage in the type of balancing between the competing interests at play. Each judge must decide this issue on the relevant facts being mindful of the various interests at play.
This Formal Advisory Opinion is intended to provide judicial officers subject to the Code of Judicial Conduct with broad guidance regarding one of the Committee's most difficult areas of inquiry. Judicial officers are reminded that to enjoy the rule of reliance on the Committee's advice, or if they have a question concerning the application of these guidelines, they should make a written request for advice from a member of the Committee tailored to the particular situation confronted. The Code provides that although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed.
[Pa.B. Doc. No. 15-1404. Filed for public inspection July 31, 2015, 9:00 a.m.] _______
1 Preamble (8) states:
2 Canons 2 A and 5 B of the pre-July 1, 2014, Code of Judicial Conduct.
3 Code of Judicial Conduct, Preamble (2) and (3).
4 Note, Comment (4) to the Rule provides that ''[a] judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.''
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