On April 8, 2011, on a vote of 10 to 8, the Judicial Council of the Sixth Circuit Court of Appeals adopted the recommendation of the Council’s Standing Investigating Committee and dismissed a complaint filed against a federal judge in Tennessee accused of being a member of a private country club that discriminates on the basis of race and gender.

Of the eight Council members who voted to uphold the complaint, four wrote dissenting opinions in which they noted “the discriminatory admission practices of the Club regarding women and African Americans,” cited “abundant evidence of invidious discrimination,” and remarked upon the “lack of [racial and gender] diversity in the composition of the membership” of the Standing Investigating Committee itself.

The dissent by Sixth Circuit Judge Eric L. Clay concluded, “It is deeply distressing, in this day and age, that a Judicial Council of federal judges is willing to render a finding of no discrimination or the appearance thereof in the face of a record rife with evidence of discrimination. It is also deeply distressing for some of us on the Judicial Council to be placed in the position of having to resort to dissents which call attention to our colleagues’ apparent unwillingness to enforce the most fundamental strictures against federal judges’ countenancing discrimination or the appearance of discrimination by their own behavior.”
There is more to this rare look inside the secretive federal judicial disciplinary process, but first some background.

In 2008, PLN associate editor Alex Friedmann coordinated a successful opposition campaign against Gus Puryear, then-general counsel of Corrections Corporation of America (CCA), the nation’s largest for-profit prison firm. Puryear had been nominated by President George W. Bush for a federal judgeship in the Middle District of Tennessee, where CCA is headquartered. [See: PLN, March 2009, p.1].

During the opposition campaign it was revealed that Puryear (as well as CCA board chairman John D. Ferguson) was a member of the prestigious Belle Meade Country Club – a longstanding institution among Nashville’s upper crust that caters to the wealthy and privileged. The Club is so exclusive that not even its website is accessible by the general public.

In many ways the Club is a throwback to the Old South; its main building is styled as a stately plantation mansion, with sprawling grounds that sport a golf course instead of cotton fields. The racial composition is almost the same as in the antebellum days, too – of the Club’s approximately 1,100 members, only one is black. And that member, attorney Richard Sinkfield, who joined in 1994 (30 years after the passage of the Civil Rights Act), resides 250 miles away in Atlanta and thus rarely graces the Club with his dark-complected presence.

As stated in PLN’s article on the Puryear opposition campaign, it’s “[n]ot that there aren’t any blacks at the Club; it’s just that they mainly cut the grass, serve the food and clean the facilities.” A portrait of Confederate General Robert E. Lee – the patron saint of Southerners who bemoan the loss of the War of Northern Aggression – graces the Club’s foyer.

Further, although “unmarried females” can join the Club as quaintly-termed “Lady Members,” they do not have voting privileges. Nor can Mr. Sinkfield vote on Club matters, as he is a Non-resident Member. Only Resident Members, who pay $50,000 in membership and entrance fees, plus monthly dues, are eligible to vote and hold office in the Club (Lady Members pay a $10,000 entrance fee plus lower monthly dues).

Of the Club’s approximately 600 Resident Members, all are male and none are black – a statistical unlikelihood that has remained unchanged since the Club was founded in 1901.
There is no formal membership policy that prohibits blacks or women from joining the Club as Resident Members, but none have. That may have something to do with the fact that new members must be proposed and recommended by the existing all-male, non-black Resident Members. As of 2008, the Club’s Constitution, By-laws and membership handbook did not contain a non-discrimination policy or statement.

During the Puryear opposition campaign, three women’s rights groups – the National Organization for Women (NOW), the National Council of Women’s Organizations and the Women’s Equal Rights Legal Defense and Education Fund – wrote letters criticizing the Club’s treatment of women members; e.g., relegating women to a separate-and-unequal membership class without voting privileges.

“If Mr. Puryear is appointed to the federal bench, it is difficult for us to conceive how women defendants and plaintiffs, or indeed women attorneys, could appear before him and expect to receive impartial and equal consideration given Mr. Puryear’s past membership in the Belle Meade Country Club...,” wrote Susan Scanlan, Chair of the National Council of Women’s Organizations.

Additional research revealed that three sitting federal judges were Club members: U.S. Bankruptcy Court Judge George C. Paine II, U.S. District Court Judge Robert L. Echols (now retired) and Sixth Circuit Court of Appeals Judge Gilbert S. Merritt (who later took Honorary Member status at the Club). Judge Merritt had acknowledged in a March 2008 Nashville Scene article that “It’s true women [Club members] do not have a vote, and it’s based on tradition.”

Believing that membership in the Belle Meade Country Club was contrary to Canon 2C of the Code of Conduct for federal judges, which states “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin,” a formal complaint was filed against Judge Paine on May 14, 2008 by a member of NOW, who asked not to be named.

The complaint cited the disparities in racial and gender composition among the Club’s Resident Members, and contended that “As the all-male and all-white resident members serve as gatekeepers for new members, the fact that no women or black members have ever been afforded resident member status that affords voting privileges is indicative of intentional discrimination.”

Further, the complaint noted “it would be difficult to find another club with membership practices that result in the extreme level of racial and gender discrimination and disparity as found at the Belle Meade Country Club.”

The complaint, filed with the Judicial Council of the Sixth Circuit, was dismissed by then-Chief Judge Danny J. Boggs more than a year later on June 10, 2009, based on a cursory “limited investigation.” An appeal was filed which stated, among other observations, that “were it not for the single black member that the Club has admitted since 1901, the Club would have the same racial composition as the Ku Klux Klan and the Aryan Nations, both white supremacist groups.”

Judge Boggs’ decision was reversed by the Judicial Council, which then referred the complaint to the Standing Investigating Committee (also referred to as the Special Investigating Committee). The Committee retained outside counsel and conducted interviews with the NOW complainant; with PLN associate editor Alex Friedmann; with Judge Paine; with Club historian and Honorary Member Ridley Wills II; with Circuit Judge and honorary Club member Gilbert S. Merritt; and with Club attorney, Resident Member and former Club board member Robert E. “Bob” Boston.

Former Club president Ed Nelson, who had previously said in a Nashville Scene article that women could not become Resident Members, refused to be interviewed. The Committee declined to subpoena him or to subpoena the Club’s membership records.

On September 22, 2010, the Committee submitted its Findings of Fact, Analysis and Recommendations to the Judicial Council. The Committee acknowledged that only Resident Members, “to the exclusion of all other classes of membership, shall have the right to control, manage, vote and hold office in the Club...,” and found it was “undisputed” that the Club’s Resident Members do not include any black or women members. Judge Paine had been a Resident Member at the Club since 1978.

However, the Standing Investigating Committee also found that women and black candidates reportedly had been approached to seek Resident Member status but had declined. Further, some white candidates for Club membership had been rejected, the Club reportedly had Jewish and gay members, and no formal Club policy prohibited women or minorities from becoming Resident Members. It was suggested, based on comments by the Club members who were interviewed, that women chose to be Lady Members rather than Resident Members “because of the cost savings associated with that class of membership.”

The Committee noted that two black candidates had pending proposals for Resident Member status – attorney David Ewing and former Nashville Chamber of Commerce chairman Darrell S. Freeman. While it was also noted that their proposals had “been pending for approximately four or five years,” the Committee stated that was “not out of the ordinary.” (The lengthy delay in approving Ewing as a Club member may be partly due to his wife, Alice, who authored the bestseller The Wind Done Gone, a parody of Gone With the Wind – a book held in reverence by many Southerners though it has been criticized by others due to its perceived racism and benign portrayal of the Ku Klux Klan).

Additionally, the Committee lauded Judge Paine for being “active in promoting African Americans for Resident member status” at the Club, including co-sponsoring Darrell Freeman’s proposed membership.

Based upon these findings the Standing Investigating Committee recommended that the complaint be dismissed, as it had not been proven that the Belle Meade Country Club practices “invidious discrimination” within the meaning of Canon 2C of the Code of Conduct. The commentary for Canon 2C “cautions against ‘a mere examination of an organization’s current membership rolls’ or a conclusion that there is invidious discrimination based on the ‘mere absence of diverse membership.’”

The Committee concluded that 
“[t]here are any number of reasons why there are no women or African American Resident members of the Country Club,” and said it could not “automatically assume discrimination as the reason for the lack of women and African American Resident members....”

However, in recommending dismissal of the complaint against Judge Paine, the Committee took care to state that its findings were “not intended to applaud or congratulate the Country Club on its membership practices or its efforts to diversify the membership of the Club, adding, “[t]he Committee does not believe that the Country Club is doing all that is possible and necessary to add diversity to the Club’s membership, particularly Resident membership.”

On April 8, 2011, on a vote of 10 to 8 with one voting member not present, the Judicial Council of the Sixth Circuit adopted the recommendation of the Standing Investigating Committee and dismissed the complaint.

The Council’s memorandum decision, authored by Chief Judge Alice M. Batchelder (who, ironically, if she joined the Club as a Lady Member, would not be allowed to vote on Club business), acknowledged that “reasonable minds could – and indeed do – differ on the question of whether this Club engages in invidious discrimination....” However, the majority held that the evidence presented did not support a finding that Judge Paine had committed judicial misconduct by violating Canon 2C of the Code of Conduct.

Four of the Judicial Council members wrote dissenting opinions in which they disagreed, vehemently in some cases, with the majority’s decision to dismiss the complaint.

U.S. District Court Judge Solomon Oliver, Jr. wrote in his dissent that other dissenting Council members had “compellingly demonstrated” that the Belle Meade Country Club “engaged in invidious discrimination.” As such, Judge Paine “should have resigned his membership when it became clear long ago that his efforts to change the Club’s discriminatory practices against women and minorities were having no effect.”

Sixth Circuit Judge Eric L. Clay wrote the most detailed (and scathing) dissent, stating at the outset that the Standing Investigating Committee’s findings were “more notable for what they do not say, and for the lack of evidentiary support for the conclusions they reach, than for what they do say.”

“The majority of the Judicial Council would have us accept the Club’s self-serving representation that the separate and subordinate membership status for women does not indicate gender bias, notwithstanding the tacit or express admissions by some Club members that women have never been considered for ‘Resident’ membership and have never been voting Resident members,” Judge Clay continued.

Citing “abundant evidence” of “blatant” invidious discrimination, he credited the candid testimony of honorary Club member Ridley Wills II, who had admitted in his interview that the Club “discriminates in its membership practices.”

On the other hand, Judge Clay criticized the testimony of Club attorney and Resident Member Bob Boston. Although the Standing Investigating Committee had noted that Boston’s role in the proceedings was “quite involved” and that he had “a wealth of knowledge of the Club’s membership and membership practices,” Judge Clay wrote that Boston had “present[ed] selective information favorable to the Club’s position while denying that the Club is guilty of discrimination.” Boston also had an “obvious interest in the outcome of this matter ...[,] actual or potential conflicts of interest,” and was at times evasive.

Judge Clay described as “ludicrous” the Judicial Council’s failure to find invidious discrimination at the Club on the basis that no black prospective members had been rejected, noting “the record demonstrates that the Club has avoided turning down the applications of qualified African American applicants, who have been properly sponsored for membership, by permitting their applications to remain pending for six years or longer without acting on them.”

Notably, Judge Clay referenced the commentary to Canon 2C, which “states that if the organization fails to discontinue its discriminatory practices as promptly as possible, and in all events within two years of the judge first learning of the practices, the judge should resign immediately from the organization.” In dismissing the complaint, the Judicial Council simply ignored the two-year requirement specified in the commentary. Judge Paine has been a member of the Belle Meade Country Club for over three decades.

“The decision-making engaged in by the Judicial Council’s majority with respect to this matter has been deeply troubling,” Judge Clay wrote. “Although this matter involves credible allegations of a federal judge having maintained membership for decades in a country club that practices invidious racial and gender discrimination ..., the Judicial Council’s Special Investigating Committee has bent over backwards in its investigation to resolve virtually every factual dispute, with little factual basis for doing so, in favor of Judge [Paine] and the offending country club.”

Judge Clay also cited problems with the composition of the Committee itself. “The lack of diversity with respect to the membership of the Committee investigating this matter has resulted in an investigation and a committee report which in the eyes of some will be perceived to lack objectivity and legitimacy,” he stated. “Except for the Chief Judge herself, there were no minorities or women among the judicial members of the Special Investigating Committee appointed by the Chief Judge to investigate the complaint regarding Judge [Paine]’s membership in a club that allegedly discriminates against African Americans and women.”

Accusing Judge Paine of continuing “to embarrass the federal judiciary by creating and perpetuating the appearance of impropriety,” Judge Clay sharply criticized the Committee’s “amateurish” investigation and remarked that it was “not an exaggeration to say that the Special Investigating Committee failed miserably in carrying out its responsibility.”

In a separate dissent, Sixth Circuit Judge Karen Nelson Moore, joined by Chief District Judge Susan J. Dlott, concurred with Judge Clay that there was “persuasive proof of invidious discrimination in membership policies of the country club.” Judge Moore also observed that “[t]he Club relegates women to a separate, lesser class of membership lacking the rights of full resident members,” and “has held in apparently permanent pending status the applications of all African American applicants (save one non-resident member), thereby effectively denying membership to African Americans.”

Lastly, Sixth Circuit Judge R. Guy Cole, Jr. agreed with Judge Clay’s findings that there was “abundant evidence of [Belle Meade’s] invidious discrimination” as well as a “lack of diversity in the composition of the membership of the Special Investigating Committee.”
However, Judge Cole noted that his dissent had more to do with the “membership that [Judge Paine] maintains than the man he is,” calling him a “fair and thoughtful jurist.”
As for the Club, though, Judge Cole stated bluntly, “it seems that mostly white men continue to determine the direction of Belle Meade’s future,” citing the testimony of Ridley Wills II, who “literally wrote the book” on the Belle Meade Country Club.

According to Judge Cole, “the record before this Court paints a picture of Belle Meade as an old boy’s club that considers and admits Caucasian male applicants on a different basis than African-American and female applicants.” He concluded, “We federal judges must sometimes make sacrifices for the honor of the office we hold, and [Judge Paine’s] membership in Belle Meade should have been one of them.”

Although the unflattering comments made by the dissenting Judicial Council members were unexpected, the Council’s decision to dismiss the complaint against Judge Paine was not. Of the 731 complaints filed against federal judges in the Sixth Circuit Court of Appeals from 2003 through September 2010, none resulted in disciplinary action by the Judicial Council. Nor is this unique to the Sixth Circuit.

During that same time period, 7,827 complaints were filed against federal judges nationwide; the vast majority that reached the Judicial Councils were dismissed, with only two resulting in public censures, one resulting in “corrective action taken or [an] intervening event,” three resulting in undesignated “other appropriate actions,” and one district judge being ordered to take action against a magistrate judge. [See also: “Judge Not: Judges Benched for Personal Misconduct,” PLN, Aug. 2009, p.1].

The federal judicial disciplinary system is shrouded in secrecy, with the inner workings of the Judicial Council and Standing Investigating Committee rarely seen by outsiders. There is no oversight of the federal judiciary’s investigation of their own colleagues; i.e., judges judging other judges. Not even the Supreme Court has the authority to review the outcomes of judicial misconduct complaints. (Nor is the Supreme Court itself bound by judicial ethics rules, and when Justices Stephen Breyer and Anthony Kennedy appeared before a House Appropriations subcommittee on April 14, 2011, they said it should stay that way).

Questions about the impartiality and adequacy of the federal judicial disciplinary process are bolstered by the extremely low number of complaints that are sustained and the lengthy amount of time it takes to resolve complaints – three years in the case of the complaint against Judge Paine.

Consider that Judge Paine could have resigned from the Belle Meade Country Club at any time while the complaint against him was pending, which would have mooted the issue of his Club membership. He chose not to do so, apparently believing – correctly – that his judicial peers would ultimately dismiss the complaint no matter how compelling the evidence of racism and sexism in the Club’s membership practices.

The dismissal of the complaint against Judge Paine is being appealed to the Judicial Conference of the United States. A representative of the Belle Meade Country Club, who refused to provide his name, declined to comment. Calls to Club attorney Bob Boston and Judge Paine were not returned.

Sources: Nashville Scene; Belle Meade Country Club member handbook (2007); Judicial Council of the Sixth Circuit memorandum, complaint against Judge Paine, Case No. 06-08-90031 (April 8, 2011); Sixth Circuit Judicial Council’s Standing Investigating Committee report on the complaint against Judge Paine (Sept. 22, 2010); www.uscourts.gov; Nashville City Paper; www.legaltimes.typepad.com

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