This panel comprised five members of the seven-member 1

Committee as required by RULES FOR JUDICIAL-CONDUCT AND JUDICIALDISABILITY PROCEEDINGS 21(c). One member was disqualified because he

was a judge within the Sixth Circuit. Id. Another judge was

recused.

The Committee has determined that Judge Paine’s name will 2

be disclosed in this Opinion. 

1

COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

___________

C.C.D. No. 11-01

___________

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

___________

PROCEEDING IN REVIEW OF THE MEMORANDUM OPINION

AND ORDER OF THE JUDICIAL COUNCIL OF

THE SIXTH CIRCUIT J.C. No. 06-08-90031

___________

AMENDED

MEMORANDUM OF DECISION

___________

(Filed December 1, 2011)

Present: Judges John M. Walker, Jr., Chair, Edith Brown Clement,

David M. Ebel, James E. Gritzner, Thomas F. Hogan1

This matter is before the Judicial Conduct and Disability

Committee on the complainant’s petition for review of an April 8,

2011 order of the Sixth Circuit Judicial Council dismissing a

complaint that she filed under the Judicial Conduct and

Disability Act, 28 U.S.C. §§ 351-64 (the “Act”). The complaint

alleges that Judge George C. Paine, II, Chief Judge of the 2
There is one exception to this rule (not relevant here) for 3

Board members who transition from Resident to Honorary Resident

status.

2

United States Bankruptcy Court for the Middle District of

Tennessee, has committed misconduct by holding membership in an

organization that practices invidious discrimination on the bases

of race and sex. The Sixth Circuit Judicial Council, citing

Judge Paine’s efforts to change the practices of the

organization, found no misconduct. We disagree and conclude that

Judge Paine’s club membership violates Canons 2A and 2C of the

Code of Conduct for United States Judges and constitutes

misconduct under the Act.

BACKGROUND

A. Facts

Belle Meade Country Club (“Belle Meade” or the “Club”) is a

110 year-old private social club located in Nashville, Tennessee.

The Club’s Constitution sets forth six membership categories:

Resident, Non-resident, Lady, Associate Resident, Ministers of

Gospel, and Honorary Resident. Management of the Club is vested

exclusively in Resident Members, who alone have the right to

vote, hold office, and propose new members. To become a member, 3

a candidate must be proposed by two Resident Members and

unanimously approved by the Club’s Board of Directors and

Membership Committee. Judge Paine has been a Resident Member of

Belle Meade since 1978.
As of 2007, the Club had more than 1,100 total members of 4

all categories.

The pendency period for accepted applications appears to 5

have varied historically. There is evidence that some

applications were approved after eighteen months, whereas another

had been pending for eleven years before acceptance.

3

Belle Meade has never had and presently has no female

Resident Members – all female members are Lady Members. Lady

Members, who pay lower fees than Resident Members, are defined as

“unmarried females” who “have attained 18 years of age,” and

historically have been widows of Resident, Honorary, Associate,

and Non-resident Members. At any time there can be no more than

175 Lady Members. Although the Constitution and Bylaws do not 4

prohibit women from becoming Resident Members, there is

conflicting evidence as to whether women unofficially are barred

from such membership. Two members have stated (one under oath)

that women are so barred. Others have testified that there is no

such prohibition. Additionally, there is evidence that at least

two women have been approached about seeking Resident Membership

but have declined. 

Nor does Belle Meade have any African American Resident

Members but, as with women, there is no express prohibition. The

Club has one African American Non-resident Member who lives and

works in Atlanta, Georgia, more than two hundred miles outside of

Nashville. Membership proposals for two African American

Resident Member candidates, one of whom Judge Paine sponsored,

have been pending for at least four years. Several African 5
4

Americans have declined requests to seek Resident Member status.

To his considerable credit, Judge Paine wrote a strong

letter in August 1990 to the Club’s Board of Directors in

response to other letters “received [by the Board] in regards to

the perceived exclusionary policies of Belle Meade.” Judge Paine

considered it “long overdue that the Club have Jewish and black

associate and resident members” and thought it “patently

preposterous that there are not persons in these racial and

religious groups who would not be excellent participating members

of the Club.” Given his impression that adverse publicity could

diminish the value of Club membership, Judge Paine suggested that

the Board members’ fiduciary duty required that they “protect[]

[the Club’s] interests on this issue.”

B. Procedural History

This complaint, filed in May 2008, alleges that Judge

Paine’s membership in Belle Meade constitutes judicial

misconduct. In particular, it alleges violations of Canons 2A

and 2C of the Code of Conduct for United States Judges. Canon 2A

states that “[a] judge should respect and comply with the law and

should act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary.” 

Under Canon 2C, “[a] judge should not hold membership in any

organization that practices invidious discrimination on the basis

of race, sex, religion, or national origin.”

The complaint initially was reviewed by then-Chief Judge
At the end of its report, the Special Committee noted 6

potentially relevant evidence that it had not obtained in its

investigation. This evidence included Belle Meade's membership

records and testimony from a Resident Member and former President

of the Club’s Board who had been quoted in the Nashville press as

stating that women cannot become Resident Members. The Special

Committee justified its failure to subpoena this testimony on the

basis that, even if this member testified that women could not

become Resident Members, there was credible testimony to the

contrary from a current member of Belle Meade's Membership

Committee. With respect to the Club's membership records, the

Special Committee explained that they "would likely have limited

utility." The Special Committee also did not obtain Judge

Paine’s August 1990 letter to the Board and chose, instead, to

rely on the judge’s recollection of that letter. It concluded

that "there is likely little to be gained by additional

investigation and a final decision can be reached that is

5

Boggs of the Sixth Circuit Court of Appeals, as required by 28

U.S.C. § 352. After conducting a limited investigation, Judge

Boggs dismissed the complaint for failure to make an adequate

showing of misconduct.

The complainant petitioned the Sixth Circuit Judicial

Council for review of Judge Boggs’s dismissal. The Council,

under Chief Judge Batchelder, tasked its Standing Special

Committee with investigating the complaint. With the help of

outside counsel, the Special Committee interviewed the

complainant, as well as a Mr. Alex Friedmann, who apparently has

assisted the complainant in the pursuit of these charges, and

several members of Belle Meade including Judge Paine. Based on

its investigation, the Special Committee made findings of fact

(most of which are summarized above) and concluded that Judge

Paine’s membership at Belle Meade does not violate the Code of

Conduct.6
rational[] and well founded on the evidence" already obtained.

That the Special Committee declined to seek all material 7

evidence and appeared to resolve ambiguities in the record

6

The Sixth Circuit Judicial Council, by a vote of 10-8,

adopted the Special Committee’s report and agreed with its

ultimate conclusion. The majority determined, among other

things, that Judge Paine’s “long and sincere efforts to integrate

the club in question . . . preclude a finding that he has engaged

in misconduct.” 

The complainant appealed.

DISCUSSION 

We defer to the findings of the Sixth Circuit Judicial

Council and overturn them only if clearly erroneous. See In re

Complaint of Judicial Misconduct, 640 F.3d 354, 356 (U.S. Jud.

Conf. Apr. 12, 2010) (citing In re Memorandum of Decision, 517

F.3d 563, 569 (U.S. Jud. Conf. Jan. 14, 2008)).

On appeal, the complainant argues that (1) the decision of

the Sixth Circuit Judicial Council was against the weight of the

evidence, (2) the decision inappropriately relied on factors

other than the Club’s membership practices with respect to race

and sex, and (3) the Special Committee’s investigation was

insufficient. We agree with the complainant’s first two

arguments and, as to the third, we conclude that, although the

Special Committee might have engaged in a more thorough

investigation, the evidence in the record is sufficient to 7
against the complainant suggests that it did not conduct the sort

of searching investigation appropriate in all the circumstances.

Judicial Conference of the United States, 8

http://www.uscourts.gov/FederalCourts/JudicialConference.aspx

(last visited Nov. 30, 2011).

7

resolve this matter.

A. Canons 2A and 2C

Congress created the Judicial Conference as “the principal

policy making body concerned with the administration of the U.S.

Courts.” The Judicial Conference, in turn, adopted the Code of 8

Conduct to aid judges and judicial nominees and to “provide

standards of conduct for application in” judicial-conduct and

judicial-disciplinary proceedings brought pursuant to the Act. 

Commentary to Canon 1. The Canons of the Code of Conduct offer

general guidance. “[I]t is not intended that disciplinary action

would be appropriate for every violation of its provisions,”

especially “where reasonable judges might be uncertain as to

whether or not the conduct is proscribed.” Id. “Whether

disciplinary action is appropriate, and the degree of discipline

to be imposed, should be determined through a reasonable

application of the text and should depend on” the particular

circumstances of the infraction. Id.

As noted above, the complaint asserts that Judge Paine’s

membership in Belle Meade runs afoul of Canons 2A and 2C. Canon

2A sets forth the broad command of which Canon 2C is one

instance: “A judge . . . should act at all times in a manner that
See also THE JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMMITTEE,

9

IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980: A REPORT TO

THE CHIEF JUSTICE 147 (2006) (“[T]he fact that a judge’s alleged

8

promotes public confidence in the integrity and impartiality of

the judiciary.” Judges must avoid not only actual impropriety

but the “appearance of impropriety.” Commentary to Canon 2A; see

also 28 U.S.C. § 455(a) (a judge “shall disqualify himself in any

proceeding in which his impartiality might reasonably be

questioned”). This rule is critical — 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. In

other words, “to perform its high function in the best way

‘justice must satisfy the appearance of justice.’” In re

Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt v. United

States, 348 U.S. 11, 14 (1954)); see also Mayberry v.

Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan, J., concurring)

(“[T]he appearance of evenhanded justice . . . is at the core of

due process”).

The judiciary therefore must take every appropriate measure

to instill public confidence in the impartial administration of

justice. For this reason, and especially in view of the

“constant public scrutiny” that “judge[s] must expect,”

Commentary to Canon 2A, members of the judiciary are required to

accept unique and heightened restrictions on their personal lives

that would not pertain to ordinary citizens. Id. Although the 9
conduct occurred off the bench and had nothing to do with the

performance of official duties, absolutely does not mean that the

allegation cannot meet the statutory standard” for cognizable

judicial misconduct).

To our knowledge, Canon 2C has never before been enforced. 10

The initial Code of Conduct, which the Judicial Conference

adopted in 1973, contained no provision or commentary regarding

membership in discriminatory organizations. In 1981, the

Judicial Conference adopted language in Canon 2's commentary

indicating that membership in discriminatory organizations is

improper, but left the ultimate determination of propriety to the

particular judge. Canon 2C and its commentary were adopted in

1992.

9

Code of Conduct does not purport to enumerate every such

restriction, Canon 2C does set forth a mandatory prohibition.

“Membership of a judge in an organization that practices

invidious discrimination gives rise to perceptions that the

judge’s impartiality is impaired.” Commentary to Canon 2C. For

that reason, Canon 2C forbids judges from “hold[ing] membership

in any organization that practices invidious discrimination on

the basis of race, sex, religion, or national origin.”10

Considered in the context of Canon 2A, the invidious

discrimination contemplated by Canon 2C has a specific meaning. 

We are not concerned here only with the sort of discrimination

prohibited by the Civil Rights Act, Title VII, or the

Constitution. Instead, like Canon 2A, Canon 2C also addresses

appearances. Quite simply, judges may not be members of

organizations that would reasonably appear to the public to

discriminate in their membership practices on any of the grounds

listed in Canon 2C.
10

“[A]n organization is generally said to discriminate

invidiously if it arbitrarily excludes from membership on the

basis of race, religion, sex, or national origin persons who

would otherwise be admitted to membership.” Commentary to Canon

2C. Because organizations rarely advertise discriminatory

practices, though, “[w]hether an organization practices invidious

discrimination” for purposes of Canon 2C “is often a complex

question.” Id. Typically, the inquiry is fact-specific and the

answer depends on such factors as the organization’s selection

criteria, goals, size, and geographic location. A strong

presumption of invidious discrimination arises where “reasonable

persons with knowledge of all the relevant circumstances would

expect that the membership would be diverse in the absence of”

such discrimination, id., but the membership is not diverse.

B. The Weight of the Evidence

Applying the standards discussed above, 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. Nashville, Tennessee, is one of the major

cosmopolitan cities of the Southern United States. In

particular, according to 2010 Census data, it boasts a 28%

African American population and its female population is over

50%. Although few organizations perfectly mirror the population

trends of their surrounding locales, a member of the public would
See, e.g., Noelle Mashburn, Middle Tennessee’s Most 11

Prominent Women ‘Go Red’ For Children’s Health, EXAMINER.COM, Nov.

10, 2010, http://www.examiner.com/fitness-trends-in-nashville/

middle-tennesse-s-most-prominent-women-go-red-for-children-s-heal

th (last visited Nov. 30, 2011); Drew Ruble, 50 Most Powerful,

BUSINESS TENNESSEE, Oct. 2004, http://businesstn.com/content/50-

most-powerful (last visited Nov. 30, 2011).

For purposes of Canon 2C, it is irrelevant that Lady 12

Members pay lower fees than Resident Members. Indeed, insofar as

Lady Membership is preferable to other forms of membership, the

11

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,” id. — 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. The

organization is a social club for prominent persons living in and

around the Nashville area. 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.11

Moreover, although evidence of purposeful discrimination is

not a requirement of Canon 2C (and, indeed, is expected to be

rare), there is some such evidence in this case. Lady Members

have no power to control, manage, vote, or hold office in the

Club, and are limited in number to fewer than one sixth of the

Club’s total approximate membership. Although there appears to 12
exclusion of men from that category arguably constitutes another

form of gender discrimination under the Code.

12

be no explicit prohibition on women becoming Resident Members –

and there is some evidence that women are eligible (and have been

sought out) for such membership – the remaining evidence

concerning Lady Membership bolsters the already justifiable

public perception of invidious gender discrimination. Indeed,

Belle Meade’s Bylaws give the distinct impression that the Club

is structured for “members” who are male, predominantly if not

exclusively:

Privileges of the Club and its facilities are extended to

wives of members and unmarried children of members who are

25 years of age and under. In addition, the following,

provided each resides in the household of a member, shall

also be entitled to the privileges of the Club and its

facilities: fathers and fathers-in-law who are over 70 years

of age, widowed mothers and widowed mothers-in-law, and

unmarried daughters who are over 25 years of age. (emphasis

added).

There is also considerable evidence of intentional

discrimination with respect to African Americans. Judge Paine

has tried for more than two decades to persuade the Club to open

its membership to African Americans, even going so far as to put

forward his own candidate, without result. It is difficult for

us – and, we expect, the public – to conjure a benign explanation

for the Club’s failure to integrate its Resident Membership in

the face of Judge Paine’s endeavors and the sentiment expressed

in his 1990 letter. 

Our impression that the public justifiably perceives that
See, e.g., Adam Liptak, Weighing the Place of a Judge in a 13

Club of 600 White Men, N.Y. TIMES, May 17, 2011, at A16.

See, e.g., Letter from Susan Scanlan, Chair of National 14

Council of Women’s Organizations, to Senator Patrick Leahy,

Chairman of Senate Committee on the Judiciary (Mar. 18, 2008)

(“If [former judicial nominee] 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.”).

13

Belle Meade invidiously discriminates is not based solely on

speculation or surmise. Rather, there is tangible support for

this conclusion in the public arena. 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.13

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. Our

analysis does not depend upon this publicity and in no sense is

our conclusion in this matter a response to perceived public

pressure. But the publicity over judges’ membership in Belle

Meade corroborates our independent conclusion that Judge Paine’s

membership in the Club creates an appearance of impropriety that

we cannot condone.14

C. Extraneous Factors Relied upon by the Special Committee and

Sixth Circuit Judicial Council

In reaching a contrary conclusion, the Special Committee and

Sixth Circuit Judicial Council relied upon two factors that, in

our view, are not relevant to consideration of this complaint.
Although the Sixth Circuit Judicial Council did not 15

duplicate this reasoning in its majority opinion, it “adopted the

Committee’s Findings, Analysis and Recommendation.”

14

First, the Special Committee emphasized that “[t]here are

gay, Jewish, and other non-African American persons of color who

are Resident members of” Belle Meade. It reasoned that these

members’ “presence on the membership rolls contradicts a belief

that the Country Club is arbitrarily excluding members on the

basis of race, religion, or national origin.” The question for 15

purposes of Canon 2C, though, is whether an organization

invidiously discriminates on one – not all – of the listed bases. 

That Belle Meade does not discriminate against members of certain

sexual-orientation, religious, or ethnic groups therefore says

nothing about whether the Club discriminates specifically against

women or African Americans.

Second, both the Special Committee and the Sixth Circuit

Judicial Council relied on Judge Paine’s “long and sincere

efforts to integrate” Belle Meade in concluding that he has not

committed judicial misconduct. Admirable though we find Judge

Paine’s efforts have been, however, they do not change the

analysis under Canon 2C. The ultimate question we face is not

whether Judge Paine personally practices or participates in

invidious discrimination or whether he tried to change those

practices at Belle Meade. Under the Code of Conduct, a judge

gives the appearance of impropriety and therefore violates Canons

2A and 2C simply by being a member of an organization that
15

invidiously discriminates. This is a bright-line rule without a

subjective component.

D. Guidance on Complying with Canon 2C

Thus, judges must exercise vigilance in complying with Canon

2C. 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,” Commentary to Canon 2A, but the membership

nevertheless is not diverse, the judge should err on the side of

caution and decline membership. Although such a restriction

“might be viewed as burdensome by the ordinary citizen,” it is

one that judges should accept “freely and willingly.” Id.

The two-year remediation provision set forth in the

Commentary to Canon 2C qualifies the above admonition to a

limited extent:

When a judge determines that an organization to which the

judge belongs engages in invidious discrimination that

would preclude membership under Canon 2C or under Canons

2 and 2A, the judge is permitted, in lieu of resigning,

to make immediate and continuous efforts to have the

organization discontinue its invidiously discriminatory

practices. If the organization fails to discontinue its

invidiously discriminatory practices as promptly as

possible (and in all events within two years of the
16

judge’s first learning of the practices), the judge

should resign immediately from the organization.

This does not mean, of course, that a judge may join any

discriminatory group whatsoever as long as he or she resigns

within two years. Instead, 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.

In any event, this remediation provision does not apply

here. The Commentary’s two-year parameter is clear. Judge

Paine, however, was aware of the Club’s “perceived exclusionary

policies” at least 21 years ago, when he urged the Club to

diversify. Any two-year remediation period came and went long

ago. Canon 2C plainly does not permit a judge to belong to an

organization that invidiously discriminates for as long as he or

she keeps trying to change its practices, however long that may

be.

* * *

The Sixth Circuit Judicial Council opined that, “although

reasonable minds could — and indeed do — differ on the question

of whether th[e] Club engages in invidious discrimination, the

specific issue [here] is whether [Judge Paine] has committed
17

judicial misconduct.” We disagree. Whether an organization to

which a judge belongs practices invidious discrimination and

whether that judge has committed judicial misconduct by being a

member of the organization are the same question. Such

membership by a sitting judge necessarily has “a prejudicial

effect on the administration of the business of the courts,

including a substantial and widespread lowering of public

confidence in the courts among reasonable people.” RULES FOR

JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS 3(h)(2).

CONCLUSION

For the reasons discussed above, we conclude that, on the

present record, 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. Therefore, Judge Paine’s membership in Belle Meade

while sitting as a judge violates Canons 2A and 2C and thus

constitutes misconduct under the Act.

Judge Paine has announced his forthcoming retirement at

the end of 2011. For that reason, and because this decision

represents the first enforcement of Canon 2C, there is no cause

for us at this point to order Judge Paine’s removal from office

or to take disciplinary action beyond the public reprimand that

this opinion represents. Should Judge Paine change his

retirement plans, however, we would be required to revisit this
18

conclusion.

Finally, we note with unreserved sincerity that our

decision is not intended to impugn Judge Paine’s good faith, of

which there is much evidence. He tried to change the Club’s

discriminatory practices by writing a letter challenging those

practices and by promoting the cause of at least one African

American applicant for Resident Membership. Moreover, the

bright-line rule that we have announced today that pertains to

Canon 2C is the first such pronouncement on the Canon by this

Committee or any Judicial Council.

More generally, Judge Paine has dedicated much of his

life to public service: first in the military, where he served as

an officer in the Army and was awarded the Purple Heart and,

since 1981, as an able bankruptcy judge for the Middle District

of Tennessee. He has also made a significant contribution as a

volunteer judge in promoting the Rule of Law in newly democratic

countries. Thus, in our view, Judge Paine is retiring from the

judiciary with his reputation for devoted service to his country

intact.

Respectfully Submitted,

Hon. John M. Walker, Jr., Chair

Hon. Edith Brown Clement

Hon. David M. Ebel

Hon. James E. Gritzner

Hon. Thomas F. Hogan