To: Interested Parties
From: Doug Kendall, Community Rights Counsel
Date: May 20, 2002
Re: Judge D. Brooks Smith and Spruce Creek Rod & Gun Club
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Summary of Issues Regarding Judge Smith's Membership at Spruce Creek

The single issue that generated the most concern during Judge Brooks Smith's confirmation as a federal district judge in 1988 was Judge Smith's membership in the Spruce Creek Rod and Gun Club. At that time, blatantly sexist remarks made by a Pennsylvania judge to a female attorney had generated a great deal of negative publicity. Members of the Senate Judiciary Committee understandably sought to assure that new appointees to the federal bench did not share these sexist attitudes.

In 1988, Judge Smith stated unequivocally in a letter to then-Chairman Biden that Spruce Creek discriminated against women, and that if he were unable to persuade the club to change its by-laws, "adherence to the Code would require my resignation from the Club." When asked by Senator Howell Heflin how long the process might take, Judge Smith stated that he might have to wait until the Club's next annual board meeting to attempt to change the by-laws, which he indicated would be in April 1989.

Despite this testimony, however, Judge Smith remained a member of the Club for 11 years, until late 1999, when the seat to which he has been nominated was vacated. He now seeks to explain his actions in ways that are inconsistent with the record. In 1988, he said he would resign. Through 1991, he wrote a few letters to members suggesting a change in the by-laws, but making no progress, admitting in 1991 that there was "little chance" of a change in the Club's by-laws and stating that "as a consequence, I will be required to resign my membership." In 1992, the Judicial Conference amended the Code of Conduct to require judges to resign two years after a judge realizes that a club discriminates invidiously. In 1999, he resigned, stating that his continued membership conflicted with "expectations of judicial conduct." And he now claims that the 1992 changes created an exception for "social clubs" that ban women and calls his 1999 resignation "voluntary." His responses are problematic for many reasons.

The Ban on Membership in Discriminatory Clubs Plainly Applies to Spruce Creek Rod and Gun Club

The by-laws of the Spruce Creek Rod and Gun Club deny membership to women. Canon 2C of the Code of Conduct for U.S. Judges states in its Commentary that, "an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of… sex." Spruce Creek arbitrarily bans women from becoming members no matter how accomplished they may be in fishing or hunting.

With 115 members, a historic clubhouse that serves meals and hosts business meetings, and visitors including former Presidents Jimmy Carter and Dwight D. Eisenhower, Spruce Creek is also plainly a place where club members can make and develop contacts that enhance their professional lives. It is precisely the type of club to which the ban was intended to apply.

While the commentary for Canon 2C exempts from coverage "intimate, purely private organizations," this exemption is explicitly defined by reference to the Supreme Court's freedom of association case law. The cited cases, in turn, hold that "the Constitution protects against unjustified government interference with an individual's choice to enter into and maintain certain intimate or private relationships." Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987). The cases make clear that relationships among members of a sizable recreation club like Spruce Creek are "not the kind of intimate or private relations that warrants constitutional protection." Id. at 546 (upholding application of anti-discrimination law to Rotary Clubs with fewer than 20 members). The Court has declared that the Constitution only protects "those relationships, including family relationships, that presuppose 'deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences and beliefs, but also distinctly personal aspects of one's life.'" Id at 545.

The Commentary also suggests that an "organization dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members" can limit its membership without being subject to the prohibition. This language has been relied upon by the Judicial Conference to permit judges to remain members of Masonic lodges and Elks Clubs. Spruce Creek Rod and Gun Club is not dedicated to preserving religious, ethnic or cultural values of legitimate common interest to its members - it is dedicated primarily to fishing and hunting, just like most country clubs are dedicated primarily to golf.

Accepting Judge Smith's argument would sap Canon 2C - which was enacted after decades of intense lobbying by civil rights and women's rights groups - of all its vitality. As the leading text on judicial ethics explains, "the principal function of [Canon 2C] is to bar membership in discriminatory social clubs." Judge Smith reads Canon 2C to exempt discriminatory social clubs from coverage.

The 1992 Amendments to the Code and Commentary made Canon 2's Ban on Membership in Discriminatory Clubs Far Stronger

Judge Smith asserts that the changes made to the Code of Conduct for United States Judges in 1992 make clear that "Spruce Creek's membership policies were not an instance of 'invidious discrimination' under Canon 2C." There is no basis for this assertion.

While the Judicial Conference did change the ban on discriminatory clubs in 1992, Judge Smith fails to convey the indisputable fact that each of three major changes made to the ban on discriminatory clubs made the ban stronger and more categorical. None of the changes on their face gave Judge Smith any reason for believing that he did not have to resign from Spruce Creek. First, the Judicial Conference moved the ban on such clubs from the commentary for Canon 2, to the Canon itself (the ban comprises a new Canon 2C). Second, the prohibition on membership in clubs that invidiously discriminate was made mandatory and self-executing, replacing the text that left it to "the conscience of the individual judge" to determine whether an organization discriminated such that he or she had to resign. Finally, the revisions added a requirement that a judge "resign immediately" two years after a judge learns that a club discriminates on the basis of race, sex or religion (contrary to Judge Smith's repeated assertion that this two-year period is a "suggestion," the time limit in the commentary requires resignation after two years, it does not "suggest" it.)

Nothing in the 1992 revisions could have given Judge Smith legitimate reason to change his 1988 conclusion that the Code would require his resignation from membership in Spruce Creek. Indeed, the changes should have made Judge Smith more sensitive to the need to honor his 1988 commitment to the Senate to withdraw.

The Summaries of Private Advisory Opinions Cited by Judge Smith Do Not Support the Argument that Spruce Creek Is Exempt Under Canon 2C

Judge Smith's conclusion that Canon 2 "imposed no mandate" that he resign membership in Spruce Creek is based largely upon two brief summaries of private advisory opinions included in a Compendium of Selected Opinions issued to judges by the Advisory Committee on Codes of Conduct. One of these opinions states that an "all male club with purely social purpose, limited membership chosen according to selective criteria, no business or commercial purpose, and not in violation of state or local law cannot be said to practice invidious discrimination." The second states that a "female health club that does not confer any professional or business advantages does not practice invidious discrimination."

Judge Smith's reliance on these two summaries of unpublished opinions is entirely misplaced.

First, as the Compendium itself makes clear, the summaries of unpublished opinions contained in the Compendium are intended only "to provide general guidance." These opinions do not alter the words of Canon 2 and its commentary in any way, and the Compendium specifically instructs judges "to consult the Committee or one of its members with respect to any specific factual situation he or she is confronting." While purportedly relying heavily on the Compendium for guidance on the applicability of Canon 2 to Spruce Creek, as discussed in more detail below, Judge Smith entirely ignored the Compendium's advice to "consult the Committee" for specific factual situations.

Second, because these opinions are confidential and therefore based on untold facts, they add very little guidance beyond the words already in the Code and Commentary. For example, it can be assumed based on the Code and Commentary that an all male or female book or poker club that meets monthly at the house of one of its members is not covered by Canon 2C. We have no way of knowing whether or not the "all male club" discussed in the first opinion above is anything other than such an intimate, private club. Similarly, we know no details about the female health club other than the fact that it confers no "professional or business advantages."

Third, even based on the little we do know about these clubs, these unpublished opinions are easily distinguished. Both the all male social club and the all female health club are exempted primarily because they do not confer professional advantages. See Compendium § 2.14(c-1) (club has no "business or commercial purpose"); § 2.14(c-2) (club "does not confer any professional or business advantages"). These descriptions seem plainly not to fit Spruce Creek. Spruce Creek has an historic clubhouse that hosts business meetings. Members are attracted to Spruce Creek because membership grants exclusive and quite valuable rights to fish on the Club's property, sometimes alongside Senators and Presidents.

In addition, the all male social club is exempted from the Code's restrictions in part because it has a "limited membership based on selective criteria." Little is known about Spruce Creek's membership criteria other than the ban on women, but it is hard to imagine "selective criteria" that would justify blanket discrimination against accomplished women shooters and anglers.

Finally, there is the question of timing. The Compendium of Selected Opinions cited by Judge Smith is dated April 27, 2001. While opinions 2.14(b) & (c-1) are not dated, it appears likely that they were first published in a Compendium long after 1992, when Canon 2C was added to the Code. Thus, this guidance would not have been available to Judge Smith in 1992, which is when he asserts that he "had the opportunity to reexamine the entire Code and consider its application to my membership in the Spruce Creek Rod & Gun Club."

If Judge Smith Wanted to Get a Definitive Answer Concerning Whether Spruce Creek Practiced Invidious Discrimination, He Could Have Requested a Private Advisory Opinion

As Judge Smith recognizes, the Judicial Conference's Committee on Codes of Conduct is set up to provide responses to "confidential, fact-specific inquiries" from judges about the propriety of their conduct. If Judge Smith came to question, after his 1988 hearing, whether he had been correct in concluding that Spruce Creek invidiously discriminated, there was a simple, definitive way for him to get that answer: ask the Committee.

A private advisory opinion declaring that Spruce Creek did not discriminate invidiously would have permitted Judge Smith to remain a member of the Club without any possibility of legitimate criticism. Judges are permitted to make these private opinions public, so he could also have shared this opinion with the Committee and his critics.

So why did he not ask? The answer seems to be that prior to April 5, 2002, when membership in the Club became an issue in his confirmation, Judge Smith never believed there was even a colorable argument that the Club did not discriminate invidiously. Indeed, that may well have been the motivation for Judge Smith's resignation from the Club in late 1999, shortly after Judge Lewis vacated the Third Circuit seat to which Judge Smith has been nominated. This explanation also would explain Judge Smith's decision, in filling out his September 2001 questionnaire responses, to specifically list Spruce Creek, with no qualifications, as a discriminatory organization to which he had belonged, in response to a question concerning the ethical prohibition against judicial membership in "any organization that invidiously discriminates." It would also explain his failure to raise the "Spruce Creek does not discriminate invidiously" defense in his March 2002 response to a question about the Club posed by Senator Leahy.

Spruce Creek discriminated invidiously prior to April 5th and it discriminates invidiously today.

Judge Smith's 1988 Promises Were Not Kept

Even if Judge Smith could make a viable argument that the 1992 changes to the Code of Conduct altered the analysis of the applicability of the ban to Spruce Creek, he would still have to explain why he stayed a member of the Club for four years after his 1988 confirmation, before any change was made in the Code. This raises serious questions, because Judge Smith declared in 1988 "adherence to the Code would require my resignation from the Club" and he testified that he might have to wait until an April 1989 board meeting of the Club to attempt to change the by-laws. The Senate confirmed him based on these statements.

Judge Smith responds to questions of why he took so long to resign by asserting that he did not "specify" in 1988 when he would do so. This may be correct in the most legalistic sense, but, at the very least, Judge Smith gave the Committee the impression that he would resign within a reasonable time if efforts to change the by-laws were unsuccessful. The timeframe he mentioned was the April 1989 annual meeting. Notwithstanding his 1988 testimony, Judge Smith stayed on as a member of Spruce Creek as a district judge even after acknowledging in a March 1991 letter that "there is little chance that my efforts to change this provision will bear fruit."

Membership in Spruce Creek Plainly Violates the Senate Judiciary Committee's Resolution on Discriminatory Clubs

Similarly, even if Judge Smith were right in asserting that Spruce Creek did not discriminate invidiously under the terms of Canon 2C, the Judiciary Committee would still have to consider the fact that the Club plainly does discriminate invidiously under the terms of a Judiciary Committee Resolution passed in 1990 that deems it "inappropriate for persons who may be nominated in the future to serve in the federal judiciary or the Department of Justice to belong to such clubs.

The Committee's resolution bars membership in "clubs where business is conducted that by policy or practice intentionally discriminate." A club meets this definition if "club members bring business clients or professional associates to the club for conferences, meetings, meals, or use of the facilities." The resolution declares that "country clubs and clubs where meals are served shall be presumed to be clubs where business is conducted."

Spruce Creek is a club where business meetings are conducted and meals are served. The resolution plainly applies to Spruce Creek, and, therefore, his membership in the club is "an important factor which Senators should consider in evaluating" his nomination for a seat on the federal bench. Moreover, the Committee Resolution is designed to apply to the entire population of individuals that "may be nominated" to the Justice Department or the federal judiciary. A far different calculus would seem to apply to a sitting federal judge that promised the Committee he would resign from a particular club and failed to do so for eleven years.