Using Club Facilities

Rule 3.6(A) forbids a judge to hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.¹ That rule turns on status, and a judge can avoid a status without avoiding the club. A judge who never joins but dines there every week, plays its courts, and hosts events in its rooms holds no membership and still looks like a regular of the place.

Paragraph (B) closes the gap in two sentences that work together. The first bars a judge from using the benefits or facilities of a discriminating organization. The second excuses an isolated attendance that no one could reasonably take as endorsement. Read the bar first, because the exception removes only part of what the bar covers.

Benefits and Facilities

Rule 3.6(B) forbids a judge to 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).² The sentence has three elements: the judge uses the organization's benefits or facilities; the organization practices invidious discrimination on a listed basis; and the judge knows or should know of that practice. Membership appears nowhere in the list.

The listed bases are the ones paragraph (A) names. A club that selects on some other ground, such as alma mater or political affiliation, falls outside paragraph (B) just as it falls outside paragraph (A).³

Paragraph (B) reaches nonmembers because the rule is concerned with perception. The exception that follows asks whether a judge's attendance “could reasonably be perceived as an endorsement of the organization's practices.” A weekly guest at an exclusionary club invites exactly that perception, and the people the club turns away see the guest at dinner as clearly as they would see a member. If the rule covered only members, a judge could keep every benefit of an exclusionary club by declining to sign the roster. Use of the facilities is therefore a violation in itself, and no showing of membership is needed.

The knowledge element protects a judge who has no reason to suspect an exclusion, and it takes two forms. A judge knows when the judge is actually aware of the practice. A judge should know when a reasonable person in the judge's position would have recognized it, which is constructive knowledge. The second form matters because actual knowledge alone would reward willful blindness: a judge could avoid the rule by never asking and never looking. Facts that can supply constructive knowledge include a policy written into published bylaws, public reports about the club's admissions, and what repeated visits reveal about who belongs and who is turned away. Frequency counts here, since a judge who plays one round has seen little, while a judge who plays every week for a year has had many chances to notice.

The usual exam error is to stop at the first question and conclude that a judge who is not a member cannot be in violation of anything.

Knowledge is tested at the time of each use, so a judge's position can change over time.

Both scenes involve the same use of facilities and the same exclusion on a listed basis, so the knowledge element alone separates the violation from the clean record. The exception in the rule's second sentence works only on a judge who would otherwise fall within this general bar, so establish the three elements first.⁴

Isolated Attendance Exception

The second sentence of Rule 3.6(B) softens the general bar. 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 when the attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization's practices.⁶ The exception answers a practical problem. The general bar reaches any use of a covered organization's facilities, and a judge who walks into a banquet room for a single dinner is, literally, using them. Without relief, a judge whose bar association books its annual dinner at an exclusionary club would have to stay home or break the rule.

The exception carries two requirements, and each blocks a different route by which it could swallow the rule. The isolation requirement stops repeated visits from adding up to regular patronage. The endorsement limit stops a judge's visible role in an event from turning one visit into a statement of support.

The first requirement is that the attendance be an isolated event. The word describes a single occasion that stands apart from any pattern of visits. Each additional visit is another use of the facility, and a series of visits makes the judge look like a regular. A judge who attends events at the same club four times in a year has built a pattern even if a different host planned each event, and no single visit can be called the isolated one.

The second requirement is that the attendance could not reasonably be perceived as an endorsement of the organization's practices. The word reasonably makes the standard objective: the question is what a sensible observer, including a person the club excludes, would conclude from seeing the judge there. The judge's private disapproval of the club's policy is invisible to that observer, so it does little to answer the question. What the observer sees is the judge's role in the event. A guest among many at an event that someone else planned looks like an attendee. A judge who chose the club, hosts the event, pays the club, or is publicized as the organizer looks like a patron who picked the place knowing what it was.

The shortcut that loses points is to satisfy one requirement and stop. A judge who attends once might assume that isolation settles the matter, and a judge who dislikes the club's policy might assume that a lack of intent to endorse settles it. Neither assumption holds, as the next two scenes show.

The reverse failure also occurs. A judge who attends events at the same club on many occasions, each planned by others and each innocuous when viewed alone, fails the first requirement even though no single appearance looks like a statement of support.

Exam Analysis Steps

The exception removes a violation only when both of its requirements are met, so run it as a short sequence after the general bar has been established:

Confirm that the general bar applies: the judge used the facilities of an organization that practices invidious discrimination on a listed basis, and knew or should have known of the practice.
Confirm that the judge attended an event in the facility of an organization the judge is not permitted to join, since that is the situation the exception describes.
Ask whether the attendance is isolated, looking at whether the judge has come to this facility before or is likely to come again.
Ask whether a reasonable observer could perceive endorsement, looking at who chose the venue, what role the judge played, and whether the judge's name or money helped the organization.
Conclude that the exception applies only if steps three and four both favor the judge, because a failure at either one leaves the judge in violation of the general bar.

The second step also marks the exception's outer edge. It covers attendance at an event and nothing more. Paragraph (A) forbids a judge to hold membership in an organization that practices invidious discrimination on a listed basis, and an excused visit does not turn a membership into an attendance.⁷ A judge who uses a club's courts or dining room on ordinary days is not attending a one-time event either, so the exception gives no protection. It shields the occasional guest at someone else's event and leaves the rest of the rule in place.