Vt. Admin. Ord. Of. Sup. Ct. 3.6

As amended through November 4, 2024

Rule 3.6 - Affiliation with Discriminatory Organizations

(A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, color, sex, religion, national origin, ethnicity, ancestry, place of birth, disability, age, sexual orientation, gender identity, marital status, socioeconomic status, or other grounds that are illegal or prohibited under federal or state law.

(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.

Vt. Admin. Ord. Of. Sup. Ct. 3.6

Amended August 6, 2019, eff. 10/7/2019.

Comment

[1] 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.

[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of the grounds set forth in Rule 3.6(A) those 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 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.

[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.

[4] A judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.

[5] This Rule does not apply to national or state military service.

Reporter's Notes

Rule 3.6 and its Comment are taken from ABA Code 2007, Rule 3.6, with modifications in Rule 3.6(A) and Comment [2] to describe the grounds of prohibited discrimination in terms identical to those of V.R.Pr.C. 8.4(g) intended to incorporate all grounds prohibited under state and federal law and to track the Vermont Fair Employment Practices Act, 21 V.S.A. § 495(a)(1), and discrimination on the basis of other grounds barred by federal or state law such as 21 V.S.A. § 495(a)(5) (HIV). See Reporter's Notes to 2017 amendment of V.R.Pr.C. 8.4(g). See also Rules 2.3(B), (C), and Comment [3]; Rule 3.1, Comment [3].

The new rule otherwise carries forward Vermont Code 1994, Canon 2C, eliminating the one-year grace period before a judge who learns of the discriminatory nature of the organization must resign. Comment [2] provides a functional test for the determination whether an organization engages in invidious discrimination. Comment [3] makes clear that a judge must immediately resign from an organization upon learning that it engages in invidious discrimination. See ABA Reporter's Explanation 118-21.