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California judges who are members of the Boy Scouts of America don’t have to leave the organization, the state’s high court said last week, but they’ll have to disclose their membership and even disqualify themselves from particular cases “in some instances.” The California Supreme Court — responding to bar groups that raised the appropriateness of judges associating with such groups as the Boy Scouts, which openly discriminates against gays — declined to change the state’s judicial ethics codes allowing membership in youth groups that practice invidious discrimination. But, the court said, judges “should disqualify” themselves from cases “when doing so would be appropriate.” “Even if the judge believes there is no basis for disqualification,” the court’s order added, “the judge should disclose the membership to the parties or their lawyers if the judge believes they may consider it relevant to the question of disqualification.” Also on June 18, the court proposed amendments to the judicial canons that would provide guidelines for campaign statements by judicial candidates, strengthen the rules against judicial statements or actions that could be considered sexual harassment, and establish under what circumstances bond ownership might disqualify a judge from a case. The decision on judges’ memberships, however, was the biggest of the day and has garnered a mildly positive reaction from those who had hoped for an outright ban. Jeffrey Bleich, president of the Bar Association of San Francisco, which originally asked the court to prohibit judges from participating in the Boy Scouts, calls the order “an important step forward.” “We had asked for the elimination of the exemption [that allows judges to associate with youth organizations that discriminate],” says Bleich, a partner in the San Francisco office of Los Angeles’ Munger, Tolles & Olson. “But I believe this accomplishes a lot of the same objectives.” Gay rights lawyer Jon Davidson says the order will complicate judges’ lives. “Unfortunately, the court did not establish as clear a bright line as would have been more desirable,” says Davidson, senior staff attorney in the L.A. office of New York’s Lambda Legal Defense and Education Fund. “What they said was judges can belong to youth organizations that discriminate so long as doing so would not make a reasonable person doubt the judges’ impartiality.” He says it seems clear that “in any case where sexual orientation is at issue or there is possibly a gay party, lawyer, witness, or juror, that the judge’s capacity to be impartial would be in doubt if the judge belongs to an organization that’s committed to discrimination based on sexual orientation.” The Bar Association of San Francisco, and three other county bar groups, had asked Chief Justice Ronald George to amend the rules and prohibit judicial membership in biased groups after the U.S. Supreme Court’s 2000 decision in Boy Scouts of America v. Dale, which lets the youth group exclude gays. They specifically wanted the court to eliminate the Boy Scouts’ exemption to the judicial canon that bars judges from associating with groups that practice “invidious discrimination on the basis of race, sex, religion, national origin or sexual orientation.” In its June 18 order, the court said it found no reason to change the canon after reviewing “the requests and supporting materials, the numerous letters and other communications” it had received after announcing it would review the canons. Instead, the court said, it decided it would be best to add language to the commentary that accompanies the canons making clear that “even when membership in a particular organization is permitted,” the judge should disqualify him or herself when appropriate. At the very least, the court said, the judge should disclose membership when “the judge believes the parties or their lawyers might consider this information relevant.” Both Davidson and Bleich say the disclosure language would let lawyers raise either a peremptory challenge or a challenge based on cause. “The lawyers could bring the motion at any time if they believe there is reason,” Davidson says. Bleich notes that, over time, forced disclosure would let the public know how many judges are involved in discriminatory groups based not only on sexual orientation but also on the basis of race, gender, or ethnic origin. That could have ramifications, says Gerald Uelmen, a professor at Santa Clara University School of Law. “I would think that a careful judge would seriously rethink membership in an organization in light of these requirements,” he says. “If you’re exposing yourself to a requirement that you almost routinely disclose your membership, I think many judges will reconsider the membership itself. “It would raise questions that they’d just as soon avoid,” Uelmen says. Among the proposed amendments, the court is considering changes that would clarify what kinds of statements judicial candidates could make during campaigns. In particular, the court wants to clarify that “false statements or misleading true statements” violate judicial ethics. This article was distributed by the American Lawyer Media News Service. Mike McKee is associate editor at The Recorder in San Francisco.

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