Duty to Resign

Duty to Resign

A judge can violate Rule 3.6 without having done anything wrong on the day of joining. The rule provides that a judge "shall not hold membership" in an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation, and the operative verb is hold.¹ Membership is a status. It begins when the judge joins and lasts until the judge leaves, so the rule forbids the status itself and not merely the act of joining. A judge who joins a club believing it open to everyone, and who later learns that it refuses members on a listed basis, now holds a forbidden membership. Only ending that membership changes the result. Good faith explains how the judge came to belong, but it does not change what the judge is doing today, and the rule's text contains no exception for the member who means well.

The duty therefore arises as soon as the judge knows the facts, and it calls for prompt action. The harm at stake is the judge's public association with the exclusion of people because of who they are, and that association continues on every day the judge's name stays on the roster. It does not fade with time or familiarity. A judge who waits to see whether the club will amend its bylaws prolongs the association while waiting, and a rule that allowed a grace period for reform would give every member a reason to wait and see. Prompt resignation also gives the innocent joiner a simple, certain way back to compliance, because one act ends the membership and the problem with it.

The instinct that costs points on an exam is the belief that a judge can cure the problem by staying and working from within. A member who likes the club and dislikes its policy will often reason that arguing for change at the annual meeting does more good than leaving. That reasoning looks to the judge's purpose, but the rule looks to the status. An outside observer sees a judge who remains a member, pays dues, and keeps a seat in a group that excludes people on a listed basis, and the observer cannot see the judge's private reformist motive. Reform efforts also carry no deadline, so a judge who stays to change the group could stay indefinitely while the association continues.

Both judges learned the same kind of fact about an organization they had joined innocently, and the only difference in outcome is what each did next. The first kept the status the rule forbids, and the second gave it up. Compliance is measured by that status, so steps short of resignation do not count. A judge who stops attending meetings but stays on the roster and keeps paying dues still holds membership, and the association continues. Whether a former member may still use the club's facilities is a separate question, taken up in the next section.