Bradley v. Work

• Decision Date: 31 August 1998
• Docket Number: No. 96-2241,96-2241
• Citation: 154 F.3d 704
• Parties: Hilbert L. BRADLEY, et al., Plaintiffs-Appellants, v. Frederick T. WORK, et al., Defendants-Appellees, Randall T. Shepard, et al., Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 704

154 F.3d 704

41 Fed.R.Serv.3d 429

Hilbert L. BRADLEY, et al., Plaintiffs-Appellants, v. Frederick T. WORK, et al., Defendants-Appellees Randall T. Shepard, et al., Intervening Defendants-Appellees.

No. 96-2241.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1997.

Decided Aug. 31, 1998.

Hilbert Bradley, Gary, IN, Stephen Laudig (argued), Laudig, George, Rutherford & Sipes, Indianapolis, IN, for Plaintiffs-Appellants.

J. Justin Murphy, Murphy Law Firm, Hammond, IN, for Frederick T. Work and Jerome Reppa.

J. Michael Katz, Katz, Brenman & Angel, Merrillville, IN, Edward H. Feldman, Highland, IN, J. Justin Murphy, Murphy Law Firm, Hammond, IN, for Robert C. Antich.

Edward H. Feldman, Katz, Brenman & Angel, Merrillville, IN, for Anna N. Anton.

Ronald E. Elberger, George T. Patton, Jr. (argued), Bose, McKinney & Evans, Indianapolis, IN, for Intervening Defendants-Appellees.

Before POSNER, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The ultimate question presented in this appeal is whether § 2 of the Voting Rights Act, 42 U.S.C. § 1973, applies to the way in which judges for the Superior Court of Lake County, Indiana, are selected, and if so whether the Act has been violated. Prior to reaching that issue, however, we must work our way through a series of procedural obstacles that arose largely because of the plaintiffs' lack of attention to the rules governing litigation in the Southern District of Indiana and the taking of appeals to this court. Briefly, we conclude: (1) this appeal is properly before us, (2) the district court did not abuse its discretion on a number of evidentiary points, (3) the district court was entitled to refuse to grant a motion under Federal Rule of Civil Procedure 59(e) to alter its judgment, (4) while the Voting Rights Act applies to judicial retention elections in Lake County, the court properly granted summary judgment for the defendants, and finally (5) this appeal is not so frivolous, nor was appellants' counsel's behavior quite contumacious enough, to warrant the sanctions appellees have requested (this last decision is one we see no need to further belabor).

I

The plaintiffs here describe themselves as "black citizens, residents of Lake County, Indiana, and registered voters." See Bradley v. Work, 916 F.Supp. 1446, 1449 (S.D.Ind.1996) , quoting Fifth Amended Complaint. As the district court did, we will refer to them as "the Voters." Lake County, located in the northwestern part of Indiana, has a significant African-American population. At the time of the 1990 Census, African-Americans accounted for 116,688 out of the county's 475,594 residents, or about 24.5%, and accounted for 22.5% of the voting age population. The Voters brought this case in August 1991 to challenge the process of appointing and electing judges in Lake County--a process that they claimed had produced a disproportionately low number of African-American judges.

Most Lake County Superior Court judges (those in the Civil, Criminal, and Juvenile Divisions) are selected under the hybrid system known as the "Missouri Plan." Ind.Code §§ 33-5-29.5-26, -39, -42; see also Nipper v. Smith, 39 F.3d 1494, 1500-01 (11th Cir.1994); Jay A. Daugherty, The Missouri Non-Partisan Court Plan: A Dinosaur on the Edge of Extinction or a Survivor in a Changing Socio-Legal Environment?, 62 Mo. L.Rev. 315 (1997). (Judges in the County Division are instead elected at-large in county-wide elections, Ind.Code § 33-5-29.5-42.5, an arrangement not relevant to this appeal.) Under the Lake County version of the Missouri Plan, for each judicial vacancy a nominating committee sends three names to the Governor of Indiana, who makes the final selection. Appointees then face retention elections, after approximately two years and then again every six years. Ind.Code § 33-5-29.5-41.

Indiana Code § 33-5-29.5-36 requires the nominating committee to use certain factors to evaluate candidates. In 1995, the statute was amended to add a new requirement: that the committee "consider that racial and gender diversity enhances the quality of the judiciary." Id., as amended by 1995 Ind. Acts 18, § 73. Until the 1995 amendment, the committee included three non-attorney members appointed by the Governor, three attorney members elected by all practicing attorneys in the county, and the Chief Justice of Indiana or his or her designee. The 1995 amendment expanded the committee's membership to nine, of whom four must be attorneys elected by the local bar, four must be non-attorneys appointed by the Lake County Board of Commissioners, and the last is the Chief Justice or his or her designee. Ind.Code § 33-5-29.5-29, as amended by 1995 Ind. Acts 18, § 68. Furthermore, the 1995 amendment bent over backwards to achieve diversity. It required that of each foursome, two be male and two female, and that one of each foursome be a "minority individual," which is defined for these purposes as "an individual identified as black or Hispanic." Ind.Code §§ 33-5-29.5-29, 20-1221.7-4. (After several attorneys in Lake County challenged the 1995 amendment, the district court preliminarily enjoined the operation of that part which created gender and ethnicity quotas for attorney members of the nominating committee, Back v. Carter, 933 F.Supp. 738 (N.D.Ind.1996), and later permanently enjoined the same part, Back v. Carter, No. 95-CV-288 (N.D.Ind. Sept. 17, 1996) (order entered by stipulation), decisions never appealed to this court.)

The present case initially involved several challenges to the system of judicial selection in Lake County, but the only issue that the Voters have raised on appeal is whether the system of appointment plus retention elections for the Superior Court judges (other than the County Division group) violates either the Voting Rights Act or the Constitution. Implicit in that question is the more fundamental one--whether the Voting Rights Act applies at all to the retention election phase of the Lake County process.

II

As we noted earlier, we must first dispose of some procedural issues before turning to the merits. First, we must decide whether the Voters' notice of appeal was adequate to bring the case before this court. Second, the Voters challenge Judge McKinney's decision to exclude several affidavits from evidence when he ruled on the parties' summary judgment motions, in particular an affidavit from Dr. Leonard Moore, an historian who offered to provide background about racial discrimination in Lake County and the history of the appointment and retention system there. Third, the Voters argue that the district judge abused his discretion when he refused to grant their motion to alter the judgment under Federal Rule of Civil Procedure 59(e), on the ground that the "new" evidence they wished to present had been available to them earlier.

Rule 3(c) of the Federal Rules of Appellate Procedure requires that a notice of appeal "name the court to which the appeal is taken." It is clear from the record that the Voters' notice of appeal did not do this. (The Voters had numerous other problems complying with the rules of appellate procedure, among them failing to name the defendants correctly and taking four tries to file a brief that complied with all relevant rules, the final version of which we accepted only after their attorney agreed personally to pay appellees' attorney fees resulting from the unacceptable filings. This is a disturbing pattern, and one that we do not condone.) Nevertheless, even though Rule 3(c) makes the naming of the court mandatory, see Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), the rule goes on to say that "[a]n appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." Fed. R. App. P. 3(c). This court has held that it will not dismiss on mere technicalities, including in the naming of the court to which a judgment is being appealed, if the notice as a whole is not misleading. See Ortiz v. John O. Butler Co., 94 F.3d 1121, 1125 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 957, 136 L.Ed.2d 843 (1997).

Here, the notice of appeal named and was filed in the U.S. District Court for the Southern District of Indiana on May 16, 1996. The clerk of that court promptly forwarded the papers to this court, as it is required to do under Federal Rule of Appellate Procedure 3(d), under the logical assumption that this court was the one to which the appeal was being taken. See 28 U.S.C. §§ 41, 1294. On May 30, 1996, this court issued a Rule To Show Cause to the appellants because they had not as of then filed their Rule 3(c) docketing statement. By return letter the same day, served on opposing counsel, the appellants filed their docketing statement, which clearly indicated that the appeal was lodged in the Seventh Circuit. While we consider this to be on the margins of "informality of form," (appellees point out that appeals from certain cases under the Voting Rights Act lie directly in the Supreme Court, see, e.g., 42 U.S.C. §§ 1973b(a)(5), 1973c), we conclude that it was adequate to bring the appeal to this court, Ortiz, 94 F.3d at 1125, and we proceed to the Voters' procedural arguments.

The district court explained its evidentiary rulings briefly, without referring specifically to the particular affidavits or other materials the Voters wished to use in support of their case:

The motions to strike various pieces of evidence offered by the plaintiffs in opposition to or support of the motions for summary judgment are well-taken and to the extent that the proffered evidentiary materials contain inadmissible hearsay, lay opinions, speculations, or conclusions, they are stricken. In addition, because the plaintiffs failed to provide the Court with any sort of guide by which to navigate the maze of evidentiary...