895 F.Supp. 1556 (S.D.Fla. 1995), 95-8319, Mallory v. Harkness

Docket Nº:95-8319-CIV.
Citation:895 F.Supp. 1556
Party Name:Earl K. MALLORY, Plaintiff, v. John F. HARKNESS, Jr., et al., Defendants.
Case Date:July 07, 1995
Court:United States District Courts, 11th Circuit, Southern District of Florida

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895 F.Supp. 1556 (S.D.Fla. 1995)

Earl K. MALLORY, Plaintiff,


John F. HARKNESS, Jr., et al., Defendants.

No. 95-8319-CIV.

United States District Court, S.D. Florida.

July 7, 1995

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Steven Jay Wisotsky, Fort Lauderdale, FL, for plaintiff.

Barry Scott Richard, Tallahassee, FL, for defendants.


RYSKAMP, District Judge.

THIS CAUSE came before the Court upon plaintiff's request for a declaratory judgment that Florida Statute § 43.29(1)(a) is unconstitutional and a permanent injunction barring its enforcement. The Court finds that the race and gender-based quota as established by § 43.29(1)(a) violates the Fourteenth Amendment to the Federal Constitution and therefore GRANTS plaintiff the relief sought.


Plaintiff applied for the sole vacancy on the Judicial Nominating Commission ("JNC") for Florida's Fourth District Court of Appeal. He received a letter stating that his application "cannot be considered" because he is not a woman or a minority as defined by the challenged statute. He then commenced this action, seeking emergency preliminary injunctive relief to prevent The Florida Bar Board of Governors from filling the vacancy as scheduled at its meeting on May 26, 1995.

On May 24, 1995, U.S. District Court Judge Daniel T. Hurley, serving as emergency duty judge, issued an Order to Show Cause why a temporary restraining order

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should not issue and scheduled the matter for a hearing on May 25. At the hearing, counsel for The Florida Bar announced that the Bar would not defend the challenged statute. The Attorney General, having been duly served pursuant to Local Rule 24.1 B and having received notice of the Order to Show Cause Hearing, did not appear. Consequently, Judge Hurley granted plaintiff's Motion for a Temporary Restraining Order enjoining defendants from filling the sole vacancy on the JNC for the Fourth District Court.

Thereafter, this Court set the matter for hearing on Plaintiff's Motion for Preliminary Injunction, and the parties were heard on June 8, 1995. The Florida Attorney General filed a Motion to Intervene as well as a Response in Opposition to Plaintiff's Motion for Preliminary Injunction. Plaintiff filed a Reply. The Florida Bar, the Board of Governors, the Bar President and the Bar Executive Director filed an Answer disavowing any interest in defending the statute.

At the June 8 hearing, H.T. Smith, President of the National Bar Association, appeared and filed a Motion to Intervene on behalf of the Florida Chapter of the National Bar Association. The Court granted his Motion and permitted him to present argument. The Court also granted his request for ten days to submit a written response to the lawsuit.

The Court agrees with Judge Hurley that plaintiff has made the requisite showing for preliminary injunctive relief. The Court further finds that the material facts of the case are not in dispute: 1) that Mr. Mallory, a lawyer in good standing with The Florida Bar, timely applied for a vacant seat on the JNC for the Fourth District Court of Appeal; 2) that, aside from the challenged race and gender qualification, he met all of the statutory requirements for the position; and 3) that he was rejected by the Board of Governors solely on the basis of his race and sex.

Because the material facts of this case are not in dispute, this case is ripe for adjudication on the merits of the plaintiff's constitutional claims. Were this case at a later stage of the proceedings, entry of summary judgment under Rule 56 would be appropriate. At this stage, however, hearing on the application for Preliminary Injunction should be, and hereby is, consolidated with final adjudication on the merits under Rule 65(a)(2). Counsel for plaintiff so moved ore tenus, and the other parties have not objected.

Accordingly, the Court makes the following findings of fact and conclusions of law with respect to plaintiff's claim that § 43.29(1)(a) violates the First and Fourteenth Amendments to the Federal Constitution.


Florida Statute § 43.29, which governs the composition of Judicial Nominating Commissions ("JNCs"), was amended on October 1, 1991, to provide that one third of all JNC seats be occupied by either a woman or a member of a racial or ethnic minority group. The amended section reads:

(1) Each Judicial Nominating Commission shall be composed of the following:

(a) Three members, at least one of whom must be a member of a racial or ethnic minority group or a woman, appointed by the Board of Governors of The Florida Bar from among The Florida Bar members who are actively engaged in the practice of law with offices within the territorial jurisdiction of the affected court, or in the district or circuit;

(b) Three members, at least one of whom must be a member of a racial or ethnic minority group or a woman, who reside in the territorial jurisdiction of the court or in the circuit appointed by the Governor; and

(c) Three members, at least one of whom must be member of a racial or ethnic minority group or a woman, who reside in the territorial jurisdiction of the court or in the circuit and who are not members of the bar of Florida, selected and appointed by a majority of the other six members of the commission.

(emphasis added). The JNCs, created by Article V § 20(c)(5)(a) of the Florida Constitution, are charged with receiving and reviewing applications for judicial vacancies and forwarding to the Governor at least three recommendations per vacancy from

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which he selects and appoints a judge. There is a separate JNC for each judicial circuit, for each court of appeal, and for the supreme court. Fla. Const. Art. V § 11(d).

The amendment to § 43.29 imposes an outright ban on plaintiff's right to seek a particular state public office because of his race and gender. In future years, he is forever barred by statute, based on his race and gender, from applying for one-third of the seats for which lawyers are eligible. The statutory mandate that the particular seat here at issue and one-third of all JNC seats generally "must" be filled by a woman or a defined group member is therefore a quota.


Plaintiff first urges that the amended statute violates his individual rights under the Fourteenth Amendment because it imposes absolute race and gender-based qualifications for the particular JNC seat he seeks. The Court agrees. Applying strict scrutiny analysis, the Court finds that defendants have failed to assert a compelling state interest to justify an infringement of plaintiff's right to equal protection under the Fourteenth Amendment. Even if such justification existed, the Court nonetheless finds that the statute is not narrowly tailored to serve its ends.

Although the Equal Protection Clause generally allows the States considerable leeway to enact legislation that may appear to affect similarly situated people differently, Clements v. Fashing, 457 U.S. 957, 962, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982), the Supreme Court has consistently held that "[a] racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Classifications based upon race must be justified by specific "judicial, legislative, or administrative findings" of past discrimination. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (1978). Accordingly, to meet the compelling interest requirement, the State must present "particularized findings" of "prior discrimination by the governmental unit involved." Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 274, 276, 106 S.Ct. 1842, 1847, 1848, 90 L.Ed.2d 260 (1986).

A. A Compelling State Interest Has Not Been Shown

In the present case, neither the Ethnic Bias Study Commission Report1 ("Report") nor the intervening Attorney General has asserted, much less proved, that there has been any prior discrimination by JNCs in the screening of judge applicants. In conducting its inquiry, the Report did not positively identify any discriminatory policies or practices. Rather, the Report tentatively proposed three possible explanations for the lack of diversity in the Florida judiciary: 1) the small number of minorities in the legal profession, 2) the judicial election process, and 3) the judicial appointment process. Report at 15-17. With respect to judicial appointments, the Report could only find that "a strong correlation may exist between the lack of minority inclusion in the judicial selection process and the lack of minority judges." Report at 19. But later, the Report itself appears to have disposed of such sketchy intimations of bias in the nomination process: "Survey findings indicate that of whites, African-Americans, and Hispanics who apply for judgeships, comparable percentages of each racial pool are recommended to the Governor...." Report at 19.

It is of course conceivable that, in spite of inconclusive report findings, a court may nonetheless independently find that a pattern or practice of discrimination exists "where gross statistical disparities can be shown." Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308, 97 S.Ct. 2736, 2741-42, 53 L.Ed.2d 768 (1977). The Report itself discusses at some length the underrepresentation of minorities and presents statistics which, at first glance, might indicate a pattern of past discrimination: While African-Americans and Hispanics make up 13.8% and

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8.8% of Florida's general population, Report at 7 (based on the 1980 U.S. Census), they make up only 4% and 1.5% of all Florida judges. Report at 13.

Though these figures are by themselves interesting, they are...

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