Back v. Carter

• Decision Date: 30 May 1996
• Docket Number: No. 2:95-CV-288-RL.,2:95-CV-288-RL.
• Citation: 933 F. Supp. 738
• Parties: Michael W. BACK v. Pamela CARTER, Attorney General, State of Indiana; Rudolph Clay, Ernest Niemeyer, Peter Katic, Commissioners of Lake County; Robert Antich, Clerk, Lake Circuit Court; Anna N. Anton; Evan Bayh, Governor, State of Indiana, Randall T. Shepard, in his official capacity as a member of the Judicial Nominating Commission for the Superior Court of Lake County, Intervenor Defendant, Richard J. Conroy, James Danikolas, Gerald N. Svetanoff, James J. Richards, Jeffrey J. Dywan, Richard W. Maroc, James E. Letsinger, William E. Davis, Mary Beth Bonaventura, Chief Judge, all in their official capacities as Judges of the Superior Court of Lake County, Intervenor Defendants.
• Court: U.S. District Court — Northern District of Indiana

933 F. Supp. 738

Michael W. BACK v.Pamela CARTER, Attorney General, State of Indiana; Rudolph Clay, Ernest Niemeyer, Peter Katic, Commissioners of Lake County; Robert Antich, Clerk, Lake Circuit Court; Anna N. Anton; Evan Bayh, Governor, State of IndianaRandall T. Shepard, in his official capacity as a member of the Judicial Nominating Commission for the Superior Court of Lake County, IntervenorDefendantRichard J. Conroy, James Danikolas, Gerald N. Svetanoff, James J. Richards, Jeffrey J. Dywan, Richard W. Maroc, James E. Letsinger, William E. Davis, Mary Beth Bonaventura, Chief Judge, all in their official capacities as Judges of the Superior Court of Lake County, IntervenorDefendants.

No. 2:95-CV-288-RL.

United States District Court, N.D. Indiana, Hammond Division.

May 30, 1996.

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David C. Jensen, Eichhorn Eichhorn & Link, Hammond, IN, for plaintiff.

Office of Indiana Attorney General, Indianapolis, IN; J. Justin Murphy, Sr., Bamber Bosch and Banasiak, Hammond, IN; Edward H. Feldman, Highland, IN; J. Michael Katz, Katz Brenman and Angel, Merrillville, IN; Ronald E. Elberger, George T. Patton, Jr., Bose McKinney & Evans, Indianapolis, IN, for defendants.

ORDER

LOZANO, District Judge.

This matter is before the Court on the Verified Motion for Preliminary Injunction filed by Plaintiff on November 9, 1995; Intervening Defendants' Motion to Consolidate filed on January 18, 1996; Defendant Bayh's Motion to Dismiss or for Summary Judgment filed on February 2, 1996; Motion to Dismiss filed by DefendantsRudolph Clay, Ernest Niemeyer, and Peter Katic, on February 26, 1996; Intervening Defendants' Motion for Summary Judgment filed on February 26, 1996; Defendants' Motion for Summary Judgment filed by DefendantsRudolph Clay, Ernest Niemeyer, and Peter Katic, on February 26, 1996; and Defendant Anton's Motion for Summary Judgment filed on February 26, 1996.For the reasons set forth below, the Motion for Preliminary Injunction is DENIED IN PART and GRANTED IN PART; the Motion to Consolidate is DENIED; Bayh's Motion to Dismiss or for Summary Judgment is GRANTED; the Motion to Dismiss by Defendants Clay, Niemeyer, and Katic is GRANTED; the Motion for Summary Judgment by Clay, Niemeyer, and Katic is DENIED AS MOOT; and the other Motions for Summary Judgment are DENIED IN PART and GRANTED IN PART.

FINDINGS OF FACT

On January 25, 1996, the Court held a hearing on the Motion for Preliminary Injunction.These are the findings of the Court:

1.PlaintiffMichael W. Back, a white male, is an attorney licensed to practice law in Indiana.He practices law in Lake County and is a member of the Lake County Bar Association.In September 1993he was elected by the attorneys who reside in Lake County to participate as an attorney member in the Lake County Judicial Nominating Commission("JNC" or "the Commission").He served as secretary of the JNC during his tenure from September 1993 to September 1995.When elected, Back had expected to serve a 4-year term until September 1997.

2.Defendant, Evan Bayh, is the governor of Indiana.Defendants, Rudolph Clay, Ernest Niemeyer, and Peter Katic, are the Commissioners of Lake County.

3.Defendant, Anna N. Anton, is the Clerk of the Lake Circuit Court.The Clerk of the Lake Circuit Court coordinates the election of JNC attorney members.

4.Intervening Defendant, Randall T. Shepard, Chief Justice of the Supreme Court of Indiana, intervened in his capacity as a member of the JNC.Intervening Defendants, Richard J. Conroy, James Danikolas, Gerald Svetanoff, James J. Richards, Jeffrey J. Dywan, Richard W. Maroc, James E. Letsinger, James L. Clement, William E. Davis, and Mary Beth Bonaventura, are judges of the Superior Court of Lake County.

5.The Lake County JNC was established in 1973 pursuant to Indiana Code section 33-5-29.5-1 et seq.Whenever there is a judicial vacancy in Lake County Superior Court, the JNC submits a list of three nominees to the Governor, who then appoints one of the nominees to the judicial position.After appointment, the judge serves for two years.To serve beyond this initial term, the judge must run in a countywide retention election.

6.From 1973 until July 1995 the JNC consisted of seven members headed by the Chief Justice of the Indiana Supreme Court.The other six members consisted of three attorneys and three nonattorney members, all residents of Lake County.The attorney members were elected by fellow Lake County attorneys.The nonattorney members were appointed by the Governor.According to the law, the appointment of nonattorney members was to reflect the composition of the community.Attorneys could not serve as nonattorney members.

7.In July 1995, an amendment to the law imposed several changes in the operation of the JNC.Those changes include the imposition of race and gender quotas for JNC membership.The amendment requires that at least one of the attorney members and one of the nonattorney members be a minority.It also mandates that two of the attorney members be women, and the two others be men.The same gender restrictions apply to the nonattorney members.

8.The amendment also included other changes in addition to the race and gender quotas.The JNC now consists of nine members, including four attorney and four nonattorney members.The Lake County Commissioners, instead of the Governor, now appoint the nonattorney members.The amendment clarifies that salaried public officials can participate as attorney members of the JNC.The amendment now requires that the JNC consider the effect of racial and gender diversity on the quality of the judiciary when choosing nominees.Also, the amendment changed the manner in which attorney members were elected.Before the amendment, the Lake County attorneys could vote for only one candidate.Now the attorneys can vote for up to four different candidates.In effect, voters can cast up to four votes, but only for different candidates.The four candidates receiving the most votes become members of the JNC if they satisfy the race and gender quotas.

9.To implement these changes, the amendment ordered a new election of attorney members to be held on September 1995.New nonattorney members were appointed also in September 1995.

10.In June 1995, Back received a notification that his term as a member of the JNC would terminate prematurely so that a new election could take place under the new law.This new election forced Back out of the JNC in September 1995, rather than in 1997 as originally expected.

11.The election for the attorney members of the JNC under the new law took place in September 1995.Back ran for one of the positions, but he was not among the candidates receiving the most votes.He placed sixth in the number of votes received.

12.The Lake County Bar Association promoted the enactment of the amendment by the Indiana legislature.The Bar Association supported the amendment to the law as a response to a movement in the Indiana General Assembly which threatened to return to direct elections of judges in Lake County.The main concern of the Bar Association in supporting this legislation was to maintain the current judicial nominating system.

13.The Bar Association believed that a system of judicial nomination, as compared to judicial elections, results in a larger pool of qualified individuals interested in becoming judges and in a more independent judiciary.The Bar Association expressed two concerns with the system as operating before the amendment: (1) that the nonattorney members were named by the governor, giving him greater control in the nominating process, and (2) that the attorney members in the JNC did not reflect the racial and gender diversity of the population in Lake County.

14.The provisions in the amendment which removed from the Governor the power to appoint the nonattorney members and which increased the number of the JNC members were as important as to the Bar Association as the race and gender distribution requirements included in the amendment.

15.Prior to the amendment, women and minorities had been members of the JNC but never as attorney members.Although African-American, Hispanic, and women attorney candidates had run for the JNC positions, none were ever elected.

16.In the 1973 election, the first election held for JNC attorney members, two of the fifteen lawyer candidates were minorities (15%).In 1977, one of five candidates was a minority (20%).In 1981, two of ten candidates were minorities (20%).No female candidate ran for a JNC position before 1985.In 1985, of nine candidates one was a minority male, and one was a minority female (22% minority; 11% women).In 1989, of seven candidates one was a minority male, and one was a minority female (29% minority; 14% women).In 1993, three of seven candidates were minorities (43% minority).Of those three, two were women (29% women).

17.Between 1992 and 1995 about 10% of the lawyers in Lake County were minorities and about 20% were women.Before 1965, 1% of the Lake County attorneys were women and 4% were minorities.The 1990 census showed that women constituted 52% of the Lake County population and minorities 30%.

18.No evidence was introduced at the hearing that any intentional discrimination prevented women or minority attorneys from securing the signatures to participate in the election or from running in the election.No evidence was presented of intentional discrimination in the selection of nonattorney candidates.

19.No evidence was presented in the hearing that the JNC has acted discriminatorily in selecting judicial nominees to submit to the governor.In fact, nominees have included minorities and women.

20.Back filed this suit challenging the provisions of the law requiring that one attorney and one nonattorney...