Doe v. JUDICIAL NOMINATING COM'N

• Decision Date: 09 November 1995
• Docket Number: No. 95-8625-CIV.,95-8625-CIV.
• Citation: 906 F. Supp. 1534
• Parties: Pat DOE, Plaintiff, v. The JUDICIAL NOMINATING COMMISSION FOR the FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, Defendant.
• Court: U.S. District Court — Southern District of Florida

906 F. Supp. 1534

Pat DOE, Plaintiff, v. The JUDICIAL NOMINATING COMMISSION FOR the FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, Defendant.

No. 95-8625-CIV.

United States District Court, S.D. Florida.

November 13, 1995.

Nunc Pro Tunc November 9, 1995.

COPYRIGHT MATERIAL OMITTED

James K. Green, West Palm Beach, Florida, Susan Stefan, Coral Gables, Florida, for Plaintiff.

Elaine Thompson, Assistant Attorney General, West Palm Beach, Florida, for Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

HURLEY, District Judge.

Florida state trial judges are either elected or appointed. When a judicial vacancy occurs between elections, the governor, pursuant to state constitutional mandate, initiates a selection process in which a judicial nominating commission ("JNC") solicits and reviews applicants, and then submits at least three nominees to the governor. Plaintiff is an attorney who responded to a public solicitation from the JNC for the Fifteenth Judicial Circuit. After reviewing the JNC's application form, plaintiff filed this action for injunctive and declaratory relief, asserting that a series of questions concerning physical and mental health violate the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. For the reasons described below, the court concludes that the disputed questions are overinclusive and, therefore, violate the ADA. Consequently, the JNC is enjoined from utilizing the disputed questions or the answers given in response thereto.

I. FACTS

When a vacancy occurred on the Circuit Court for the Fifteenth Judicial Circuit (Palm Beach County), the Governor of Florida directed the JNC for this circuit to initiate an advertising and screening process as required by the Uniform Rules of Procedure for Circuit Judicial Nominating Commissions ("Uniform Rules"). Section 1 of these rules provides that the JNC "shall actively seek, receive and review the approved background statements submitted by those who voluntarily request consideration...." Uniform Rules, § I. It further provides that the JNC "shall require completion of the application form attached hereto ... which shall include a waiver of confidentiality of all material necessary to adequately investigate each applicant." Ibid.

The goal of the JNC is to ensure that each nominee recommended to the Governor "meets all constitutional and statutory requirements and is fit for appointment...." Uniform Rules, § IV. The constitutional and statutory standards for nomination to the office of circuit judge are that the nominee be a member of the bar for at least five years, an elector (registered voter) of the State of Florida, and a resident of the territorial jurisdiction of the court. Fla. Const. art. V, § 8; see Instructions for Application for Nomination for Judgeship. Fitness is defined as, but not limited to, personal attributes such as integrity, sobriety, moral conduct, competency, and expertise; and judicial attributes such as patience, decisiveness, industry, and ability to handle judicial power. Uniform Rules, § IV.

The JNC application form was formulated to gather relevant information to facilitate the screening process. Plaintiff, however, contends that questions 10-13, which concern an applicant's physical and mental health, violate the ADA. The questions are as follows:

10. What is the present state of your health?

11. Do you have any impairment of eyesight, hearing, or other debilitating handicap or disease? If so, please describe.

12. Have you had any hospital confinement, or serious physical illness during the past five years? If yes, give details and identify your attending physician(s), the name(s) of any hospital(s) or other institution(s) to which you were admitted if any and the date(s) of hospitalization(s).

13(a). Have you ever been treated for or suffered from any form of mental illness? If so, give details including names and addresses of treating physicians, psychologists, and/or hospitals, or other facilities involved including dates of treatment or confinement.

13(b). Have you been treated for or suffered from any form of emotional disorder or disturbance or otherwise been treated by psychologists, psychiatrists or other mental health care professionals, in the last five years? If so, give details including names and addresses of those persons in institutions consulted or providing treatment including dates of treatment.

13(c). Have you ever been addicted to or dependent upon alcoholic beverages or any other drug? If so, give dates of use or dependency and describe treatment, if any, giving names of physicians and other persons furnishing treatment.

Every applicant is required to answer these questions completely and truthfully. Furthermore, the applicant must sign a certificate that provides for release of "any information, files, or records" requested by the JNC with the understanding that all information received "shall be open to the public." Application, at 16. This disclosure requirement derives from the state constitutional provision creating the JNC and from Florida's commitment to conduct its business in the sunshine. See Fla. Const. art. V, § 11(d); Uniform Rules, § III.

Plaintiff's complaint alleges that he or she resides in Palm Beach County, is an elector of the State of Florida, and is a lawyer of more than twenty years membership in the Florida Bar. By affidavit filed under seal to protect plaintiff's privacy, plaintiff alleges facts which indicate a history of suffering and/or having been treated for various mental, physical, and emotional conditions.

II. ANALYSIS

Experts in the field have suggested that "disability is not really the cause of an undignified, harsh life. The real cause is lack of access to buildings, jobs, transportation; segregation and denial of services." Mary Johnson, Jerry's Kids, THE NATION, Sept. 14, 1992, at 232. Congress, recognizing the truth of this assertion, took a monumental step toward ending such discrimination by enacting the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12101, et seq. The underlying premise to this legislation is that it is preferable to provide access to opportunities rather than to "take care of" people with disabilities. See generally Robert L. Mullen, The Americans With Disabilities Act: An Introduction for Lawyers and Judges, 29 Land & Water L.Rev. 175 (1994). The Act's goal is to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). So strong was Congress's commitment to achieving this goal, that in addition to relying on its Commerce Clause power, it expressly invoked its authority to enforce the Fourteenth Amendment. 42 U.S.C. § 12101(b)(4). As will be seen hereafter, this power has special significance to the case at bar.

Title II of the Americans with Disabilities Act prohibits discrimination against disabled persons by public entities. 42 U.S.C. §§ 12131-50. It provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by any such entity." 42 U.S.C. § 12132. A "public entity" is defined as "any department, agency ... or other instrumentality of a State...." 42 U.S.C. § 12131(1)(B).

As defined by the ADA, "discrimination" includes, inter alia, "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless ... the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the ... employer's business." 42 U.S.C. § 12112(b)(5)(A). "Otherwise qualified" means that the individual, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8).

A. Standing

As an initial consideration, the JNC questions plaintiff's standing. To have standing under the ADA, a plaintiff must be a "qualified individual with a disability." 42 U.S.C. § 12131(2); 28 C.F.R. § 35.130(a). The complaint establishes that plaintiff satisfies the constitutional requirements for appointment to the circuit court. In addition, the affidavit, filed under seal, establishes that plaintiff has, or will be perceived as having had, a disability. Furthermore, case law establishes that a plaintiff need not be rejected by a governmental screening authority to have standing to contest potentially overinclusive questions. See Clark v. Virginia Board of Bar Examiners, 880 F.Supp. 430, 442 (E.D.Va.1995); Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1494 (S.D.Fla.1994). Thus the court finds that plaintiff Doe has standing to bring this action.

B. Tenth Amendment

The JNC, represented by the Florida Attorney General, contends that the Tenth Amendment to the U.S. Constitution precludes application of the ADA to any part of the process for selecting state judges. In making this argument, the JNC does not suggest that it is free to discriminate. To the contrary, Governor Chiles, both in person and through his counsel, has repeatedly affirmed Florida's commitment to eradicating all forms of discrimination in the judicial selection process. The JNC simply contends that the selection of state judges is a traditional sovereign function upon which Congress cannot intrude and upon which, in fact, Congress did not intend to intrude.

The JNC predicates its argument on two cases: Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); and Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Both cases address the difficult issue of the proper balance between federal/state power. The question in Gregory was whether a state law requiring judges to retire at age 70...