Lake Co. opponents of judicial selection ask court to stop process to fill Boswell vacancy

In their lawsuit contesting judicial selection in Lake County, Hammond Mayor Thomas McDermott along with the city of Hammond filed on Friday a motion for preliminary injunction seeking to stop the Lake County Judicial Nominating Commission from moving forward with the process to select a replacement for the late Judge Diane Boswell, who died in October.

The complaint in City of Hammond, et al. v. Lake County Judicial Nominating Commission, 2:21-cv-160, was filed after Gov. Eric Holcomb signed House Enrolled Act 1453. Under the new law, mandatory attorney input was eliminated in the judicial selection process in Lake and St. Joseph counties, and the governor and respective county commissioners were given sole power to choose all members of the nominating commissions.

The bill, authored by Rep. Michael Aylesworth, R-Hebron, drew heavy opposition from lawyers, judge and bar associations. But Aylesworth described it as a “reset” of the process, saying he’d heard from lawyers that judicial selection in the northern Indiana counties had become politically biased.

McDermott and the other plaintiffs assert the entire judicial selection process violates the Voting Rights Act of 1965 because it disproportionately prevents minorities from electing their superior court judges. Judicial selection — in which a commission compiles a slate of nominees to be sent to the governor, who then picks one to serve on the bench — is used in Lake, St. Joseph, Allen and Marion counties, which all have high minority populations. The residents of those counties are later given the ability to vote on the selection, but only on whether to retain the nominee.

The memorandum in support of the motion for preliminary injunction asserts that while 82% of white Indiana residents can vote for their judges, only 34% of Black residents have that same right, and about 49% of all minorities are denied full voting rights.

“… Indiana’s two-tiered voting system for judges (one for most whites; the other for most minorities) violates the VRA,” the plaintiffs state in their memorandum.

Earlier this month, the Lake County JNC opened applications to fill the vacancy left by Boswell’s death.

But the plaintiffs are asking the U.S. District Court for the Northern District of Indiana to preliminary enjoin the nominating process in order to give the Indiana General Assembly “the opportunity to enact a judicial voting system in Lake County that does not violate the VRA.” They argue the simplest remedy would be allowing Lake County residents to vote for judges of the superior court.

In their memorandum, the plaintiffs cite Bradley v. Work, 154 F.3d 704, 706 (7th Cir. 1998), which held the VRA applies to judicial retention elections in Lake County. That ruling, the plaintiffs contend, is important in underscoring that Section 2 of the Voting Rights Act applies to “political processes leading to nomination or election” of a candidate or nominee.

“That is exactly what is at issue here — the nomination process in Lake County (through the JNC to Governor, but only in high minority counties) that leads to a retention up or down vote of the nominee selected by the governor and not an open primary and general election with other candidates as in the other 88 counties,” the plaintiffs state in the memorandum. “… The VRA requires such process to be ‘equally open’ and precludes minorities from being given ‘less opportunity’ to participate. The nomination and election processes for judges in Indiana are certainly not ‘equally open’ because a majority of minorities in Indiana only get to vote years after the fact (and in a different and unequal retention vote), which is certainly ‘less opportunity’ to participate.”

In October, the Northern Indiana District Court granted the state’s unopposed motion to intervene. The state noted that because the constitutionality of the state statute, Indiana Code § 33-33-45-28, and HEA 1453 are being challenged, Federal Rule of Civil Procedure 5.1(a)(1) allows the attorney general to join the case.

The plaintiffs are represented by Bose McKinney & Evans LLP. The defendants are represented by the Indiana attorney general.

Last month, Holcomb named Heather Delgado of Barnes & Thornburg, David Wickland, a solo practitioner, and Todd Williams, a nonlawyer, to the Lake County JNC. The county commissioners had previously appointed Alfredo Estrada of Burke Costanza & Carberry, Brandy Darling of the Lake County Prosecutor’s Office and Aimbrell Holmes, administrator of the Gary City Court, to the commission.

In St. Joseph County, Holcomb’s appointments to the local JNC include Michael Misch of Anderson Agostino & Keller, Katy Wrona, a solo practitioner, and Sean Hall, a nonlawyer. The county commissioners have appointed Dr. Theresa Cruthird of St. Joseph Regional Medical Center, Joseph Grabill of Berkshire Hathaway HomeServices and Jamie O’Brien, an attorney with O’Brien & Telloyan.

IL editor Olivia Covington contributed to this report.

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