Sex, Lies and Supreme Court Justices

It's the high court of Indiana, the court our state constitution vests with supreme judicial power. As such the Supreme Court of Indiana is the final interpreter of our state constitution and laws. It gives meaning and effect to the words "all people are created equal." It is our system's check on an over-reaching legislative or executive branch which would deny equality or justice to any among us. Unfortunately, the people who make up this court are susceptible to the same prejudices of any other person and can fail to live up to the high ideas and ideals embodied in our constitution. At no point in our state's history was this more apparent than a bizarre series of events occurring in October, 1988, which spewed deep-seated bigotry on the high court. What made this sad chapter in Indiana history so unusual was the fact that the perpetrators and the victim were all justices of the Supreme Court. As I stated in my earlier post, "Why Inequality Exists Under Our Current Law?", judges "[s]ometimes . . . act fairly and in the spirit of our constitution; other times they act out of self-interest and personal prejudice." And noone demonstrated the latter more than former Supreme Court Justice Alfred Pivarnik when he would accuse none other than the Court's Chief Justice of being a drunken, pot-smoking queer.

Our state's Supreme Court is made up of just five justices. They are chosen by the Governor from among three candidates selected by the seven-member Judicial Nominating Commission each time a vacancy occurs. Three members of the commission are chosen by the Governor, the state's attorneys elect three members, and the Chief Justice of the Supreme Court or his designee serves as the commission's chairman and seventh member. Once appointed by the Governor, the justices face the voters in a retention election once every ten years. The commission also chooses from among the five justices the Chief Justice of the Supreme Court, who serves a term of five years and may be re-appointed to successive five-year terms by the commission. Our current Chief Justice, Randall Shepard, was first appointed to the Court at the age of 38 in 1985 by former-Governor Robert Orr. The Commission tapped Shepard just two years later to become Chief Justice, replacing Richard Givan, and he has held the position continuously since March, 1997.

Justice Alfred Pivarnik, the son of a pipefitter, was born in Valparaiso, Indiana in 1925 at the height of the Ku Klux Klan's reign over Indiana politics and government. Pivarnik, a decorated veteran of World War II, served as Porter County Prosecutor and circuit judge before his appointment to the Supreme Court in 1977 by former Indiana Governor Otis Bowen. Ironically, Pivarnik was the first justice appointed to the Court under the newly adopted "nonpolitical merit system." Prior to this time the justices had been elected by the state's voters. At the time of his appointment, no black, woman or Jew had ever held a permanent seat on the Court. Most of the justices elected under the old system were typically from the rural areas of the state and adopted a very conservative judicial philosophy. Pivarnik adopted the same conservative judicial philosophy of his earlier elected brethren. As the noted journalist Joseph T. Hallinan wrote in the Indianapolis Star at the time, Pivarnik fervently believed that [c]hanging the law was the legislature's business, not the court's . . . [f]or judges to make public policy through their decisions, he felt, was not only wrong, it was an erosion of democracy." According to Hallinan, "family and religion" were very important to Pivarnik.

Randall Shepard could not have been more different than Pivarnik. Their similarities ended with their affiliation with the Republican Party. Shepard, a native of Evansville, is an Ivy-leaguer. After attending Princeton University, he headed off to Yale Law School where he counted among his friends and classmates, Bill and Hillary Clinton. After earning a law degree and spending some more time with post-graduate studies out East, he returned to his roots in Evansville. He became a trial court judge in 1980 where he served until his family's close friend Governor Robert Orr, also of Evansville, appointed the young bachelor to the Supreme Court.

Shepard's predecessor, Richard Givan, had served longer than any other Chief Justice. Prior to Shepard's appointment, Givan had offered to step down as Chief Justice in 1984 if the Judicial Nominating Commission would appoint his like-minded friend as his successor. The Commission thought otherwise after interviewing Justice Pivarnik for the coveted position. According to Hallinan's reporting in the Indianapolis Star one commission member asked Pivarnik what he intended to do to get more women and blacks on the bench. Pivarnik is reported to have answered, "Why, there's no need to do anything. Anybody can apply: it's open." Pivarnik's sentiment mirrored that of Givan, who was heard on many occasions to respond to similar questions that he was a Quaker and that noone was more of a minority than him. The Commission felt the same way about Pivarnik's appointment as he felt about getting more blacks and women on the bench. It informed Givan that it did not intend to act on the appointment of his replacement, meaning that the Court's most senior justice, Donald Hunter, would ascend to the position by default rather than Pivarnik. Givan then withdrew his resignation and served another three years. When he did step down from the position, the Commission chose Shepard over Pivarnik for the post, embittering Pivarnik.

Upon assuming his new position, Shepard almost immediately set the Court on a new course. He raised the profile of the Court and emphasized basing important constitutional decisions on Indiana's constitution rather than always deferring to the federal constitution. Shepard argued that the rights set out in Indiana's Bill of Rights were more expansive than those provided in the federal constitution, and that it was the role of the Court to "breathe life" into them. The Court took a less harsh view of the rights of civil litigants and criminal defendants, both of which only further angered Pivarnik. Eventually reaching a boiling point, Pivarnik seized on a television station's reporting on Indiana's changing court system to tell the "real" story about Shepard according to Joseph Hallinan.

During Shepard's nomination proceedings before the Commission, allegations were brought by several people that Shepard had been a heavy drinker, smoked marijuana and made homosexual advances towards other men while serving as a trial court judge. Then-Chief Justice, Givan became privy to the accusations as a member of the Commission. Givan disclosed the accounts to Pivarnik. According to Hallinan's account in the Indianapolis Star Pivarnik with the assistance of other unnamed persons hired a private investigator, who began rummaging through Shepard's discarded garbage and interviewing old acquaitances of Shepard's in Evansville. Armed with what he claimed was solid proof, Pivarnik made his move on Shepard just ten days before Shepard was to stand for a retention election before the state's voters. Pivarnik appeared in an on-camera interview conducted by WTHR reporter Tom Cochrun during which he leveled the scandalous charges against Shepard and further charged that Governor Orr had initiated a cover up of Shepard's alleged wrongdoings to secure his appointment. After the allegations aired, Givan publicly supported Pivarnik's airing of his colleague's dirty laundry, noting that the Supreme Court would have problems if Shepard was retained, and that the witnesses against Shepard appeared credible to him.

Governor Orr saw Pivarnik's charges for what they were: "Pure vengeance." According to a close aide to Governor Orr at the time, Governor Orr believed it was irrelevant whether Shepard was a homosexual; the only relevant issue to Orr was whether Shepard had broken the law. Orr sought to confront Pivarnik face to face to discuss his charges, but Pivarnik dodged him. After Orr and his staff mounted a successful counter-attack and Shepard appeared publicly to deny the charges, Pivarnik held a press conference to show his "smoking gun" evidence. As it turned out Pivarnik's evidence was more dud than smoking gun. The public was unimpressed. A few days later the voters of Indiana voted to retain Shepard with 62% of the vote, a larger retention than Pivarnik had received a few years earlier.

What makes this chapter of Indiana history so disturbing is the fact that both Pivarnik and Givan as members of the state's high court believed that homosexuality should be a disqualification to service on the Court. Pivarnik said, "I know I subject myself to severe criticism for that, but it's something I believe." Although Shepard got married after assuming his current position, talk of his sexual orientation persisted. In Pivarnik's mind there wasn't any question about it--Shepard was a homosexual. He was often heard to say to ask any man on the street in Shepard's hometown--"people from Evansville wouldn't say there was any question about it." Pivarnik and Givan were convinced that if the voters believed Shepard was a homosexual, they would not retain him. Fortunately, the voters thought otherwise. As much as this sad tale revealed the two's bigotry toward homosexuals, it also revealed the extent to which judges can warp our judicial system and the fundamental notion embodied in our constitution that all persons are created equal. It also demonstrates just how far we have left to go to achieve true equality in our state and in our nation for all people. Pivarnik retired from the Court in 1990 due to failing health and has since died. Givan did not step down until 1995. Though they are no longer a part of our high court, a dark stain has remained in their path, waiting to be cleansed by justices who respect and believe in the principle of equality set down in our constitution.

The editor pays tribute to Joseph T. Hallinan for his in-depth and inciteful reporting on the events reported in this story. A former Indianapolis Star reporter, the highly respected Hallinan now works as a staff reporter for the Wall Street Journal. The Indianapolis Star could sure use a reporter or two of his quality on their staff today.