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News & Developments
NY Court of Appeals Gets First African American Female Judge
On May 7, New York Governor Andrew M. Cuomo announced that the state senate had confirmed his April 5 nomination of Sheila Abdus-Salaam to serve as a justice on the New York State Court of Appeals. Abdus-Salaam will be the first African American woman to hold that position.
Justice Abdus-Salaam graduated from Columbia University School of Law, and began her legal career by taking a job at the East Brooklyn Legal Services center shortly thereafter. From there, she served as assistant attorney general in the Civil Rights and Real Estate Financing Bureaus, and later held the general counsel position in the New York City Office of Labor Services. Abdus-Salaam began her judicial career as a judge on the Civil Court of the City of New York in 1992. Later, she ran and was elected as a Supreme Court Justice in 1993 and 2007. Prior to her recent appointment, Salaam served as an associate justice of the Appellate Division of the New York State Supreme Court, First Department, where she has worked since 2009.
Commenting on her confirmation, Abdus-Salaam noted, “It is a true privilege to be confirmed by the New York Senate today to serve on the highest court in the Empire State. I thank the governor for his nomination and for placing his trust and confidence in me. Governor Cuomo has made it a priority to attract the best talent to public service and to make anew the great public institutions of this state, and I am honored and humbled to serve the people of New York on the Court of Appeals. I look forward to joining my colleagues on the bench, and to continuing to make the fair application of the law the hallmark of my judicial career.”
Prior to her appointment, the New York State Bar Association (NYSBA) indicated that Abdus-Salaam was “well qualified” to fill the vacancy on the Court of Appeals. NYSBA President Seymour W. James commented, “We applaud Governor Cuomo for nominating someone so eminently qualified to serve. Whether representing indigent clients as a young lawyer, protecting civil rights as an assistant attorney general, or adjudicating matters from the bench, Justice Abdus-Salaam has demonstrated wisdom, intellect, and a commitment to justice.”
Minority-rights advocacy groups applauded the move as a positive step toward increased judicial diversity. President William Little of the Capitol District Black and Hispanic Bar Association stated, “We are happy and proud of the confirmation of Judge Abdus-Salaam to the Court of Appeals and commend the governor on this appointment which highlights his commitment to a diverse judiciary reflective of the state.” A representative from the Women’s Bar Association of the State of New York said the confirmation of Justice Abdus-Salaam “serves not only as inspiration to all professional women, but, renders the composition of the court more reflective of the legal profession and our society.”
Keywords: litigation, minority, trial lawyer, judicial nomination, confirmation, Governor Cuomo, African American, judicial diversity, New York State Court of Appeals, NYSBA
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
EEOC Lands Historic $240 Million Verdict
Last month, an Iowa jury returned a $240 million verdict in favor of the Equal Opportunity Employment Commission (EEOC) in a disability discrimination and abuse case. The award is the largest won by the EEOC in its nearly 50-year history.
The underlying action was a suit brought by the EEOC against Hill County Farms, d/b/a Henry’s Turkey Service (HTS), on behalf of 32 men with intellectual disabilities. The EEOC accused HTS of subjecting each plaintiff to severe abuse and discrimination through actions taken from 2007 to 2009. However, according to the EEOC, the mistreatment of these individuals actually spanned a period of 20 years. The jury agreed with the EEOC and granted each of the men $5.5 million in compensatory damages, $2 million in punitive damages, and $1.3 million for disability-based wage discrimination.
The allegations brought against HTS were particularly heinous. The EEOC stated that while working at a turkey processing plant, the plaintiffs were subjected to beatings, denied medical care, and forced to live in “deplorable and sub-standard” bunkhouse conditions. Sometimes, the men would be punished for misbehavior — at least one was handcuffed, and another was forced to carry heavy weights around. The abuse wasn’t entirely physical, either; the men were often verbally berated and called names such as “retarded” and “dumbass.”
Employers are prohibited from abusing disabled employees by the Americans with Disabilities Act, legislation which makes workplace discrimination on the basis of disability illegal. Here, the EEOC argued that the intellectual disabilities of the men prevented them from recognizing their rights and objecting to the abusive behavior. Though the EEOC did try to settle this case through its typical conciliation process, they were forced to file suit after settlement talks fell through.
EEOC General Counsel David Lopez noted, “This historic verdict marks one of the EEOC’s finest moments in its ongoing efforts to combat employment discrimination, especially discrimination against vulnerable and historically underserved populations. The fact that the jury rendered the largest verdict ever obtained by the EEOC says volumes about the severity of the violation, and it illustrates this agency’s resolve to vindicate the rights of all discrimination victims.”
One of the jurors, Robin Griebel of Davenport, Iowa, expressed her belief that the award would let the plaintiffs know that “there are people out there that do care” about them. Further, Griebel hoped that the verdict would send a message to employers that such abusive behavior “cannot happen again.”
Keywords: litigation, minority, trial lawyer, disabled employees, Americans with Disabilities Act, EEOC, discrimination, abuse, verdict
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
Rhode Island Becomes 10th State to Legalize Gay Marriage
On May 2, Rhode Island Governor Lincoln Chafee signed a bill allowing gay marriage within the state, making it the 10th state in the country to do so. That the bill passed in the legislature seemed to be no small feat—the measure to allow same-sex marriage had been introduced in the Rhode Island House of Representatives every session since 1997. However, once put to a vote, the bill passed easily, going 26-12 in the State Senate, and 56-15 in the State House.
Speaking to the state’s gay and lesbian community, Chafee stated, “I know that you have been waiting for this day to come. I know you have loved ones that dreamed this would happen but did not live to see it. But I am proud to say that now, at long last, you are free to marry the person you love.” He cited moral as well as economic reasons for his support of the measure, which had just passed a state House vote earlier that day, commenting, “The talented workers who are driving the new economy—young, educated, and forward-looking—want to live in a place that reflects their values. They want diversity, not simply out of a sense of justice, but because diversity makes life more fun.” Chafee had previously supported gay marriage as a Senate Republican back in 2004.
The passage of the measure unites the six New England states (Vermont, New Hampshire, Maine, Massachusetts, and Connecticut) in allowing the practice. Other states, including New York, Iowa, Maryland, and Washington, also permit gay marriage. The states of Minnesota, Illinois, and Delaware are expected to make decisions on the issue soon. Currently, 30 state constitutions still define marriage as being between a man and a woman.
Opponents of gay marriage voiced their opposition to the vote to no avail. National Organization for Marriage Rhode Island Executive Director Christopher Plante attempted to convince legislators that the bill required amendment to protect small businesses and other religious-based institutions opposed to gay marriage from discrimination-based lawsuits. Additionally, Plante argued, “Children deserve to know and be cared for by a mom and dad. This law will intentionally deny children one or the other. The full impact may not be seen next week or next year, but our children will be the ones who pay the price for this decision.” Ultimately, these concerns were not enough to delay the bill’s passage.
State House Speaker Gordon Fox commented on the passage, stating, “We are truly social creatures, and that is the essence of this legislation. You are free to love and commit to the person of your choice no matter what your gender may be … And the foundation of that is a very simple, yet probably the most powerful, word in the English language: Love.”
Keywords: litigation, minority, trial lawyer, same-sex marriage, legislature, Rhode Island, Lincoln Chafee
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
April 17, 2013
Supreme Court Hears Arguments on Gay Marriage
In late March, the U.S. Supreme Court heard two days of oral arguments on two cases involving the legalization and recognition by the federal government of gay marriage.
Petitioners in the first case, Hollingsworth v. Perry, seek to overturn California’s Proposition 8, a voter-approved ban on marriage other than between a man and a woman. The issued in Hollingsworth is whether the Equal Protection clause of the 14th Amendment prohibits Californians from enacting laws prohibiting gay marriage.
The second case, United States v. Windsor, challenges the constitutionality of the Defense of Marriage Act (DOMA), a 1996 federal law that defines marriage exclusively as a union between a man and a woman. DOMA also prohibits married same-sex couples from receiving federal benefits related to marriage, such as tax deductions and credits, and survivor benefits in estate planning. During the hearing in Windsor, Justice Ginsburg opined that because DOMA denied as many as 1,100 federal marriage benefits, the law created two types of marriage: “Full marriage and skim-milk marriage.”
Currently, 41 states prohibit same-sex marriage. Nine states allow same-sex marriage and another nine states permit civil partnerships. A recent CNN international poll revealed that 53 percent of Americans now support same-sex marriage and 56 percent believe that the federal government should legally recognize same-sex marriages.
The debate over gay marriage has prompted fierce arguments from both sides. Todd Bluntworth, a proponent of gay marriage who appeared at a support rally supporting the cause, is reported by the media to have said that “[w]e are not asking for anything more than our neighbors, friends, and family, but certainly expect no less.” In contrast, conservative Nashville talk show host Carl Boyd Jr. is reported to have expressed support for opposition to gay marriage. He is further reported to have said: “If you want to get married, go to one of the states that allows gay marriage . . . . Stop trying to force your agenda down our throats. Quit trying to bully the American people with the homosexual agenda.”
A ruling by the Supreme Court in favor of gay marriage could provide momentum to what some view is a cultural shift in support of the recognition of marriage between members of the same sex. It could also reduce discriminatory attitudes toward same-sex couples. Ara Gershengorn, a partner with the Boston-based law firm of Foley Hoag stated “[t]he court has a really important role here and its job is to protect minorities . . . It may be that the political process will get there . . . But the job of the court is to determine if this is violating the constitutional rights of these individuals today.”
Recordings of the oral arguments in the case are available here and here.
Keywords: litigation, minority, trial lawyer, same-sex marriage, Supreme Court, constitutionality, DOMA, federal benefits, Hollingsworth v. Perry, United States v. Windsor
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
April 15, 2013
Study Reveals Unintended Effects of Diversity Programs
A new study on the effect of diversity training programs in corporate work environments revealed some surprising results. For one thing, it found that these programs tend to convince people that work environments are fair even when evidence of hiring, promotion, or pay disparities demonstrates otherwise. Additionally, it found that study participants (all of whom were white), had a tendency to downplay the seriousness of discrimination complaints against companies that had diversity programs in place.
Cheryl Kaiser, lead author of the study and associate professor of psychology at the University of Washington, expressed concerns that corporate diversity programs create an illusion of tolerance and understanding. Kasier noted, “Our fear is that companies may prematurely stop thinking about diversity among their workers because they’ve credentialed themselves with these programs …. Our findings suggest that diversity programs can be window dressing—even those that do very little to increase diversity may still be perceived as effective.”
The study was also very concerned with the effect that the existence of a diversity initiative could have on a plaintiff suing a company for discriminatory conduct. Research examining 1,000 federal civil rights cases revealed that judges in these suits “increasingly showed deference to organizations’ diversity management structures” as a means of establishing “an organization’s compliance with civil rights law.” The problem, Kaiser opined, is that most of these programs are not tested for efficacy. As a result, she noted that “[s]ome judges assume that diversity programs effectively address employees’ complaints, without questioning whether those programs work.”
Further, the study demonstrated that simple wordplay by company human resources personnel could also instill a sense of fairness and equity that was otherwise nonexistent. For example, a hypothetical company that had a “diversity statement” instead of a “mission statement” caused study participants to express beliefs that women and minorities were being treated fairly despite hiring, promotion, and salary practices demonstrating otherwise.
Kaiser recommended that companies review their diversity programs to see if they had any real effect on the hiring, promotion, and retention of women and minority employees. She noted, “[Companies] can learn more by mining their own data rather than assuming that because a program is there that it works . . . . If companies examine diversity-related outcomes, they will be in a better position to recognize diversity approaches that are successful and those that are not.”
Keywords: litigation, minority, trial lawyer, diversity programs, hiring, promotion, retention, effectiveness
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
April 15, 2013
Supreme Court to Hear Second Case Involving Affirmative Action
In late March, the U.S. Supreme Court granted certiorari in a matter from the Sixth Circuit involving affirmative action in higher education: Schuette v. Coalition to Defend Affirmative Action, 701 F.3d 466 (6th Cir. 2012) cert. granted 2013 U.S. Lexis 2504, 81 U.S.L.W. 3539 (2013). Certiorari was granted while a decision from the Supreme Court is pending in Fisher v. University of Texas.
While the petitioner in Fisher is challenging the use of race as a factor in admission decisions made by the University of Texas, the sole issue in Schuette was whether a Michigan plebiscite prohibiting the state’s public colleges from using race or ethnicity in admission decisions violated the equal-protection guarantees under the U.S. Constitution. A majority of the Schuette court found that the Michigan plebiscite known as Proposal 2 violated the Equal Protection Clause by removing the ability of university officials to consider race as a factor in admissions decisions, a factor that is expressly allowed under the Supreme Court’s dual 2003 decisions in Gratz v. Bollinger, 539 U.S. 244 and Grutter v. Bollinger, 539 U.S. 306.
In finding Proposal 2 unconstitutional, the Sixth Circuit noted that the plebiscite required proponents of affirmative action programs to amend the state constitution to permit the use of factors that are otherwise permitted under the federal constitution. The Sixth Circuit therefore concluded that Proposal 2 had a racial focus that placed special burdens on racial minorities while leaving those advocating nonracial factors in admissions with less-onerous avenues to implement those factors. In so doing, the Sixth Circuit concluded that “[t]he existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” Schuette, 701 F.3d at 470.
Commenting on the case, UCLA law professor Jonathan Varrat expressed doubts that the Supreme Court would declare all state bans on affirmative action unconstitutional, stating that such a move would be “shocking.” Still, the issue is ripe for review given the conflict between circuits. In 2012, the Ninth Circuit upheld California’s voter-approved ban on affirmative action known as Proposition 209. In so doing, the Ninth Circuit concluded that the measure did not violate appellants’ equal protection rights.
In responding to the cert petition in Schuette, Shanta Driver, chairman of the affirmative action advocacy group By Any Means Necessary, stated, “We now have the chance to strike down Michigan’s Proposal 2, California’s Proposition 209, and the other five anti-affirmative action laws that have excluded tens of thousands of black, Latino, and other minority students from universities across the country.”
Justice Elena Kagan has recused herself from both Fischer and Schuette, most likely because of her role as solicitor general before joining the Supreme Court. Her recusal leaves the possibility of a 4-4 split on the Supreme Court with respect to both cases, a possibility that would result in both cases being affirmed.
For more information on the affirmative action cases before the U.S. Supreme Court, check out these articles:
http://blogs.lawyers.com/2013/03/supreme-court-affirmative-action-cases/
http://www.insidehighered.com/news/2013/03/26/supreme-court-takes-another-case-involving-affirmative-action-and-higher-education
http://dailybruin.com/2013/04/01/supreme-court-to-hear-michigan-affirmative-action-suit/
Keywords: litigation, minority, trial lawyer, affirmative action, Supreme Court, certiorari, higher education, admission decisions, race, equal protection, Fischer, Schuette
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
April 10, 2013
Federal Court Rules on Motion to Dismiss Discrimination Action
A federal district court in the Southern District of Texas has permitted the U.S. Equal Employment Opportunity Commission (EEOC) to proceed with much of its employment discrimination and retaliation action against Bass Pro Outdoor World LLC and Tracker Marine LLC, entities which the EEOC alleges are controlled by Bass Pro, Inc., a Missouri-based retailer of hunting, fishing and camping equipment.
In a 247-page second amended complaint, the EEOC alleges that the Bass Pro World LLC and Tracker Marine LLC (collectively, defendants) have a nationwide operating procedure of denying employment to black and Hispanic applicants. Memorandum and Order at 2. The EEOC further alleges that the discriminatory operating procedures “emanates from defendants’ top management—specifically, from owner and founder, Johnny Morris” who in response to a question concerning racial quotas presented in a meeting of store general managers allegedly said: “this company will never have a quota system because that’s not the kind of people I want working in my stores.” Id. The EEOC asserts that the “defendants’ hiring preferences for whites was followed by the store managers nationwide” who “were asked to hire applicants who fit “the profile.” Order 2. In addition to claims of employment discrimination, the EEOC also asserts claims for retaliation and the failure to preserve records that are relevant to whether unlawful employment practices have been or are being committed. Order at 2-3.
In denying the defendants’ attempt to dismiss the discrimination claims, federal district judge Keith P. Ellison noted that “[t]he EEOC has worked diligently to list almost 200 potential claimants who . . . are black and Hispanic applicants who have been denied employment by defendants.” Order at 5. As to the alleged statement of John Morris, the court noted that while it “reflects racial animus” it does not constitute direct evidence of discrimination because it is not linked to any particular employment decision by the defendants. See Order at 6-8. In so doing, the district court noted that while the EEOC has not pled a prima facie case for the named claimants, it had nonetheless pled a plausible claim for employment discrimination sufficient to withstand a motion to dismiss. Order at 9-10. The court also denied the defendants’ attempt to dismiss the EEOC’s claims for systemic discrimination. Order at 16-21.
Additionally, while the court dismissed two of the five retaliation claims asserted by the EEOC, the court nonetheless denied the defendants’ attempt to dismiss the remaining three claims. Order at 10-11. Likewise, the court denied the motion to dismiss the EEOC’s record keeping claim. Order at 21.
In an article published on GreenwichTime.com, Bass Pro Shops reportedly said that “it is confident that the EEOC’s allegations will be proven false” and that “the company . . . has a history of full compliance with employment discrimination and has policies and procedures in place to fulfill that mission.”
A copy of the district court’s Memorandum and Order is available here.
Keywords: litigation, minority, trial lawyer, employment discrimination claims, EEOC, retaliation claims
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
April 1, 2013
Does the NYPD Use Stop-and-Frisk Quotas?
In mid-March, trial began in a crowded Manhattan federal courtroom in Floyd v. New York City, a federal class action in which plaintiffs allege that the New York Police Department imposes arrest quotas on its officers, in violation of the U.S. Constitution. These quotas allegedly result in the police routinely stopping and frisking people without probable cause in an effort to meet the quotas set by the NYPD. Plaintiffs contend that the “performance goals,” as they are referred to in the NYPD, are unconstitutional and have over the past seven years resulted in African Americans and Hispanics being subjected to harassment and intimidation by the NYPD. Attorneys for the plaintiffs say that the lawsuit is not an attempt to end the stopping and frisking of criminal suspects. Rather, has been brought to examine the way the NYPD’s policy is applied in New York City; examine the effects of the policy on blacks and Hispanics and determine whether the policy violates the Constitution.
At the first day of trial, plaintiff David Floyd testified that he was a medical student when he was stopped by policy twice, including once in the afternoon while in front of his apartment. Similarly, plaintiff Nicolas Peart testified that he was stopped by police multiple times, including once while walking to a store to buy milk. Peart also testified about another incident in which he was stopped, frisked and his apartment keys taken by the police who entered his apartment building, causing Peart to worry about the safety of his siblings who lived with him.
Attorneys for the City of New York assert that police have not violated the Constitution. Rather, they contend that the police need the right to stop and frisk criminal suspects in high-crime neighborhoods which incidentally tend to be in minority neighborhoods. The assertions of the City of New York, however, were at odds with the trial testimony of several NYPD officers.
Officer Adhyl Polanco, an eight-year veteran of the NYPD, testified that at daily roll call he was instructed to make at least five stop-and-frisks each day, in addition to at least one arrest. Polanco further testified that he was instructed to write at least 20 traffic tickets each month.
Similarly, Bronx police officer Pedro Serrano was urged at daily roll calls by those who supervised him to produce more “250s,” which are the forms officers complete after they stop and frisk individuals.
Tape recordings of roll calls held within the NYPD also revealed the tactics used by supervising officers to increase performance quotas by rank and file street cops. Recorded comments included: “If you don't want to be on a foot post, get a collar (an arrest).”
When asked why he decided to come forward with evidence supporting plaintiffs’ claims, officer Serrano became emotional and said: “As a Hispanic walking in the Bronx, I've been stopped many times, and it's not a good feeling. As an officer, I said I would respect everyone to the best of my abilities. I just want to do the right thing.”
Keywords: litigation, minority trial lawyer, NYPD, arrest quotas, Constitution, harassment
—Dorcas Adekunle, Earle Mack School of Law Student, Drexel University, Philadelphia, PA
March 22, 2013
Survey Offers Peek into Academia's Stance on Affirmative Action
A recent survey conducted by Inside Higher Ed revealed that the universal enthusiasm for affirmative action traditionally associated with institutions of higher learning may not paint an entirely accurate picture of support for the practice.
The survey anonymously polled 841 college presidents (a little over one-fourth of those asked to participate) from a variety of higher education institutions. Only the institution type of the respondents was recorded for the sake of comparison. Of those surveyed, only 70 percent of them agreed or strongly agreed that consideration of race in college admissions had a “mostly positive effect on higher education generally.” More telling was the fact that only 58 percent believed that the use of race in admissions had a “mostly positive effect on education” at the schools to which they belonged.
The debate over the future of affirmative action has heated up over the past year as the nation anxiously awaits the outcome of the Fisher v. Texas Supreme Court decision. In that case, a white, female applicant is challenging the University of Texas’s use of race as a consideration in the school’s admissions policy. Speculation over the results of the case has worried affirmative action proponents who fear that the conservative majority on the Supreme Court will either restrict or overturn a 2003 decision which upheld the right of colleges to utilize race and ethnicity as a factor in admissions.
This concern seems to be shared by the presidents surveyed as well. Of the respondents polled, 51 percent believed that the Supreme Court will impose major limits on the use of race as a factor in admissions when the Fisher ruling comes down, 23 percent believed that modest limits on the use of race will be imposed, and only 20 percent believed that the current policy will be upheld.
While there may not by unanimous support from the academic community, leaders from educational institutions from across the country have nevertheless filed numerous legal briefs in support of the theory that the abolishment of affirmative action would negatively affect the quality of education their students receive. The board of the American Council on Education noted, “[T]he diversity we seek and the future of the nation do require that colleges and universities continue to be able to reach out and make a conscious effort to build healthy and diverse learning environments that are appropriate for their missions.”
Not surprisingly, the presidents were almost unanimously most concerned about potential cuts to federal student aid and university budget shortfalls. When polled about possible solutions, 76.8 percent of these presidents agreed that “substantial tuition increases” were the best ways for colleges and universities to deal with these monetary issues.
Keywords: litigation, minority trial lawyer, Fisher v. Texas, affirmative action, Supreme Court, college admissions, higher education, survey
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
March 18, 2013
Court Certifies Class-Action Discrimination Suit Against Secret Service
On February 26, U.S. District Judge Richard Roberts for the District of Columbia approved a class-certification request from 120 current and former Secret Service agents who are suing the Secret Service for allegedly denying them promotions on the basis of race.
The initial lawsuits were filed over 13 years ago by several plaintiffs in 2000 but failed to achieve class certification on three separate occasions. The district court finally agreed to certify the current class after counsel for the plaintiffs narrowed their claims to those involving certain African American agents who had been denied promotion bids over a period of time from the late 1990s to the early 2000s. Despite the delays, it appears that a policy change has been a long time coming. E. Desmond Hogan, cocounsel for the class, commented, “This case implicates a significant glass-ceiling problem the Secret Service has . . . . A good-old-boy culture has unfortunately permeated the leadership of the Secret Service. It’s time for the Secret Service to deal with the history of discrimination.”
The Department of Justice (DOJ) actively denies the discrimination claims, pointing to evidence which indicated that African American agents received similar promotion scores to nonblack agents. In fact, the DOJ noted that blacks often received promotions earlier in their careers than the counterparts of different ethnicities. DOJ lawyers stated, “This evidence conclusively refutes plaintiffs’ overarching claim that the Secret Service has refused to eliminate racism from the fabric of its promotion process.”
However, the case against the Secret Service is so convincing to some that Bennie Thompson, ranking member of the House Committee on Homeland Security, strongly suggested that the agency settle the case. He noted, “During the course of this case, the court has sanctioned the Secret Service for willful noncompliance with discovery obligations and court orders. It is my understanding that at this point in the process, the Secret Service is precluded from offering any legitimate nondiscriminatory reason to rebut any prima facie case of the disparate treatment discriminatory nonpromotion of the named plaintiffs in this case . . . It would see that such a ruling would provide any reasonable defendant with an incentive to conclude this case. The Secret Service’s failure to do so raises serious concerns about the agency’s commitment to resolve its long-standing diversity issues.”
Federal law places a cap on the maximum damages recoverable for each plaintiff at $300,000 a piece. Still, counsel for the plaintiffs maintained that the suit was less about the money, and more about equality. Hogan noted, “Our clients are most interested in getting in place a fair and equitable promotion system.”
For more information, click here.
Keywords: litigation, minority trial lawyer, Secret Service, race discrimination suit, promotion process, Department of Justice, African American agents
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
March 11, 2013
President Obama Continues Push to Diversify Federal Bench
Bolstered by strong support from minority groups, President Barack Obama is intensifying his efforts to increase the diversity of the federal bench. Of the nearly three dozen judicial candidates named by the president since January, 17 nominees are women, 15 are ethnic minorities, and 5 are openly gay. This group of nominees included the first openly gay black man and first Asian American lesbian ever recommended for a district court judgeship. Only five of the nominees were classified as white, straight men.
White House Counsel Kathryn Reummler noted, “Diversity in and of itself is a thing that is strengthening the judicial system . . . . It enhances the bench and the performance of the bench and the quality of the discussion . . . to have different perspectives, different life experiences, different professional experiences, coming from a different station in life, if you will.” Currently, of the 874 federal judge positions, 39 percent are held by females and 37 percent by nonwhites. Nancy Zirkin, a member of the Leadership Conference on Civil and Human Rights advocacy group, believed that the move will help shape President Obama’s legacy. She noted, “Obama, by putting on a diverse number of judges, [ ] will shape the courts for years to come.”
President Obama has faced considerable delays from Congress in the judicial nominee- confirmation process. In the first term of his presidency, the district court nominees of the president took, on average, 222 days from nomination to confirmation Comparatively, presidents George W. Bush and Bill Clinton faced delays of only 154 and 93 days, respectively. With regards to circuit court nominees, the president fell somewhere in the middle (245 days for those nominees versus 277 days for Bush and 127 days for Clinton). Reummler blamed Republican obstructionist efforts for the delays, stating that there has been “very, very little substantive opposition to any of the president’s judicial nominees.”
However, recent rule changes in filibuster rules may help speed up the review process. This January, the Senate enacted rules limiting the debate over district court nominees from 30 hours to two hours. The old rules are apparently still intact for circuit court and Supreme Court nominees.
Not everyone is pleased at the rate the president is pursuing the bench’s diversification. Curt Levey, an advocate from the Committee for Justice interest group, expressed fears that the rush to nominate judicial candidates solely for diverse qualities could compromise the quality of the judiciary as a whole. Levey stated, “If they’re talking about achieving [diversity] through aggressive identification of minority candidates, then that’s their prerogative . . . . If they’re talking about doing it through preferences, having a lower threshold of qualifications for minorities, then I don’t approve. And it’s hard to know which they’re doing. Unlike a college admissions system, where it’s easy to quantify, this is difficult.”
Liberal action groups believe that strong presidential action is required to push the candidates through the review process. Nan Aron, president of the liberal interest group the Alliance for Justice, stated, “Republicans will throw up every roadblock they can . . . . We’re counting on the White House and Senate leadership to be more assertive in getting nominees confirmed.”
Keywords: litigation, minority trial lawyer, bench diversification, judicial nominees, confirmation process, President Obama
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
March 6, 2013
Higher Ed Gets Failing Grade in Socioeconomic Diversity, Article Says
With affirmative action on the potential chopping block in the ongoing Fisher v. Texas case, the nation remains fixated on a Supreme Court decision which could permanently alter the way race is used (if at all) as a factor in college admissions. However, with all this attention focused on race, Century Foundation fellow Richard D. Kahlenberg believes that educational institutions are wrongfully giving socio-economic diversity short shrift. His recent article argues that the recent concentration of low-income/working-class students in two-year colleges and wealthy students in the most- selective four-year school impermissibly “shower[s] the greatest opportunities on the already advantaged.”
Kahlenberg has been promoting the need to increase socio-economic diversity on college campuses for over 15 years. In his piece, Kahlenberg points to a 2005 report by the former president of Princeton University, William Bowen, which indicated that being an “underrepresented minority” increased one’s admission chances at selective schools by almost 28 percentage points. By contrast, low-income candidates received no boost at all. Another 2004 study by the Century Foundation indicated that students from the most- advantaged socioeconomic quartile outnumbered students from the least-advantaged quartile at selective schools by 25 to 1!
Also troubling were the findings of Thomas Espenshade and Alexandria Radford, whose 2009 book, No Longer Separate, But Not Equal, revealed that at highly selective schools, lower-class white students were 33 percent as likely to be admitted as upper-middle-class white students of similar qualifications. The results from law schools were even worse: Richard Sander, a law professor at the University of California at Los Angeles, noted that only 2 percent of law students came from the bottom socioeconomic quartile, while over 75 percent came from the richest quartile.
Standardized testing also reflects certain educational disparities between various socioeconomic classes. A study by Anthony Carnevale and Jeff Strohl of Georgetown University found that, on the math and verbal sections of the SAT, socio-economic disadvantage imposed a 399-point penalty on low-income students compared to their most-advantaged counterparts.
Even if race-based affirmative action is prohibited, Kahlenberg proposes that diversity can be attained (and even improved) through consideration of socioeconomic factors rather than race alone: “[C]ampus officials will turn to economic disadvantage, and the percentage plans that disproportionately benefit poor and working-class students, as a way to indirectly produce racial diversity.” He noted that when a lower court in the Fisher case temporarily banned the University of Texas from considering race in admissions, the school was actually able to admit more black and Latino students through an economic affirmative action/academic merit combined plan than it had before the ban was implemented.
Whether Kahlenberg is right or wrong, his article raises serious questions about the most effective way that proponents of diversity can increase the representation of underrepresented groups—racial and socioeconomic—at educational institutions.
Keywords: litigation, minority trial lawyer, Fisher v. Texas, socioeconomic factors, diversity, race, college admissions, affirmative action
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
Discord over Mental Competency of Criminal Defendants
Psychiatrist Joel Dreyer lived a life free of crime until 2004 when at age 66 he began prescribing over 20,000 oxycodone pills and 78,923 hydrocodone pills to patients over the next three years. One of Dreyer’s patients died from an overdose of his prescriptions. Another was a minor who lacked parental consent for treatment. Dreyer nonetheless altered the patient’s age on prescriptions for Norco and Xanax. Dreyer also prescribed lethal quantities of addictive drugs to patients without conducting physical examinations or taking medical histories and received $100-$200 for each prescription.
In 2007, Dreyer was indicted by the United States on charges that he conspired to possess and distribute controlled narcotics. Two years later, Dryer pled guilty to two counts of a 30-count indictment and the 73-year-old Dreyer, who suffers from a degenerative brain disease affecting his judgment, was sentenced to 10 years in prison by a federal judge in Riverside, California. In August 2012, a divided panel of the Ninth Circuit reversed and remanded, finding that the evidence before the district court required it to order, sua sponte, an evidentiary hearing on Dreyer’s competency and that the failure to do so was “plain error.” The panel did so notwithstanding that counsel for Dreyer had not requested the district court to conduct such a hearing.
No petition for rehearing or rehearing en banc was filed by the government. A judge of the Ninth Circuit nonetheless sought rehearing en banc and when the request failed to garner sufficient votes, eight circuit judges issued a blistering dissent, contending that the standard mandated in the opinion authored by Circuit Judge Stephen Reinhardt will “wreak havoc” on sentencing procedures within the circuit. United States v Dreyer, No 10-50631, D.C. No. 5:089-cr-00041-VAP-1 (9th Cir. 2013). The dissent contends that Dreyer “significantly expands” existing Ninth Circuit precedent which had previously found plain error “only when the quality and magnitude of mental health evidence far exceeded what has been presented in this case.” Dreyer, supra, at 7. In the Ninth Circuit, “plain error” is ‘“error that is so clear cut, so obvious” that no ‘competent district judge’ would make such a mistake, even ‘without the benefit of objection.’” Id. at 11.
The mandate of the Ninth Circuit resulted, in part, from three expert reports submitted to the district court prior to Dreyer’s sentencing. The reports were authored by four experts, one of whom was recommended by the government and all of whom diagnosed Dreyer with frontotemporal dementia, a progressive, degenerative and irreversible disease that affects the region of the brain regulating comportment, insight and reasoning. Id. at 14. The reports differed only as to whether Dreyer was competent at the time he entered his guilty plea. Two experts opined that the dementia caused Dreyer to commit actions that he may not have clearly understood, such as the guilty plea. Another expert opined that throughout the time of Dreyer’s criminal conduct, the dementia prevented him from accurately critiquing or monitoring his behavior and foreseeing the consequences. The fourth expert, who was selected by the government, opined that Dreyer was competent at the time he entered his plea but acknowledged that Dreyer had engaged in his criminal behavior while suffering from dementia that impaired his judgment. This fact, the expert acknowledged, “may mitigate or reduce [Dreyer’s] culpability . . . as his moral compass was effectively compromised by brain damage over which [Dreyer] had impaired control.” Id. at 16. At sentencing, counsel for Dreyer refused to let his client speak because Dreyer had difficulty perceiving the truth and he was only “partially with us.’” Id. at 17-18.
As set forth in the majority opinion, “competence” is “the ability to understand the proceedings and assist counsel in preparing a defense” and extends not only to trial but also to sentencing where a defendant’s ability to speak “is an essential element of a criminal defense.” Id at 22. Competence at sentencing requires, inter alia, that a “defendant be able to assist in his own defense by participating in his “elementary right” of allocution.’” Id. at 19-21 (citing, inter alia, 18 U.S.C. section 4241(a)). Based on this record, the Ninth Circuit concluded that there was substantial evidence supporting Dreyer’s lack of capacity and therefore vacated his sentence and remanded the case for a competency hearing. On this same record, eight circuit court judges concluded that the district court had not committed plain error.
Keywords: litigation, minority trial lawyer, competency hearing, guilty plea, expert testimony, plain error, dissent
—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, CA
Sixth Circuit Upholds Firing of University HR Employee
Recently, the Sixth Circuit Court of Appeals affirmed a lower court ruling upholding the firing of Crystal Dixon, a former human resources employee at the University of Toledo. The underlying legal dispute began after Dixon was fired for writing a personal letter to the editor of a local newspaper in which she contested the characterization of sexual orientation as being the same as race. Following her firing Dixon sued the school, insisting that the First and Fourteenth Amendments precluded the school from firing her for voicing her opinion.
In pertinent part, Dixon’s at-issue letter stated: “I take great umbrage at the notion that those choosing the homosexual lifestyle are ‘civil rights victims.’ Here’s why. I cannot wake up tomorrow and not be a black woman . . . I am genetically and biologically a black woman and very pleased to be so as my creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few.”
After these statements were published, university president Lloyd Jacobs responded in a guest column of the Toledo Free Press, commenting that Dixon’s statements “do not accord with the values of the University of Toledo.” Later, Jacobs stated “[w]e will be taking certain internal actions to more fully align our utterances and actions with [the university’s established] value system.”
The school maintains the position—and the appellate court agreed —that as an HR administrator, Dixon could be disciplined for speaking out against the same diversity and acceptance policies that she was obligated to promote. Notably, the court stated that because Dixon was “a [government employee] policy maker engaged in speech on a policy issue related to her position,” the government’s interest in restricting her speech outweighed Dixon’s speech protection as a matter of law.
A copy of the court’s opinion can be found here.
Dixon has since requested a rehearing on the grounds that the appeals court wrongfully assumed that the school had editorial control over her public statements simply because she was employed by the university. Further, counsel for Dixon insisted that the court gave little consideration to the constitutional protection her speech was entitled to. In part, their petition stated, “[t]here is no dispute that the plaintiff was speaking on a matter of public concern and was thus terminated as a result of her speech.” Robert Muise, cofounder of the American Freedom Law Center (the organization in charge of Dixon’s defense) commented, “[t]his case only reinforces the fact that the liberal idea of ‘diversity’ is code for the tyranny of political correctness.”
Keywords: litigation, minority trial lawyer, freedom of speech, public statement, university policies, diversity, firing, constitutional protection, sexual orientation
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
New NALP Data Released on Diversity in the Legal Profession
The results of the latest annual NALP study are in, and the data collected reflects only modest changes in the representation of female and minority attorneys at law firms across the country. Still, news on the diversity front was not all bad; the study also indicated that law firms continue to show slight improvements in overall diversity figures, and have nearly made up for the legal profession’s loss of diversity brought on by the recent recession.
As a whole, minorities made up 12.91 percent of lawyers at the firms studied, a slight increase over the 2011 figure of 12.70 percent. Gains in the overall percentage of female attorneys were small as well; through 2012, 32.67 percent of all lawyers were female, compared to 32.61 percent in 2011. However, the number of female associates continued to decline slightly to 45.55 percent, down from 45.66 percent in 2009. While the percentage women and minority partners remains small, it continues to increase—albeit at an almost glacial pace. In 2012, 19.91 percent of all partners at the firms surveyed were women, and 6.71 percent were minorities. In 2011, these percentages were 19.54 percent and 6.56 percent, respectively. Despite these seemingly modest gains, the current representation of women and minority partners shows a marked improvement when compared to the results of NALP’s 1993 study (the first year it was conducted), which reported these partnership diversity percentages at only 12.27 percent and 2.55 percent, respectively.
Female minorities continue to be the most underrepresented at the partnership level, composing only 2.16 percent of all partners in 2012 (up from 2.04 percent in 2011). Male minorities compose a slightly higher percentage of all partners (4.55 percent); however, this group experienced almost no growth in the partnership ranks over last year (4.52 percent in 2011).
Commenting on these numbers, NALP director James Leipold noted “[t]he 2012 data suggest[s] that the temporary setback for minority representation brought on by recession-era layoffs has been effectively reversed but that the decline in the representation of women among associates has not been stemmed. The continued loss of women from the associate ranks, at a time when far too few women make up the partners of U.S. law firms, is a problem that firms must begin to address head-on.”
Interestingly, women and minority attorney representation varied greatly across different geographic regions. For example, while minority partners are vastly underrepresented in Pittsburgh, Pennsylvania (just over 2 percent of all partners) and Grand Rapids, Michigan (just under 2 percent), some areas, such as Miami, Florida, boast minority partnership percentages as high as 27.30 percent. Further, while some of the data collected supports the idea that minority representation within law firms will mirror the population of a given region (i.e. areas with a higher number of minorities will have more minority partners), other data revealed that this is not always the case. More diversity-related statistics (including a substantive breakdown of women and minorities in law firms by major U.S. city) can be found here.
Keywords: litigation, minority trial lawyer, representation, law firms, NALP, diversity percentages, recession, partnership, legal profession
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
First Article III Filipino American Judge Appointed to Federal Bench
On December 13, the United States Senate confirmed the appointment of Lorna Schofield as a federal district court judge for the Southern District of New York by a vote of 91-0. Judge Schofield received nominations for the position by both President Barack Obama and New York Senator Chuck Schumer. As a result of Schofield’s appointment, New York now employs two District Court judges of Asian descent (the other is Judge Kiyo Matsumoto of the Eastern District of New York).
Judge Schofield grew up in the US Midwest, attending Indiana University and later, New York University Law School. After graduating, Schofield worked in the litigation department at Debevoise & Plimpton LLP, becoming the firm’s first minority partner in 1991. Some of Schofield’s other accomplishments include serving as the U.S. Attorney in the criminal division of the Southern District of New York and becoming the first Asian-American Pacific Islander to chair the Litigation Section of the American Bar Association.
Prior to Schofield’s appointment, the only other Filipino-American Federal judge had been Alfred Laureta, an Article I Federal Judge for the District of the Northern Mariana Islands from 1978 to 1988. Unlike Article III judges, who are granted lifetime tenure, Article I judges serve a 10-year bench term.
Several Filipino-American groups, such as the Congressional Asian Pacific American Caucus (KAPAC) and the National Federation of Filipino American Associations (NaFFAA), expressed considerable satisfaction with Schofield’s appointment. NaFFAA national chair Ed Navarra stated, “Ms. Schofield’s confirmation by the Senate is a historic moment not only for our community but for the entire nation. . . . Given that Asian Americans are significantly underrepresented in the federal judiciary, Ms Schofield’s addition [to the bench] will greatly enhance the judiciary’s diversity.”
Arnedo Valera, the executive director of the Migrant Heritage Commission (a Washington-based rights group), agreed with Navarra, noting that “[o]ur judiciary and the legal system as a whole is best served when the judges belonging to different ethnicities are recognized and appointed to the bench.”
KAPAC chair and congresswoman Judy Chu summed up the feelings of many, commenting “[i]t heartens me to know that the judiciary, the branch of government dedicated to the interpretation of the most important cornerstone—the Constitution—is becoming more reflective of the dynamism and diversity of our nation.”
Keywords: litigation, minority trial lawyer, filipino, U.S. senate, federal judiciary, Article III, diversity, confirmation
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
January 23, 2013
The Fight Continues over Nassau County Redistricting
The contentious redistricting fight continues. Last year, lawmakers in Albany released a state senate map dividing up several communities in Nassau and Suffolk counties to reflect population changes realized in the 2010 census. Since then, angry lawmakers and irate community groups have argued against the proposed changes, insisting that they were designed to intentionally dilute the voting power of African-American, Latino, and immigrant voters in these regions.
Redistricting has become a particularly sensitive issue in this area of New York given the changing demographics of the Nassau County region. Data from the 2010 census revealed that non-white residents now comprise nearly 30 percent of Nassau County’s population. Some areas of Nassau County, such as the Elmont community, boast minority populations as high as 77 percent—districts referred to as “minority-majority.”
Now, Nassau County’s redistricting commission—a group composed of representatives from both sides of the political aisle—is trying to reach a palatable compromise amidst the hyper-partisan atmosphere and contentious debate. Opponents of the initial 2011 redistricting proposal noted that that the map contained “absurdly shaped districts, rife with jagged outcroppings and clefts.” These critics opined that the shapes were designed to weaken the political power of various minority groups by breaking up those communities with arbitrary divisions. Though representatives on both sides have since submitted new proposals, it appears that each party is still attempting to manipulate the redistricting maps in ways that will help them achieve a majority in upcoming elections.
Recently, Nassau County Republicans were accused of releasing a new redistricting proposal and calling for a public hearing on the matter without informing Nassau County Democrats or giving local newspapers time to announce the meeting. Local Democrats, who are the minority in Nassau County, were not pleased. Steve Markowitz, a Democratic member on the redistricting commission stated, “[d]espite valiant efforts by the Democratic commissioners to work with our Republican counterparts in a bipartisan way to come up with a plan that would best reflect the wishes of residents, we were rebutted and virtually shut out of the process.” Markowitz later referred to the situation as “abominable.”
Keywords: litigation, minority trial lawyer, redistricting, voting power, minority populations, Nassau County, hyper-partisan, senate map, census changes
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
Department of Justice Reaches Agreement on Juvenile-Justice Complaint in Tennessee
The Department of Justice announced in mid-December that it has entered into a settlement agreement with Shelby County, Tennessee, and the Juvenile Court of Memphis and Shelby County regarding the administration of juvenile justice and conditions of juvenile confinement in Shelby County, Tennessee.
The agreement addresses the findings made by the Department of Justice during its investigation of Shelby County and the court. The investigation was undertaken pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. section 14141, which prohibits a pattern or practice of deprivation of civil rights in the administration of juvenile justice. The investigation was also undertaken as part of compliance by Shelby County and the court with Title VI of the Civil Rights Act of 1964, 42 U.S.C. section 2000d to2000d-7.
As set forth in the agreement, the investigation began in the summer of 2009 which culminated in a report of findings issued in April 2012. In it, the United States concluded that there was reasonable cause to believe that the court failed to protect the constitutional rights of children appearing before it in delinquency matters. Among other things, the United States asserted that the court failed to provide constitutionally required due process, administer justice in a non-discriminatory manner, and provide reasonably safe conditions of confinement.
The agreement notes that before the report of findings was issued, the court “began taking steps to address the United States’ onsite recommendations … ” This included working with the local school system and law enforcement agencies to implement a juvenile summons in lieu of arrest program for limited offenses and reducing the detention population of juvenile. The willingness of the court to implement change without the need for litigation allowed the parties to enter into the agreement which, among other things, is intended to protect the due process rights of children involved in juvenile-delinquency proceedings. A copy of the agreement is available here.
The agreement reached with Shelby County and the Court is in contrast to the civil action filed by the Department of Justice against the City of Meridian Mississippi, Lauderdale County, Mississippi, the judges of the Lauderdale County Youth Court, and the State of Mississippi.
Filed in October 2012 in the United States District Court for the Southern District of Mississippi, the action seeks to remedy alleged violations by defendants of the Fourth, Fifth and 14th Amendments of the United States Constitution. The complaint alleges that defendants help operate a school-to-prison pipeline in which the rights of children in Meridian, Mississippi, are repeatedly and routinely violated. The lawsuit was filed after the Department of Justice issued a report and findings in August 2012 after an investigation that began in December 2011.
Keywords: litigation, minority trial lawyer, Department of Justice, school-to-prison pipeline, juvenile justice, settlement agreement, children's constitutional rights, Tennessee
— Edward Romero, Greenan, Peffer, Sallander & Lally LLP
Firing of FedEx Driver for Foreign Accent Highlights Ongoing Issues
In a country that prides itself on embracing the diversity of all people regardless of their national origin, there appears to be growing hostility in the workplace against non-English speakers and those with foreign accents. The unfortunate reality is that many non-English-speaking workers and workers with accents are being wrongfully discharged at an alarming rate. Complaints based on wrongful discharge in violation of national origin involving language ability have doubled since 1997. Despite the increasing number of claims in response to employer rules requiring employees to speak English, the majority of courts have held that English-only rules are not inherently discriminatory, so long as the rule is supported by business necessity.
Although some claimants have won settlements against their former employers in regards to harassment claims based on their language ability in the workplace, many, if not most, have little recourse. Going forward, the future for these types of claims is unclear, whether from an employer’s perspective or from a non-English-speaking worker’s perspective.
Recently, a Utah truck driver named Ismail Aliyev filed a federal discrimination lawsuit against FedEx, claiming he was fired because of his Russian accent.
According to Aliyev, who worked for a company that owned and operated FedEx-branded trucks, his trouble began when an Iowa weigh station gave the company a warning, not a formal citation, about his Russian accent. Since one of the requirements in holding a commercial driver's license is the ability to communicate, his accent could potentially create a problem. However, as Aliyev said to The Associated Press in a phone interview, “I think for a driver, my English is not too bad.” It is clear that Aliyev has an accent; but, according to his lawyer, his accent is “very understandable.” Further, Aliyev has held a commercial license since 2009 and has been driving without any problems before FedEx ordered his firing in September, allegedly because of his Russian accent.
According to the Equal Employment Opportunity Commission (EEOC), it is legal for employers to create English-only policies in the workplace, so long as such policies are out of business necessity. However, these English-only policies seem to violate the essence of American diversity. After all, America is supposed to be a welcoming place where people can fulfill their dreams regardless of their national origins and foreign accents.
Keywords: litigation, minority trial lawyer, wrongful discharge, non-English-speaking workers, English-only policies, EEOC, FedEx, workplace discrimination, language ability, foreign accents
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
NY Court of Appeals Vacancy Produces Most Diverse Pool of Applicants Yet
On December 1, 2012, the New York State Commission on Judicial Nomination presented Governor Andrew Cuomo with a list of seven judges and attorneys from which he must select the next Court of Appeals judge to replace retiring Judge Carmen Ciparick, the first Hispanic judge on the high court.
Among the 75 people who applied to fill Ciparick’s seat, 35 of the applicants were female and 24 were minority.
The list of nominees include Justices Sheila Abdus-Salaam and Rolando Acosta of the Appellate Division, First Department; Justice Eugene Fahey of the Fourth Department; Kathy Chin of Cadwalader, Wickersham & Taft; David Schulz of Levine Sullivan Koch & Schulz; Professor Jenny Rivera of CUNY School of Law; and Executive director Margarita Rosa of Grand Street Settlement.
The list of nominees delivered to Cuomo “is undeniably the most diverse list ever,” as reported by John Caher and Joel Stashenko of the New York Law Journal. To emphasize the diversity of the list, Caher and Stashenko further add, “If Cuomo wants to replace Ciparick with a Hispanic, he has three choices. If he wants to replace her with a Hispanic woman, he has that option. He could appoint the first openly gay member of the court (David Schulz) or the first Asian-American (Kathy Chin).” Not only does this list represent the most diverse group of high court nominees ever, but one of incredibly qualified and accomplished people. The quality of the list is phenomenal.
Carey Dunne, president of the New York City Bar, agrees that the commission produced a list that is both “good and diverse.” While the New York State Commission sought applicants from diverse racial, religious, ethnic and geographic backgrounds, diversity was not the number-one factor in selecting the nominees. According to Chief Judge Judith Kaye, the current chair of the commission, “We have quality first on our list.
Keywords: litigation, minority trial lawyer, New York State Commission, Court of Appeals vacancy, judges, nominees, diversity
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
January 07, 2013
Charter School Seeks to Prepare Minority Students for Legal Careers
Legal Prep Charter Academy (LPCA), Illinois's first legal-themed high school, debuted in late 2012 in West Garfield Park, Illinois. The school's stated mission is to prepare its students, all of whom are African- American or Latino, for a future career in the law. Sam Finkelstein, cofounder and CEO of LPCA, stated that the school's curriculum focused "on the skills that all great lawyers possess: excellent written and oral communication, critical thinking, and problem solving." Regardless of how many LPCA students actually go on to law school and pass the bar exam, Finkelstein hopes the school can make a difference by helping to diversify the legal profession. The curriculum of LPCA is unique, offering a demanding course load, a longer school day, and strict disciplinary rules.
Keywords: litigation, minority trial lawyer, charter school, diversity, legal profession
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
December 6, 2012
Second Circuit Unanimously Affirms $1 Million Jury Award Against School District
A few weeks after Anthony Zeno transferred to a new high school in the middle of his freshman year, a student charged at him screaming that he would “rip [Anthony’s] face off and … kick his ass” and that “[w]e don’t want your kind here.” While another student held back the aggressor, other students called Anthony a “nigger” and told him to go back to where he came from. For the remainder of his freshman year, Anthony was subjected to numerous racial comments and harassment at the racially homogenous high school in Pine Plains, New York, where a student ripped a necklace from Anthony’s neck and joked “Whoops, didn’t mean to break your piece of fake rapper ‘bling-bling.’” While the students involved in these incidents were disciplined with a warning or suspension, the school district did nothing else, notwithstanding Anthony’s reporting of the incident to school officials and a letter by his mother to both the district superintendent and the school board raising concerns about the students’ “verbal, racial attacks, and physical abuse” on Anthony and his younger sister.
For the next three years, Anthony, who is half white and Latino and dark-skinned, was called “nigger” almost every day by students at Stissing Mountain High School. In his sophomore year, one student, a teammate on the football team, punched Anthony in the face and threatened to “kick [Anthony’s] black ass.” Another student told Anthony that he was a “fucking nigger” and yet another student picked up a chair and started to throw it at Anthony before being restrained.On yet another occasion, Anthony walked into the school bathroom to find graffiti saying: “Zeno is dead” and “Zeno will die.” In February 2006, the student who had ripped the necklace from Anthony’s neck and broke it and another student tampered with Anthony’s locker filling it with garbage and loosening the door so that it and the garbage fell onto Anthony’s head when he opened the locker. And on at least two occasions, students taunted Anthony during his sophomore year with references to lynching and displaying a noose or threatening to take a rope to the nearest tree. In response these and other incidents, the school district suspended the students involved and moved one student to another school. Anthony also sought and obtained orders of protection.
Halfway through his sophomore year, Anthony told faculty and staff at the school, “I’m tired of this—I can’t take any more of it, I have to stop this. This has been going on forever.” The district superintendent did not call or meet with Anthony’s mother notwithstanding a letter to her during the school year that described the “‘verbal attacks includ[ing] racial slurs and threats to their lives’ and physical attacks so violent that [the school] called the police.”
Mrs. Zeno also obtained an attorney who sought the school district to “provide Anthony with a shadow, who would accompany him at school” and “implement racial sensitivity programs to underscore the district’s zero tolerance of racism and bias.” In November 2005, members of the Dutchess County Human Rights Commission and the county’s NAACP met with members of the school district and offered to provide the shadow and sensitivity training at no cost. The district did not assign Anthony a shadow and chose not to implement the training program offered by the Human Rights Commission.
Moreover, the school district’s compliance officer who was responsible for investigating racial harassment and discrimination under Title VI of the Civil Rights Act of 1964, never investigated the harassment nor did she follow up or respond to the complaints of Anthony and his mother. Indeed, throughout Anthony’s sophomore year, the district administrators, including the compliance officer, “never discussed racial harassment generally, or Anthony, specifically.”
Anthony was subjected to even more harassment in his junior year, with a student threatening to “kick [Anthony’s] black ass” and threatening “to rape his younger sister.” When “Anthony threw a punch,” the school district punished Anthony, but not the instigator.”
Based on these and many other incidents of harassment and violence, a federal jury found the school district liable of violating Title VI of the Civil Rights Act of 1964. While the district court reduced the jury’s award to $1 million dollars, the Second Circuit unanimously affirmed the ruling in Anthony Zeno v. Pine Plains Central High School District, Docket No. 10-3604-cv (Second Circuit December 2012).
Keywords: litigation, minority trial lawyer, racial harassment and discrimination, Title VI of the Civil Rights Act of 1964, school district,
—Edward Romero, Greenan, Peffer, Sallander & Lally LLP
December 6, 2012
Arizona DREAM Act Coalition Files Suit Against Arizona Officials
On November 29, 2012, a class-action lawsuit was filed in the United States District Court for the District of Arizona challenging Arizona executive order 2012-06 and Arizona’s practice of denying driver’s licenses to immigrant youths who have been authorized to stay in the United States under the Deferred Action for Childhood Arrivals (DACA) program. The DACA was signed by President Obama on June 15, 2012, and it allows young immigrants, who meet certain qualifications, to remain in the United States without the threat of deportation for a renewable period of two years. During this period, qualifying youths can obtain social security numbers and can engage in lawful employment by obtaining an employment-authorization document (EAD).
The lawsuit was filed by the Arizona DREAM Act Coalition and five young immigrants who are qualified to participate in the DACA program, but have been precluded from obtaining driver’s licenses in Arizona. The complaint alleges that in an effort to undermine the DACA, on August 15, 2012, Arizona’s governor, Janice Brewer, issued Executive Order 2012-06. Pursuant to the executive order, “the Deferred Action program does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants.” The executive order also directs state agencies to take necessary actions to “prevent Deferred Action recipients from obtaining eligibility … for any … taxpayer-funded public benefits and state identification, including driver’s licenses.”
The plaintiffs are challenging Arizona’s practice on the grounds that it violates the Supremacy Clause of the US Constitution because the federal government is vested with the sole power of regulating immigration. The plaintiffs are also alleging that Arizona’s practice violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection challenge is premised upon the plaintiffs’ assertion that prior to the issuance of executive order 2012-06, driver’s licenses were issued to all eligible noncitizens who were granted deferred action, and for purposes of establishing driver’s license eligibility, an EAD was accepted as proof of authorized presence in the United States. However, after the entry of executive order 2012-06, DACA recipients are unable to use EAD documents to establish proof of authorized presence in the United States, but an EAD can still be used by individuals who have been granted other forms of deferred action or temporary authorization to remain in the United States.
The class represented in this lawsuit includes approximately 80,000 individuals in the state of Arizona who are eligible to participate in the DACA program.
Keywords: litigation, minority trial lawyer, DREAM Act, Arizona, Arizona DREAM Act Coalition, EAD, DACA program, driver's licenses, immigration, lawsuit, class action
—Utibe I. Ikpe, Esquire, Powers Mcnalis Torres Teebagy Luongo
November 21, 2012
Sixth Circuit Rejects Michigan's Ban on Affirmative Action
On November 15, the US Court of Appeals for the Sixth Circuit struck down as unconstitutional a Michigan voter-approved, statewide ban of affirmative action. The court based its holding on equal-protection grounds, noting that while those attempting to fight otheraspects of university admissions had multiple avenues for doing so (i.e. through petitions or lobbying), proponents of affirmative action would be forced to amend the state’s constitution to affect any sort of substantive change. Commenting on this procedural inequity, Judge R. Guy Cole Jr. noted, “[t]he existence of such a comparative structural burden undermines the equal protection clause’s guarantee that all citizens ought to have equal access to the tools of political change.”
The Sixth Circuit’s decision created a split between two federal courts of appeal; recently, the Ninth Circuit upheld California’s statewide ban on affirmative action. Eugene Volokh, a law professor from the University of California, Los Angeles, believes that this split makes the issue regarding the permissibility of statewide affirmative action bans ripe for review by the U.S. Supreme Court. Notably, seven other states—Arizona, California, Florida, Oklahoma, Nebraska, New Hampshire, and Washington—have enacted legislation banning the consideration of race in university admissions.
However, the true impact of this ruling will likely depend on the outcome of another case, Fisher v. University of Texas, which is currently under review by the Supreme Court. In essence, the Fisher case is considering a direct challenge to the use of race as a factor in university admissions. There, a decision either for or against affirmative action in the admissions context would likely cast a shadow over the outcome of the Sixth Circuit’s decision.
Still, affirmative action supporters were pleased with the holding. Gary Orfield,
codirector of the Civil Rights Project at the University of California, Los Angeles, wrote that “[t]his victory … means that a major federal appeals court has recognized that elimination of minority rights through referenda campaigns changing state constitutions in ways that make it virtually impossible for minority communities to ever reverse the decisions is a critical and unjust limitation on American democracy.”
Keywords: litigation, minority trial lawyer, affirmative action, Sixth Circuit, university admissions, ban. Fisher v. University, Michigan
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
November 14, 2012
Gaullaudet University's Diversity Officer on Paid Leave over Petition
Recently, Angela McCaskill, Gaullaudet University's first deaf, African-American doctoral graduate, was placed on paid administrative leave after T. Alan Hurwitz, the university's president, was informed that McCaskill had signed a petition to put Maryland's same-sex marriage law to a statewide vote. When questioned about the incident, McCaskill admitted to doing so.
Though she initially kept the suspension quiet, McCaskill has vocally protested what she perceives to be the university's retaliation against her for exercising her rights. She stated, "[n]o one had the right to determine what my signature meant ... They have tarnished my reputation and 24 years of service. The situation has spiraled out of control. Later, she noted, "[s]igning that petition is a right I have as a citizen of the state of Maryland," and, though noting that she was not anti-gay, McCaskill asserted that her actions "simply mean that I want to see this very sensitive issue put on the ballot as a referendum ... "
Hurwitz stated his belief that, as the university's chief diversity officer, McCaskill's actions could be perceived as confusing by the student body. He went on to insist that the school initiated the leave simply to see whether or not McCaskill's actions had "interfere[d] with her ability to perform her job."
Several groups, including the Marylanders for Marriage Equality, voiced their opposition to the suspension, calling it wrongful and asking for McCaskill to be reinstated. Many were incredulous that a person charged with upholding/promoting/facilitating diversity would be faced with such a dilemma. An unnamed Gallaudet student noted that McCaskill "[has] been a great ally to the LGBT community ... I'm heartbroken about this."
Gallaudet University is the nation's leading higher-education institution for the deaf.
Keywords: litigation, minority trial lawyer, university, same-sex marriage law, petition, rights, leave, Marylanders for Marriage Equality
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
November 14, 2012
Second Circuit Strikes Down Defense of Marriage Act
On October 18, 2012, the United States Court of Appeals for the Second Circuit in New York, New York, found the Defense of Marriage Act (DOMA) of 1996—a law denying federal marriage benefits to same-sex couples—unconstitutional. Notably, it was the second appellate court to do so this year (the first being the First Circuit Court of Appeals in Boston, Massachusetts). In a 2-1 decision, the court noted that homosexuals had faced a "history of discrimination," further stating, that "[h]omosexuals are not in a position to adequately protect themselves from the discriminatory wishes of a majoritarian public."
Proponents of same-sex marriage hope that this ruling will provide a strong basis for the argument to repeal DOMA if the case is taken up on appeal before the Supreme Court. Earlier this year, the Obama administration instructed the Justice Department to stop defending judicial challenges to the law. Further, many top Democrats—including House Minority Leader Nancy Pelosi, gay-rights activist group GLAAD and the ACLU—applauded the ruling and the message of support it sent to the gay community.
Not surprisingly, many conservatives are displeased by the decision. Brian Brown, president of the National Organization for Marriage, stated "[t]his is yet another example of judicial activism and elite judges imposing their views on the American people, and further demonstrates why it is imperative for the U.S. Supreme Court to [act]." Brown noted that 32 states had backed (by popular vote) the traditional view of marriage being defined as between a man and a woman.
Ellen Windor, the 83-year-old plaintiff in the underlying case, expressed her elation at the ruling; still, she commented that she didn't believe there was a "chance in hell" that the decision would turn out the way it did. Later, Windsor expressed a desire shared by many gay-rights activists: that her sexual orientation would become a nonissue when it comes to marriage in American society.
Keywords: litigation, minority trial lawyer, same-sex marriage, gay rights, DOMA, appeals, Second Circuit, Nancy Pelosi, GLAAD, ACLU, National Organization for Marriage
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
November 12, 2012
Law Schools Submit Briefs in Support of Affirmative Action
The battle over the validity of affirmative action has reached the Supreme Court again for the second time in 10 years. As the Supreme Court considers the issue of race in collegiate admissions in Fisher v. University of Texas, multiple members of academia and several law school entities —including the Association of American Law Schools, the Law School Admission Council, the American Bar Association, New York University School of Law’s Brennan Center for Justice, Howard University School of law’s Civil Rights Clinic, National Black Law Students Association, the Emory Latin American Law Students Association, OUTLaw, Harvard Law School Dean Martha Minow, Yale Law School Dean Robert Post, and six other constitutional law professors—have filed amicus briefs supporting the consideration of race in admissions decisions. In essence, the briefs argue that removing race as a consideration in admissions decisions would effectively handicap efforts to increase diversity in law schools and the legal profession at large.
The brief of Minow and Post (prepared by Sidley Austin’s Carter Phillips) stated “[w]ere this Court altogether to preclude considerations of race from the admissions process, each school would be disadvantaged in its efforts to select individuals who will produce the most effective classroom experience for training students to succeed in the opportunities and challenges that lawyers, whether practicing or not, must inevitably confront.”
The Law School Admission Council wrote “[t]he simple demonstrable statistical fact is that most selective law schools in this country will have almost no students of certain races unless they adopt admissions policies designed to alter that outcome.” They based this conclusion on the effect of various schools’ admissions standards (i.e. LSAT and GPA scores) on various minority groups.
In their submission, the Association of American Law Schools argued that this disparity resulted from smaller class sizes in law schools. In other words, they believe that while large undergraduate institutions may have enough applicants to achieve a “semblance of racial diversity,” the smaller scale of law schools prevent them from realizing a racially diverse student body where class-rank based admissions are the sole admission criteria.
Still, most of the amici strongly insist that race is only one consideration in a comprehensive review of each applicant, asserting that diversity is in no way determinative for individual acceptance/employment decisions.
Keywords: litigation, minority trial lawyer, affirmative action, diversity efforts, Fisher v. University of Texas, admissions decisions
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
November 9, 2012
Maryland and Maine Approve Same-Sex Marriage
On November 6, 2012, voters in both Maryland and Maine approved legislation permitting gay marriage. The ballots that passed contained similar language, and in pertinent part render the words man and woman, as relating to the marital or familial relationships, as gender neutral for all purposes. Additionally, the measures ensure that clergy persons opposed to the practice would not be forced to marry same-sex couples should it go against their personal religious convictions. A similar measure was voted on and is expected to pass in Washington in the new few days.
As a result of its referendum, Maine plans to begin granting marriage licenses to gay couples by the end of the year. Proponents of the bill were relieved, noting that a similar bill had failed in 2009 when voters rejected the Maine governor’s proposal to permit same-sex marriage in the state.
These results mark a shift in American attitudes toward same-sex marriage. Notably, Paul Guequierre of the Human Rights Campaign states, “[W]e’ve lost at the ballot box 32 times. History was made tonight.” Marc Solomon, the campaign director at the Freedom to Marry, commented that “[I]tʼs hard to overstate the national significance of [the Maine referendum].” Fred Sainz, another spokesperson for the Human Rights Campaign, noted “[t]he secret to our success is that we won over hearts and minds. Americans are fair and want to see their gay and lesbian friends, coworkers, and family members have the freedom to marry.”
As another first, Tuesday night also saw the election of the first openly lesbian senator, democrat Tammy Baldwin of Wisconsin. Elsewhere, voters in Minnesota voted to block a state constitutional amendment seeking to ban same-sex marriage, another victory for gay-marriage-rights activists.
Presently, 38 states have enacted bans on same-sex marriage by amending their respective state constitutions to define marriage as a union solely between a man and a woman. However, same-sex marriage rights now exist in eight states—Maine, Maryland, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York—and are likely to expand in the future.
Keywords: litigation, minority trial lawyer, same-sex-marriage, marital rights, referendum, state constitutions
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
October 2, 2012
Justice Ginsberg: Supreme Court Will Review DOMA in 2012
In a talk at the University of Colorado in Boulder about the changing legal profession, Justice Ruth Bader Ginsberg suggested that the Supreme Court may be reviewing the Defense of Marriage Act (DOMA) soon.
Ginsberg mostly talked about entering the legal profession at a time when there were few female lawyers and even fewer female judges. She expressed her prediction for DOMA after she was asked a student-submitted question about the Equal Protection Clause and whether the Supreme Court would consider applying it to sexual orientation.
After reminding the audience that she could not talk about matters that would come to the Court, Ginsberg said “I think it’s most likely that we will have that issue before the court toward the end of the current term.”
DOMA was passed by Congress in 1996 and signed by President Bill Clinton following a Hawaii Supreme Court ruling in 1993 that made it appear as though Hawaii intended to legalize gay marriage. It defines marriage, for the purposes of federal law, as “only a legal union between one man and one woman as husband and wife.”
The law has been declared unconstitutional by a New York federal judge and went to oral arguments in front of the Second Circuit on September 27.
Many states have banned gay marriage, and eight states have approved it. Massachusetts was the first to approve gay marriage in 2004, and Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, and Washington state have since followed. The Maryland and Washington laws are not yet in effect.
In February 2011, President Barack Obama and Attorney General Eric Holder directed the Department of Justice to no longer defend the act.
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
October 2, 2012
Diversity Nonprofit Urges ABA to Amend Model Rules
The Institute for Inclusion in the Legal Profession (IILP) recently sent a letter to ABA president Laurel Bellows urging the organization to amend the Model Rules of Professional Conduct to incorporate an obligation to promote diversity and inclusion within the legal profession.
IILP wrote, “[t]he legal profession continues to lag behind other professions in terms of diversity. Given the importance of our justice system, and the roles and responsibilities that lawyers and judges bear, it is critical for our profession to affirmatively address diversity in the Model Rules of Professional Conduct.”
The ABA has not commented on the merits of the proposal, but has announced that the proposal will “work its way through the ABA’s legislative process.”
The ABA’s Model Rules of Professional Conduct provide recommendations for the ethical practice of law, including suggestions for the lawyer-client relationship, advertising, and the structure and responsibility of firms. Corresponding state rules often resemble the ABA Model Rules, and those state rules are binding. Therefore, IILP argues, the ABA’s adoption of a diversity rule would create a “ripple effect” throughout the country.
When assessing the proposal, the ABA will need to consider the details of the rule. These details include what the rule will say, what the rule is trying to accomplish, and whether sanctions will attach to the rule.
IILP has asked that the ABA’s Standing Committee on Ethics and Professional Responsibility develop a resolution in time for consideration in 2013.
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
October 2, 2012
CA Law Sends Gay-Conversion Therapies to 'Dustbin of Quackery'
California Governor Jerry Brown signed SB 1172—placing a ban on gay-conversion therapy for patients under 18—into law on September 29, 2012. The law is the first of its kind and will take effect on January 1, 2013.
The law aims to protect lesbian, gay, bisexual, and transgender minors from the “reparative therapies” administered by mental-health professionals with the purpose of altering sexual orientation or gender identity. These “reparative therapies” involve a number of techniques, including counseling, shock therapy, and even exorcism.
Gov. Brown stated “This bill bans non-scientific ‘therapies’ that have driven young people to depression and suicide. These practices have no basis in science or medicine and they now will be relegated to the dustbin of quackery.”
A spokesman for the National Association for Research and Therapy of Homosexuality has already promised to file a “major lawsuit” within the week to challenge the law. The Pacific Justice Institute also intends to file a separate lawsuit grounded in First Amendment claims. Ultimately, the legal battle is likely to focus on the questions of whether reparative therapy constitutes child abuse, and if the ban itself is unconstitutional.
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
October 2, 2012
Current Supreme Court Term Big For Civil Rights
The current U.S. Supreme Court term is likely to be one of the most significant terms for civil rights in decades. Decisions are expected on such issues as race in classrooms, voting rights, and legal recognition of same-sex marriage.
The first case on the docket addresses the constitutionality of affirmative action, and will come before the Court on October 10. Abigail Fisher, a white student denied admission to the University of Texas at Austin, has challenged the constitutionality of considering the race of applicants as a factor in admitting an incoming class. Under the university’s policy, students in the top 10 percent of academic performers are the first admitted, and the remaining members are selected based on a number of factors, one of which is the race of the applicant. According to Fisher, the consideration of race cost her a spot in the university class. The Supreme Court will need to determine if this case is distinguishable from the 2003 case that upheld a race-conscious admissions program at the University of Michigan law school.
The Court will also be examining the Voting Right Act this term. The act was most recently renewed in 2006, and requires states with a history of discrimination at the polls to get federal permission before making any changes to election procedures. The list of areas required to get this permission include nine entire states as well as 12 cities and 57 counties. Parties to this litigation argue that the pre-clearance standards are unfair. Pending cases request that the Court either strike down the pre-clearance requirement or modify the list of areas.
It also looks like the Supreme Court will be addressing challenges to the federal Defense of Marriage Act (DOMA). If the Court strikes down DOMA as discriminatory, the federal government would be forced to recognize gay marriages as legal in states that permit same-sex marriage.
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
Social-Security-Benefit Cases Need Individual Consideration
In a per curiamopinion, the Ninth Circuit has ruled that individualized consideration must be given to each case challenging the denial of social-security benefits. It is therefore an abuse of discretion for a district court to promulgate an informal local rule limiting the amount of attorney fees that can be awarded under the Equal Access to Justice Act in cases challenging the denial of social-security benefits. Costa v. Commissioner of Social Security Administration, 2012 U.S. App. Lexis 17946 (9th Cir. 2012).
The Equal Access to Justice Act “provides for an award of attorney’s fees to a party that prevails against the United States in a proceeding for review of an agency action, unless the court finds ‘that the position of the United States was substantially justified or that special circumstances make an award unjust.’” Costa, supra, citing 28 U.S.C. § 2412(d).
Oregon resident Shane Costa applied for social-security disability benefits based, inter alia, on bipolar and eating disorders, spinal pain, and anxiety. The Social Security Administration denied his claim, and Costa sought review in the district court for the District of Oregon, where the parties consented to entry of a final judgment by a magistrate judge.
Although the magistrate reversed the administrative law judge’s finding that Cohen was not disabled, he nonetheless reduced the attorney fee sought by Cohen under the Equal Access to Justice Act. In so doing, the magistrate reduced the fee request by nearly a third without providing specific reasons for making such reductions other than reliance on an informal district-wide rule that set 40 hours as the upper limit for a social-security disability appeal that “does not present particular difficulty.”
In finding that the magistrate had abused his discretion, the Ninth Circuit decreed that district courts may not apply “de facto caps” that limit the time attorneys can reasonably expend on “routine” social-security cases. The Ninth Circuit further questioned “the usefulness of reviewing the amount of time spent in other cases to decide how much time an attorney could reasonably spend on the particular case before the court.” As the panel noted, “it is far less useful for assessing how much time an attorney can reasonably spend on a specific case because that determination will always depend on case-specific factors including, among others, the complexity of the legal issues, the procedural history, the size of the record and when counsel was retained.” Costa at *9–10.
Keywords: litigation, minority trial lawyer, attorney fees, Equal Access to Justice Act, social security, Ninth Circuit
—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California
Diversity of Fortune 500 General Counsel at All-Time High
A recent survey released by the Minority Corporate Council Association (MCCA)—an association formed to “advance the hiring, retention, and promotion of diverse attorneys in legal departments and the law firms that serve them”—indicated that the number of diverse/minority attorneys serving as general council within Fortune 500 companies reached an all-time high in 2011.
Some of the more impressive gains of 2011 were made by women, who added 23 new positions since 2009 and now hold the top legal position at 21 percent of Fortune 500 companies. Interestingly, half (50 percent) of these women general counsel were based in six states—California (12 percent), New York (11 percent), Texas (10 percent), Illinois (8 percent), New Jersey (7 percent) and Virginia (7 percent). Though a small decrease in women general counsel was recorded among Fortune 1000 companies, with four positions lost since 2011, these losses can be explained by the departure of six companies from the Fortune 1000 to the Fortune 500. Of these female general counsel officers, 16 percent identified themselves as minorities, the highest MCCA survey percentage to date.
Minority general counsel officers made slightly smaller gains, but still added four positions—all female—making the 47 total minorities serving as general counsel at Fortune 500 companies the highest number ever. These gains come off a flat year for diversity in 2010, when no new minority general counsel positions were added.
In response to these gains, Joseph K. West, MCCA CEO and president, stated,
The number of minority general counsel at Fortune 500 companies has been steadily increasing since 2008. A tough economy and high unemployment have hit minorities particularly hard, but when solid growth and robust hiring return, we expect to see minorities continue their advance in the legal departments of the nation’s largest companies.
Keywords: litigation, minority trial lawyer, diversity, Fortune 500, general counsel
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
Sex-Based Discrimination Includes Gender Identity
A recent letter issued by the Department of Health and Human Services (DHHS) declared that sex-based discrimination includes discrimination on the basis of gender identity under section 1557 of the Affordable Care Act, a move widely lauded by the lesbian, gay, bisexual, and transgender (LGBT) community.
In pertinent part, the letter stated,
We agree that Section 1557’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and will accept such complaints for investigation. Section 1557 also prohibits sexual harassment and discrimination regardless of the actual or perceived sexual orientation or gender identity of the individuals involved.
In addition to its promise to investigate, the DHHS listed several resources available to LGBT and other individuals who wish to stay informed of their rights, including links to resources through which potential violations could be reported.
Still, the ultimate effect of this declaration is unclear. Though recent court decisions and Equal Employment Opportunity Commission statements have taken a similar stance on the issue—including a declaration that they are now accepting and investigating these types of sex-discrimination complaints under the health-care law—the true extent of the gains by the LGBT community has yet to be seen. Notably, while a growing number of employers do provide health benefits aimed at the specific needs of transgender individuals, there is no requirement that insurers provide coverage for gender-transitional procedures, such as gender-reassignment surgery. One survey of large employers in 2010 noted that only “14% of its members covered gender reassignment surgery and 32% covered nonsurgical treatments such as hormones and counseling.”
Still, prompted in part by the concerns of younger workers over workplace diversity and tolerance, employers have been making efforts to address the issues faced by transgender individuals with regard to insurance coverage. Between 2011 and 2012, the number of employers receiving a perfect score on the Human Rights Campaign’s annual corporate equality index—a survey that examines how different companies treat their LGBT employees—increased from 85 to 207.
Keywords: litigation, minority trial lawyer, LGBT, Affordable Care Act, Department of Health and Human Services
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
September 19, 2012
Texas Redistricting Plans Discriminate Against Minorities
On August 28, 2012, a three-judge special panel determined that Texas’s redistricting plans discriminated against the state’s minorities. The panel said Texas could not prove that the plans for the state’s congressional district and houses of the legislature were not drawn without intentional discrimination against the minority population. Specifically, there appeared to be discrimination against the growing Latino population. Additionally, the new district lines “removed the economic guts” from the congressional districts that are currently held by African Americans.
Section 5 of the Voting Rights Act requires any voting changes in states with a history of discrimination to undergo federal approval. Texas is the largest state covered by this section. Texas Attorney General Greg Abbot has said the state will appeal the recent ruling to the U.S. Supreme Court, stating, “Today’s decision extends the Voting Rights Act beyond the limits intended by Congress and beyond the boundaries imposed by the Constitution.” Some states and jurisdictions covered by section 5 have asked the Supreme Court to strike down the law, arguing that it is no longer needed.
Texas State Representative Trey Martinez Fischer, chairman of the Mexican American Legislative Caucus, argues that the population of Texas is changing by the day, and the redistricting plans approved in 2011 represented “a very old and different Texas.” Notably, after the 2010 census, Texas received four additional congressional districts due to a population growth of approximately 4.3 million people. Latinos comprised 65 percent of the increase, blacks 13.4 percent, and Asian Americans 10.1 percent. In its ruling, the panel agreed with the Obama administration that at least one of the new districts should have been drawn to enable a minority to be elected to office.
This decision is not likely to impact the current districts before the November election, although a challenge is reportedly being considered.
Keywords: litigation, minority trial lawyer, Texas, redistricting, Voting Rights Act
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
September 19, 2012
Arizona "Show Me Your Papers" Provision Prevails
On September 5, 2012, U.S. District Judge Susan R. Bolton denied a request by civil-rights groups to temporarily block enforcement of the “show me your papers” provision of Arizona’s controversial S.B. 1070 immigration law. According to this provision, Arizona can require police officers to check the immigration status of individuals they stop or detain if they have a “reasonable suspicion” that the individual is an illegal alien.
The American Civil Liberties Union (ACLU), the National Immigration Law Center, and the Mexican American Legal Defense and Education Fund in Valle del Sol v. Whiting, 10-01061, U.S. District Court, District of Arizona (Phoenix) requested that the court prevent Arizona from enforcing the law until the courts have ruled whether it violates the U.S. Constitution.
Judge Bolton declined to ignore the “clear direction” of the U.S. Supreme Court that the section “cannot be challenged further on its face before the law takes effect.” In June 2012, the Supreme Court struck down large portions of S.B. 1070 on the grounds that states must defer to the federal government on immigration policy. However, the court said the police checks for immigration status would be permitted to continue.
The civil-rights groups opposing the provision are not backing down. Linton Joaquin, general counsel of the National Immigration Law Center, stated, “Today’s ruling will lead to rampant racial profiling of Latinos and others who might be suspected of being in Arizona without authorization . . . . We are committed to continuing the fight against this law in our case until it is permanently struck down.”
In her ruling, Judge Bolton also blocked a provision of S.B. 1070 that makes it a crime to transport or harbor illegal immigrants. She relied on a U.S. Court of Appeals decision from Atlanta that held the similar provisions in Alabama and Georgia immigration laws were preempted by federal law.
S.B. 1070 will not take effect until further order from the court. According to Arizona, the state’s 370-mile border with Mexico is where half of the nation’s illegal immigrants cross into the country.
Keywords: litigation, minority trial lawyer, Arizona, immigration
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
September 19, 2012
California Imposes New Rules for Habeas Corpus Petitions
In a unanimous opinion, the California Supreme Court has decreed that second and subsequent petitions for habeas corpus will be limited to 50 pages subject to an exception for good cause. Initial petitions for habeas corpus are not subject to length. The page limitations were imposed at the end of August 2012 because the current system threatens “to undermine the efficacy of the system for adjudicating petitions for collateral relief” in death penalty cases. In re Reno, 2012 Cal. Lexis 8295 (Aug. 30, 2012).
In California, death sentences are automatically appealed to the state supreme court, bypassing the intermediate court of appeal. Article VI, section 11 of the California Constitution; Penal Code § 1239(b). If the judgment is affirmed on appeal, a capital defendant is entitled to challenge the judgment by filing in the California Supreme Court a petition for a writ of habeas corpus. If the petition is denied, most, if not all, capital defendants file habeas petitions in federal district court. Federal law, however, requires claims in a federal habeas petition to have first been exhausted in state court. Baldwin v. Reese, 541 U.S. 27 (2004); 28 U.S.C. § 2254(b)(1)(A). As a result, capital defendants “quite typically file a second habeas corpus petition” before the California Supreme Court “to raise unexhausted claims. Third and fourth petitions are not unknown.” In re Reno, supra, at *2–3.
The right to habeas corpus is guaranteed by the California Constitution and “may not be suspended unless required by public safety in cases of rebellion or invasion.” In re Reno, supra, at *19–20. The writ permits a person deprived of his or her freedom “to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner’s last chance to obtain judicial review.” Id. Habeas petitions strike at the finality of criminal judgments. It is therefore an extraordinary remedy in California, and the “availability of the writ properly must be tempered by the necessity of giving due consideration to the interest of the public in the orderly and reasonably prompt implementation of its laws and to the important public interest in the finality of judgment.” In re Reno, supra, at *23–24.
As a result, a petitioner’s failure in a second or successive habeas petition to
acknowledge the limitations of habeas corpus as an avenue of collateral attack and to make a plausible effort to explain why the claims raised are properly before the court, can be considered an abuse of the writ process. In this way, habeas corpus is not different from other types of civil writs that constitute extraordinary relief.
In imposing limitations on the length of subsequent writ petitions, the California Supreme Court further announced that counsel are “forewarned that the filing of abusive petitions in the future may subject them to financial sanctions . . . .” In re Reno at *207–08.
Keywords: litigation, minority trial lawyer, death penalty, habeas corpus petition, California
—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California
August 23, 2012
Justice Department Supports Affirmative-Action Policy
The Supreme Court is set to hear oral arguments on the permissibility of the University of Texas’s affirmative-action program on October 10, 2012. On August 13, 2012, the Justice Department submitted a brief cosigned by several other government agencies, including the Departments of Defense, Education, Commerce, Labor, and Health & Human Services, to the Supreme Court in support of its view that a diverse college population was in the university’s and the government’s best interest. In essence, the brief asks the high court not to interfere with the university’s current practice of taking racial preferences into account for college admission decisions.
This case marks the first review of affirmative action in higher education since the Supreme Court’s 2003 decision in Grutter v. Bollinger, (123 S. Ct. 2325), which upheld the University of Michigan Law School’s use of racial considerations in university admissions. As the current composition of the Supreme Court is more conservative than the Grutter court, some believe that it will either overrule the decision or limit the permissible scope of university affirmative-action programs in the future.
The case arose when Abigail Fisher, a white student, was denied admission to the school in 2008. Shortly thereafter, Fisher filed suit, alleging that the school’s decision violated her civil and constitutional rights. Currently, the school admits most students based on class rank (candidates from the top 10 percent of their respective classes are generally admitted), and Fisher had not made the cutoff. Still, the university does consider other factors, such as race, academic record, personal essays, leadership potential, extracurricular activities, and other honors/awards. The University of Texas’s admission criteria had been previously upheld by the Fifth Circuit Court of Appeals in June of 2011.
Solicitor General Donald B. Verrilli made sure to indicate that the consideration of race had not created an impermissible quota system, saying, “Race is not considered on its own, and it is never determinative of an applicant’s admission by itself. Rather, race is one of a number of contextual factors that provide a more complete understanding of the applicant’s record and experiences. That is a far cry from impermissible racial balancing.”
The Supreme Court granted certiorari to review the decision on February 21, 2012, with Justice Kagan taking no part in the consideration. Fisher v. University of Texas at Austin, 132 S. Ct. 1536.
Keywords: litigation, minority trial lawyer, affirmative action, Department of Justice
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
August 23, 2012
Study Examines Effect of Multiple Factors on Firm Diversity
Professor William D. Henderson of the Indiana University Maurer School of Law published a new study, “Diversity by the Numbers [PDF],” in the July 2012 edition of the National Association for Law Placement, Inc.’s (NALP) NALP Bulletin, which found that law-firm partner diversity varied across various regions throughout the country. In particular, it noted that while aggregate percentages of minority partners in law firms were still low, certain geographic locations/legal markets had proportionately higher concentrations of these minority partners.
For example, the study found that while African Americans only comprised 1.5 percent of all reported NALP Directory (a resource used by law students during recruitment season for summer associate positions) partners, they accounted for 2.5 percent of partners in Washington, D.C., and 3.9 percent of partners in Atlanta, Georgia. Similarly, although Hispanics comprised only 1.3 percent of all NALP Directory partners, they made up 3.9 percent of all law partners in the U.S. Southeast, excluding Atlanta. Nearly 45 percent of all Asian law partners were concentrated in Los Angeles, San Francisco, and the West Coast/Rocky Mountain region. By contrast, minority partners accounted for only 1.1 percent of all partners in New York City.
The study went on to opine that the best way to increase the proportional diversity of partners in large law firms is to increase the number of diverse entry-level attorneys. Henderson noted that the following four factors had a significant impact on the number of diverse entry-level associates at any given law firm:
- the geography of the branch office (as noted above, minority candidates are drawn to places where similar minorities have traditionally bee successful);
- the firm and office size (diverse candidates were generally drawn to large firms with more exhaustive recruiting programs);
- the New York City effect (noting that while many diverse associates began careers in New York City, very few associates there—including majority associates—actually make partner); and
- the existing diversity of the firm’s partners (“the best predictor of minority associate recruitment is the percentage of minority partners”).
On a separate note, the study noted that those firms who focused on associate development (in other words, those who provided a clear roadmap to partnership and provided clear programs for associate development/promotion) could increase firm diversity levels by retaining a higher proportion of newly recruited diverse attorneys.
The data used during the study was taken from the 2005–2006 edition of the NALP Directory.
Keywords: litigation, minority trial lawyer, diversity, legal profession
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
August 23, 2012
Boy Scouts Reaffirms Policy of Barring Openly Gay Members
On July 17, 2012, the Boy Scouts of America (BSA) announced that it would continue its policy of excluding openly gay boys from membership and excluding homosexual adults from serving as scoutmasters.
The policy states, “While the B.S.A. does not proactively inquire about the sexual orientation of employees, volunteers or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the B.S.A.”
In a previous 2000 decision, the U.S. Supreme Court upheld 5–4 the right of the BSA to expel a gay assistant scoutmaster. The Court stated that the BSA had the right to determine the values it wanted to portray because it is a private organization. After experiencing significant public pressure to reevaluate the issue, the BSA formed a committee in 2010 to determine whether the policy was in the best interests of the organization. Girl Scouts, the Boys and Girls Clubs, and 4-H Clubs all forbid discrimination based on sexual orientation. The committee just released its decision affirming the policy.
Keywords: litigation, minority trial lawyer, homosexuality, Boy Scouts of America
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
August 23, 2012
Title IX, Now 40 Years Old, Let Women Win Big at Olympics
This year marks the 40th anniversary of Title IX, the law that opened the world of sports to America’s women and girls. This is also the year that women made the strongest presence in the Olympics.
The London Games featured more female athletes than any other Olympic Games in history. Almost 5,000 women from more than 200 nations appeared. For the first time, women represented every national team. Additionally, more women than men made the U.S. team, and women won more gold medals than the American men. The United States took home 46 gold medals—more than any other nation—and U.S. women won 29 of them.
Arguably, this success is due in part to the fundamental change that occurred with the passing of the Education Amendments Act of 1972. This act, more commonly known as Title IX, was the first comprehensive federal law to bar gender discrimination in all aspects of education. The impact of Title IX was evident to observers of the recent Olympics. Prior to 1972, there was no provision in education for funding women’s organized sports. The first full sports scholarship was not granted to a woman until 1974. If not for Title IX, the impressive talents of American female athletes would not have been featured in the London Olympics.
Keywords: litigation, minority trial lawyer, Olympics, Title IX
—Joseph M. Hanna, Goldberg Segalla, Buffalo, New York
Right to Effective Counsel Extends to Plea Bargains
In March 2003, Anthony Cooper pointed a gun at the head of Kali Mundy and fired. The shot missed and the woman fled with Cooper in pursuit, firing his gun at her. Eventually, Mundy was shot in the abdomen, buttocks, and hip, but she survived. Cooper was later charged under Michigan law with assault with the intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, and other crimes.
Before trial, prosecutors twice offered to dismiss two of the charges and recommend a sentence of 51–85 months on two remaining charges in exchange for a plea of guilty. Cooper rejected these offers after his attorney allegedly advised him that the prosecution would not be able to establish his intent to murder Mundy because she had been shot below the waist. Cooper also rejected a third, less favorable plea offer made on the first day of trial. Cooper was convicted after trial on all counts and received a mandatory minimum sentence of 185–360 months’ imprisonment.
On appeal, Cooper’s claim of ineffective assistance of counsel was rejected by the Michigan courts. Cooper then asserted this claim in a petition for federal habeas relief, which the federal district court conditionally granted after finding that the Michigan appellate court had unreasonably applied the constitutional standards for effective assistance of counsel as set forth in Strickland v. Washington, 474 U.S. 52 (1985). The Sixth District Court of Appeals affirmed after finding that the performance of counsel was deficient when he informed Cooper of an incorrect legal rule that resulted in Cooper losing an opportunity to plead guilty and receive the lower sentence that was offered to him.
On certiorari, the Supreme Court vacated the decision of the Sixth Circuit in a splintered 5–4 decision authored by Justice Kennedy. In so doing, the majority concluded that the Sixth Amendment right to counsel extends to the plea-bargaining process. The Supreme Court also set forth the appropriate standards for review of such a claim at the plea-bargaining stage and remanded the case so that the state of Michigan could reoffer the plea.
To establish prejudice under Strickland, a criminal defendant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694. In the context of a plea, the defendant “must show the outcome of the plea process would have been different with competent advice.” As Justice Kennedy writes:
[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.
In adopting this standard, the majority rejected a narrower view of the Sixth Amendment proposed by the state of Michigan and the solicitor general. Under that view, no prejudice could arise under Strickland if the defendant who rejects a plea offer is later convicted at a fair trial.
The majority further noted that, as a consequence of the undisputed ineffective assistance of his attorney, Cooper went to trial and “received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty.” As such, “[e]ven if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.”
Keywords: litigation, minority trial lawyer, plea bargains, effective assistance of counsel
—Bobbie K. Ross, chair of the Civil Rights Litigation Committee’s Second Amendment Subcommittee
Section of Litigation Holds Mock Trial at Annual Conference
The 2012 ABA Section of Litigation Annual CLE Conference crystallized my passion to become a litigator. It was an excellent investment! While there were several informative sessions, “Anatomy of a Trial Boot Camp” was by far the conference highlight. There, industry leaders taught the fundamentals of trial through lectures and an all-day mock trial. Here are the most important points.
Theory and Theme
Every case should have three theories—legal, factual, and persuasive. A case theory is an explanation of what really happened from your client’s perspective. This theory should be advanced through a consistent theme told as a story. And, like any great story, it should include a beginning, middle, and end.
Although basic, these essentials are often overlooked, and the jury is left to draw inferences that may or may not be favorable. Don’t leave anything to chance. Lead the jury. Tell them exactly where you want them to go and which inferences to draw in your favor, and persuade them through your theories and theme.
Opening Statement
Own the room. While all eyes are on you, make it count. Make movements with intentionality. Show the appropriate deference to the court. In doing so, not only does it show professionalism, but it also enhances your credibility with the jury. Lastly, don’t overpromise (in other words, don’t make statements like, “in this case, you will see”). If you aren’t able to keep that promise due to happenstance or evidence preclusion, it will adversely affect your credibility.
Direct and Cross-Examination
Continue to advance your case through each witness. Phrase questions in a manner consistent with your theme. Make the points memorable and understandable to a layperson. Do not follow a script. While you should thoroughly prepare questions, it’s more important to listen to the responses of the witness and ask questions accordingly.
Closing Argument
Close effectively. People tend to remember the first and last thing you’ll say—this is called primacy and recency. With this in mind, your closing argument should closely resemble your opening statement. There, you told the jury where you’d take them, and now that you have, use the closing argument to arm the jurors who you’ve convinced throughout the trial so that they can convince others during deliberation. If it is allowed in your jurisdiction, request jury instructions prior to your closing. This prevents a closing that’s too technical. Lastly, don’t overdo it. Don’t use the closing as a way to review the full case. That will bore the jury. Use the closing as a way to highlight your most important points in a way that’s consistent with your theories and theme. Again, the closing is simply a way to arm your jurors who decide in your favor.
Keywords: litigation, minority trial lawyer, case theory, opening statement, closing statement, examination
—LaKeisha Randall, J.D. pending Georgia licensure
Even Nonviolent Felons Lack Right to Bear Arms
In McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), a plurality of the U.S. Supreme Court extended to the states the right of citizens to keep and bear arms. This right under the Second Amendment of the U.S. Constitution was expressed in District of Columbia v. Heller, 554 U.S. 570 (2008). A Wisconsin appellate court, however, has qualified the scope of the Second Amendment by finding as constitutional a Wisconsin statute that bans felons, including nonviolent ones, from possessing firearms. State of Wisconsin v. Pocian [PDF], Wisconsin Appeal No. 2011AP1035-CR (April 11, 2012).
In 1986, the defendant, Thomas Pocian was convicted of three counts of writing forged checks. Although he had completed his probation, Pocian remains a felon because of this conviction. Nearly 22 years later, in November 2008, Pocian shot two deer with a rifle borrowed from his father. After Pocian registered the deer with the Wisconsin Department of Natural Resources (DNR), he was charged with being a felon in possession of a firearm in violation of Wisconsin Statute Section 941.29, which prohibits a felon from possessing a firearm. Pocian moved to dismiss the charge on the grounds that the statute was facially unconstitutional as applied to him. The trial court denied the motion and Pocian filed an interlocutory appeal that was granted. State of Wisconsin v. Pocian, supra, at 3.
In affirming, the court of appeals concluded that the ban on felons possessing firearms is constitutional and extends to all felons. In so doing, the court noted the language found in District of Columbia v. Heller [PDF], 554 U.S. 570, 626–7 (2008), which states that nothing in that decision “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Pocian, supra, at 5. As a result, the Wisconsin court noted that, under Heller, such “regulatory measures are ‘presumptively lawful.’” Id. (citing Heller at 627 n. 26).
While the Wisconsin Court of Appeal had previously upheld Wisconsin Statute Section 941.29 against an over-breadth challenge in State v. Thomas, 683 N.W.2d 497 (2004), the Pocian court noted that the ruling in Thomas was based on a standard of review of rationale basis that Heller indicated would not be appropriate in cases involving the Second Amendment. Pocian at 6–7 (citing Heller, 554 U.S. at 628, n. 27).
The question before the court in Pocian was therefore the standard of review to be applied in Second Amendment cases in light of Heller and McDonald. Pocian adopted an intermediate scrutiny used by the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). Under this standard, a statute passes constitutional muster if it is “substantially related to an important governmental objective.” Relying on United States v. Williams, 616 F.3d 685 (7th Cir. 2010), Pocian concluded that public safety is an important governmental objective, and denying firearms to convicted felons is substantially related to that objective. Relying on Williams, the Pocian court concluded that it was constitutional to categorically ban felons from possessing guns. Pocian at 7.
Pocian’s as-applied challenge was also rejected. In so doing, the court of appeal noted that, while Pocian was a nonviolent felon, public safety comprises more than just the prevention of violence—it includes the prevention of acts that are punished as felonies. As a consequence, the “legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related” to the goal of public safety. Pocian at 8. Relying on United States v. Yancey, 621 F.3d 681 (7th Cir. 2010), the court of appeal further noted that “most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” Pocian at 8 (quoting Yancey at 684-85).
Keywords: litigation, minority trial lawyer, Second Amendment, felons, Wisconsin
—John Pierce, Bristol, Virginia
May 16, 2012
Ninth Circuit Grants John Yoo Qualified Immunity
John C. Yoo is a former law clerk to Justice Clarence Thomas—a former general counsel of the U.S. Senate Judiciary Committee and a former deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel (OLC), where, during the administration of George W. Bush, he authored an August 2002 memoranda that narrowly defined the term “torture” and that is now known as the Torture Memo. It was in his capacity as an official of the OLC that Yoo was sued in federal court by convicted felon Jose Padilla and his mother for allegedly subjecting Padilla to coercive interrogation and harsh detainment conditions that Padilla attributes to the Torture Memo. On May 2, three judges of the Ninth Circuit concluded that Yoo, a professor at Berkeley Law School, “must be granted qualified immunity” from the claims of Padilla in light of a 2011 decision of the U.S. Supreme Court. Jose Padillia and Estela Lebron v. John Yoo, U.S. Court of Appeals for the Ninth Circuit Case No. 09-16478, 12 C.D.O.S. 4875.
Padilla was arrested in May 2002 at a Chicago airport on a material witness warrant issued by the district court for the Southern District of New York, where he was held in jail. During this time, President Bush declared Padilla an “enemy combatant,” and he was transferred to a military prison in Charleston, South Carolina, where Padilla was held for more than three and a half years.
In January 2006, Padilla was moved to a federal detention center in Miami, Florida, where he stood trial for federal criminal charges unrelated to his status as an enemy combatant and was found guilty. On appeal, a divided Eleventh Circuit affirmed Padilla’s conviction, vacated his sentence as unreasonably low, and remanded for resentencing.
Two years after his military detention ended in January 2008, Padilla and his mother filed a civil action against Yoo, claiming that he set in motion Padilla’s interrogation and detention “by formulating unlawful policies for the designation, detention and interrogation of suspected ‘enemy combatants’ and by issuing legal memoranda designed to evade legal restraints on those policies and to immunize those who implemented them.” The first amended complaint further alleged that, during his detention, Padilla was subjected to:
prolonged isolation; deprivation of light; exposure to prolonged periods of light and darkness, including being ‘periodically subjected to absolute light or darkness for periods in excess of twenty-four hours’; extreme variations in temperature; sleep adjustment; threats of severe physical abuse; death threats; administration of psychotropic drugs; shackling and manacling for hours at a time; use of “stress” positions; noxious fumes that caused pain to eyes and nose; loud noises; withholding of any mattress, pillow, sheet or blanket; forced grooming; suspensions of showers; removal of religious items; constant surveillance; incommunicado detention, including denial of all contact with family and legal counsel for a 21-month period; interference with religious observance; and denial of medical care for ‘serious and potentially life-threatening ailments, including chest pain and difficulty breathing, as well as for treatment of the chronic, extreme pain caused by being forced to endure stress positions.
Yoo’s motion to dismiss was denied by the district court, which concluded that the plaintiffs could pursue an action against Yoo under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The crux of the district court’s decision was that “any reasonable office would have understood in 2001–2003 that United States citizen enemy combatants in military detention must be afforded at least the constitutional and statutory rights afforded to ordinary prison inmates.” Padilla v. Yoo, supra.
In overruling the district court, the Ninth Circuit relied on Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), which held that the former attorney general, John Ashcroft, “did not violate clearly established law by allegedly authorizing federal prosecutors to use material witness arrest warrants, supported objectively by reasonable suspicions, as a pretext for detaining terrorism suspects.” Moreover, the Ninth Circuit concluded that Yoo was entitled to qualified immunity “because it was not clearly established in 2001–03 that the treatment to which Padilla says he was subjected amounted to torture.” In so doing, the Ninth Circuit assumed “without deciding that Padilla’s alleged treatment rose to the level of torture,” but in 2001–03 it was not clearly established that Padilla’s alleged treatment was torture. As such, Yoo was immune from suit.
Keywords: litigation, minority trial lawyer, Ninth Circuit, torture, John C. Yoo
—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California
May 8, 2012
Supreme Court Hears Oral Argument in Arizona Case
The U.S. Supreme Court heard oral argument on the constitutionality of Arizona’s controversial law seeking to enforce federal immigration, Senate Bill (S.B.) 1070, on April 25, 2012, in the case of Arizona v. United States. Among other things, section 2B of the statute requires Arizona law enforcement to attempt to verify the immigration status of those who are stopped or arrested if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Only eight justices heard the matter following the recusal of Justice Kagan. Former Solicitor General Paul Clement argued on behalf of the state of Arizona; Solicitor General Donald Verrilli Jr. argued for the United States.
The state of Arizona asserted that it bears a disproportionate share of the costs of illegal immigration. Arizona further asserted that it adopted federal standards when it decided to devote state resources to enforce federal immigration laws in an effort to reduce the cost of illegal immigration.
Before Verrilli could begin speaking, Chief Justice Roberts adamantly noted that the case was not about racial profiling. Verrilli acknowledged this and made clear that the government’s brief did not mention racial profiling. Rather, the United States asserted that Arizona lacks the right to exclude from its borders persons who enter the United States unlawfully because such authority is exclusively vested by the Constitution with the federal government. In response, Justice Scalia asked, “[W]hat does sovereignty mean if it does not include the ability to defend your borders?” The questioning from other justices appeared to reject the government’s contention that S.B. 1070 was an effort to enforce federal law.
Instead, many of the justices appeared sympathetic to the argument that S.B. 1070 was “an effort to let [the federal government] know about violations of Federal law.” As a consequence, the government appeared to shift its argument, asserting that the Arizona law “has significant real and practical foreign relations effects.” Many of the justices, however, did not seem receptive to this argument.
Most of the discussion centered on section 2(B) of the Arizona statute. The liberal members of the Court seemed to focus on the length of time a person could be detained while law enforcement investigated their immigration status. The conservative justices, led by Justice Scalia, focused on whether the state of Arizona could be denied the right to close its borders to those having no right to be there. Toward this end, the state of Arizona argued repeatedly that individuals investigated under section 2(B) would not be detained beyond the limits established by the Fourth Amendment.
Section 5(C) was also discussed. This aspect of the Arizona law makes it an offense for individuals without proper immigration paperwork to seek employment in Arizona. Section 3 of the statute criminalizes intentionally failing to obtain and carry legal immigration papers in Arizona.
The majority of the Court appeared to favor upholding section 2(B) of the Arizona law. The Court’s inclination as to the other provisions of the statute, however, was less clear, especially because of the limited time allocated to these provisions.
Keywords: litigation, minority trial lawyer, Supreme Court, Arizona, immigration
—Bobbie K. Ross, member of the Minority Trial Lawyer editorial board and chair of the Second Amendment Civil Rights Litigation Subcommittee
March 28, 2012
Rule of Professional Conduct Violates First Amendment
In an unpublished opinion, the Court of Appeals for the Second Circuit has found that Rule 7.4 of the New York Rules of Professional Conduct violates the First Amendment. J. Michael Hayes, Esq. v. State of New York Attorney Grievance Committee of the Eighth Judicial District, et al, Docket No. 10-1587–CV (March 2012). Rule 7.4 requires a prescribed disclaimer to be made by attorneys who state that they are certified as a “specialist.”
In 1995, the appellant, J. Michael Hayes, was awarded a certification in civil trial advocacy by the National Board of Trial Advocacy (NBTA), which is now a division of the National Board of Legal Specialty Certification. The NBTA is accredited by the American Bar Association. Following his certification, Hayes began referring to himself in various advertisements and in his letterhead as a “Board Certified Civil Trial Specialist.”
In June 1999, the predecessor of Rule 7.4 went into effect. It contained the same text as Rule 7.4 and allowed attorneys who are certified as a specialist by a private organization approved for that purpose by the American Bar Association to state that they are a “certified specialist,” provided that they identify the certifying organization and “prominently” make the following statement: “[1] the [name of the private certifying organization] is not affiliated with any governmental authority, [2] certification is not a requirement for the practice of law in the State of New York and [3] that certification does not necessarily indicate greater competence than other attorneys experienced in this field of the law.” Hayes, supra at 4.
In May 2000, the New York Grievance Committee contacted Hayes about the print size of a disclaimer used on a billboard advertisement he placed in Buffalo, New York. The advertisement contained the required disclaimer printed in six-inch letters, one inch larger than that required for federal cigarette warnings on billboards. The Grievance Committee also advised Hayes that it was opening an investigation into his use of the phrase “board certified” on his letterhead, which contained no disclaimer. Subsequently, the Grievance Committee advised Hayes that it would recommend formal disciplinary action be taken against him unless he modified the letterhead.
Hayes then filed a declaratory judgment action in the Western District of New York, but the court abstained and dismissed the action because of the pending state disciplinary action. As a consequence, Hayes advised the Grievance Committee that he would comply with the predecessor to Rule 7.4, and the investigation was closed.
In December 2001, Hayes filed a second declaratory judgment action in the same court. The district court concluded that the rule was not unconstitutionally vague as it applied to Hayes, that the disclaimer was sufficient to enable “a person ‘of ordinary intelligence’” to understand what was required, and that the rule provided sufficiently explicit standards to guide the Grievance Committee in the enforcement of the regulation.
The Second Circuit reversed. Although it determined as valid that part of Rule 7.4 requiring attorneys to state that the certifying organization was not “affiliated with any governmental authority” because this provision complied with the standards for regulating commercial speech as expressed in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the court of appeal nonetheless found other aspects of the rule to be unconstitutional.
Specifically, requiring attorneys to state that certification is not a requirement for practicing law failed the test in Central Hudson because it was difficult to imagine that a significant portion of the public would believe that certification was needed to practice law and no harm was self-evident. See Hayes, supra at 15–16.
Likewise, the aspect of Rule 7.4 requiring attorneys to state that specialization or certification “does not necessarily indicate greater competence than other attorneys experienced in this field of law” also violated the First Amendment. As the court of appeal noted, this part of Rule 7.4 had “clear potential to mislead” because the qualifications necessary for certification “may reasonably be considered by the certifying body to provide some assurance of ‘competence’ greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead.” Id. at 17.
Finally, the Second Circuit found that the disclaimer rule was unconstitutionally void for vagueness as it applied to Hayes because a lawyer of average intelligence could not anticipate that the six-inch lettering as used by Hayes would not meet the disclosure requirement.
Keywords: litigation, minority trial lawyer, First Amendment, New York, Second Circuit
—Bobbie K. Ross, member of the Minority Trial Lawyer editorial board and chair of the Second Amendment Civil Rights Litigation Subcommittee
February 27, 2012
Dissent Would Take Defendant's Life for Attorney Errors
The world now knows the story of Cory R. Maples, or so it seems. Sentenced to death by an Alabama jury following his conviction for a double murder, Maples was subsequently abandoned by his lawyers during post-conviction proceedings, resulting in his failure to timely appeal the trial court’s order denying him post-conviction relief. This failure, known in the parlance of federal habeas practice as a procedural default, lead to the rejection by an Alabama federal district court of Maples’ petition for writ of habeas corpus, a decision affirmed by a split panel of the Eleventh Circuit. In so doing, the court of appeals pointed to the default as the reason for rejecting the petition. Maples would now be scheduled for execution but for the U.S. Supreme Court, which reversed the Eleventh Circuit after concluding that Maples was blameless for the default and that, under the circumstances, “no just system would lay the default at Maples’ death-cell door.” Maples v. Thomas, Commissioner, Alabama Department of Corrections, 565 U.S. ___ (2012). The opinion, however, was not unanimous.
In their dissent, Justices Scalia and Thomas would affirm the Eleventh Circuit because the majority opinion “invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys . . . .” Maples, slip op., Dissent, at 11. While recognizing that a default will not bar habeas review if a “petitioner demonstrates cause and actual prejudice,” the dissent would nonetheless hold a capital defendant responsible for the mistakes and omissions of counsel “because the attorney is the petitioner’s agent” and the petitioner therefore bears “the risk of attorney error.” Id. at 2–3. This rule of agency law, Justices Scalia and Thomas assert, apply when a criminal defendant has no constitutional right to effective assistance of counsel, such as in post-conviction and habeas proceedings. Id. at 3. In such instances, “the client bears the risk of all attorney errors made in the course of the representation, regardless of the egregiousness of the mistake.” Id. (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991)) (emphasis added).
In contrast, mistakes made by counsel in proceedings where a defendant has a constitutional right to effective assistance of counsel “may constitute cause to excuse a resulting procedural default” because the state’s “failure to provide an effective attorney . . . makes the attorney’s error chargeable to the State, and hence external to the defense.” Maples, slip op., Dissent, at 3 (citing Strickland v. Washington, 466 U.S. 668 (1984)). As Justice Scalia quotes from Coleman, it “is not the gravity of the attorney’s error that matters, but that it constitutes a violation of petitioner’s right to counsel, so that the error must be seen as an external factor.”). Id.
In the view of the dissent, Maples failed to demonstrate cause excusing his default. While acknowledging that he was abandoned by the two Sullivan & Cromwell associates handling his case pro bono, the dissent nonetheless contends that Maples was not abandoned by either the firm or by Alabama local counsel. As such, Justices Scalia and Thomas would have Maples pay with his life for the mistakes of his lawyers. They reach this conclusion although the majority opinion states that Sullivan & Cromwell became aware of the default only after receiving a telephone call from the mother of the condemned. See Maples, slip op. at 9. The majority further notes that local counsel, who did not bother to call Sullivan & Cromwell after receiving the order denying the motion for post-conviction relief, “did not ‘operat[e] as [Maples’] agent in any meaningful sense of that word.” Id. at 19.
The dissent justifies the harshness of its result on notions of federalism and comity. As Justice Scalia writes, the “doctrine of procedure default reflects, and furthers, the principle that errors in state criminal trials should be remedied in state court” and federal habeas review “imposes significant costs on the States, undermining not only their practical interests in the finality of their criminal judgments . . . but also the primacy of their courts in adjudicating the constitutional rights of defendants prosecuted under state law.” Maples, slip. op., Dissent, at 1 (citation omitted). As such, precedent and the need to ensure “an orderly system of criminal litigation conducted by counsel” “allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.” See id. at 10. In other words, retain your lawyer with care.
Keywords: litigation, minority trial lawyer, procedural default, Supreme Court
—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California
Ninth Circuit Affirms Same-Sex Marriage Ruling
In a highly anticipated and widely reported decision, a Ninth Circuit Court of Appeals panel affirmed a district court judgment ruling that California’s constitutional amendment banning same-sex marriage violated the Fourteenth Amendment to the U.S. Constitution. Prior to 2008, the California Supreme Court held that the California Constitution guaranteed the right to marry to both same-sex and opposite-sex couples. However, in November of 2008, through a ballot referendum known as Proposition 8, the people of California amended their state constitution to eliminate the right of same-sex couples to marry. Shortly after that amendment was passed, a group of plaintiffs brought suit in federal court to challenge the new law. The district court found that Proposition 8 was unconstitutional and struck it down.
The state of California appealed the district court’s decision to the Ninth Circuit Court of Appeals. In the Ninth Circuit case, Perry v. Brown [PDF], Case Nos. 10-16696 and 11-16577, the plaintiffs argued that, among other things, Proposition 8 and the California ban on same-sex marriage violated the Equal Protection Clause. A majority of the three-judge panel agreed with the plaintiffs and affirmed the district court. The Perry majority held that Proposition 8, which only excluded same-sex couples from marrying and did not impact any other rights of same-sex couples to enter into statutory “domestic partnerships,” improperly targeted a minority group. The court reasoned that, because Proposition 8 left in place the ability of same-sex couples to engage in all of the activities typically associated with marriage, it could not reasonably have been enacted for purposes such as promoting childrearing by biological parents, encouraging responsible procreation, or controlling the education of schoolchildren. Accordingly, the panel majority concluded that Proposition 8 lacked a purpose and only served to deny the legal designation of “marriage” from a particular minority group.
The Perry court specifically declined to address whether same-sex couples have a fundamental right to marry under the U.S. Constitution. Many commentators and observers have predicted that the case and the issue of same-sex marriage will now head to the U.S. Supreme Court.
Keywords: litigation, minority trial lawyer, California, same-sex marriage, Proposition 8
—Brian Josias, Chicago, Illinois
Republicans Seek to Reform Post-Booker Sentencing
In the landmark 2005 case United States v. Booker, the U.S. Supreme Court, continuing and expanding on a line of cases that slowly chipped away at the sentencing restrictions placed on judges by legislatively imposed sentencing guidelines, turned the criminal sentencing regime in the federal courts on its head. In Booker, the Supreme Court held that the U.S. sentencing guidelines, which courts previously had to follow in meting out sentences to federal criminal defendants, unconstitutionally deprived defendants of their rights under the Sixth Amendment to the U.S. Constitution. The Court held that courts could no longer blindly adhere to the sentencing guidelines and that, instead, courts could only use the guidelines as nonmandatory suggestions.
Over the ensuing seven years, district and appeals courts have slowly realized that, when they sentence the more than 80,000 criminals that pass through their doors every year, the sentences given must be decided by the judge alone, based on the dictates of the applicable statute and notions of fairness, not just the calculations of the sentencing guidelines.
Although the changes brought about by Booker have generally been welcomed by defense attorneys and advocates for criminal defendants, in the past few months, Republicans in Congress have called for a return to a system that provides less discretion to the sentencing judge and will yield fewer “breaks” and longer sentences for most defendants. According to Republican Representative James Sensenbrenner and other critics of the post-Booker sentencing process, the current sentencing regime results in unfair disparities between similarly situated defendants based on factors such as geography and, more disturbingly, race.
Many have argued that, under Booker, black, male defendants have been the victims of unfair treatment, and the statistics calculated by the U.S. Sentencing Commission, the government agency that crafts the sentencing guidelines, reveal that, post-Booker, the average sentence for a black male was 20 percent longer than that for a white male. Defenders of the current system respond that this disparity is largely the result of white males being given lesser sentences, rather than black males receiving tougher sentences. An additional factor that may be partially to blame for the sentencing disparities is a perception that judges believe that the sentences recommended by the guidelines are overly harsh, especially in the areas of corporate fraud and child pornography.
Although defenders of the current system have urged Congress to leave it in place, congressional Republicans have proposed tough new mandatory minimum sentences to be imposed by statute and a reduction of the budget and role of the sentencing commission. The House Judiciary Committee plans to conduct more hearings on the issue in the spring.
Keywords: litigation, minority trial lawyer, sentencing guidelines, United States v. Booker
—Brian Josias, Chicago, Illinois
Holder Tackles States' Efforts to Restrain Ballot Access
In the past several years, states across the country have launched efforts to make it more difficult for many people or groups of people to gain access to the ballot box. Thirteen states have passed new voting laws that include regulations that require government-issued photo IDs to vote or to register to vote, shorten early voting periods, or limit voter-registration efforts by third-party groups. Supporters of these laws claim that they are necessary to combat voter fraud. Opponents of these new voter-registration laws often complain that they are intended to disenfranchise minorities and argue that multiple studies and investigations, including an investigation by President George W. Bush’s Justice Department, demonstrate that voter fraud in the United States is not a significant problem. Those opposed to the new laws claim that they amount to a “modern-day equivalent of a poll tax” and cite studies that estimate that the new laws could affect more than five million voters across the country—primarily minorities who lack the necessary government-issued photo IDs.
While speaking at an event honoring the Martin Luther King Jr. holiday in Columbia, South Carolina, Attorney General Eric Holder indicated that the Department of Justice intends to aggressively review these new laws to ensure that they comply with the 1965 Voting Rights Act, which requires that 16 mostly Southern states with histories of discrimination secure Justice Department approval prior to making voting-law changes. Providing evidence for Attorney General Holder’s pledge, in late 2011, the Justice Department’s Civil Rights Division ruled that South Carolina’s new voter-identification law was illegal because it would disproportionately impact minorities.
Attorney General Holder also indicated that the Justice Department intended to forcefully respond to several lawsuits filed by states challenging the provisions of the Voting Rights Act itself. These lawsuits have asserted that developments in race-relations have outstripped the purpose and need for the law and have sought to have the law invalidated. In Holder’s South Carolina remarks, he responded to the allegations in these suits by noting that, although much progress has been made, “the reality is that—in jurisdictions across the country—both overt and subtle forms of discrimination remain all too common.”
In addition, the issues of voter fraud and the new state voting laws have been frequently raised in the ongoing race for the GOP presidential nomination, and some candidates for the GOP nomination have claimed that the Voting Rights Act permits unwanted meddling by the federal government. Despite this political attention, Holder stated that the Department of Justice would continue to vigorously scrutinize voting laws across the country to make certain that all Americans can vote without fear of discrimination.
Read the entire speech at the Department of Justice’s website.
Keywords: litigation, minority trial lawyer, Department of Justice, voter registration
—Brian Josias, Chicago, Illinois
December 20, 2011
California Supreme Court Reverses Capital Murder Convictions
In a rare occurrence, a unanimous California Supreme Court reversed the guilt and death judgments imposed against two Los Angeles gang members who were convicted in 1997 of committing two murders with special circumstances. People v. Allen et al, California Supreme Court Case No. S066939, 11 California Daily Opinion Service (C.D.O.S) 14528. Reversal was ordered because the trial court abused its discretion in removing a juror during deliberations in the guilt phase of the trial in violation of California statutory law. In so doing, the California Supreme Court avoided defendants’ constitutional claims. The rationale expressed by the California Supreme Court may prove instructive in other cases involving juror removal.
Defendants were members of a Los Angeles gang. Allen, supra, at 14528. At trial, witnesses testified that defendant Allen shot the victims as they sat in a parked car. One witness, Carl Connor, claimed that he was near the scene and identified Allen as the shooter. Defendants, however, impeached Connor by introducing into evidence his employment timecard that showed he was at work the day of the murders. Conner, however, testified that he and a coworker named “Jose” frequently clocked in for each other so that their timecards would show that they were at work even when they were not. Id. at 14528.
During deliberations in the guilt phase of the trial, two jurors advised the court that another juror, No. 11, had made up his mind before the case had been submitted. Over defendants’ objections, the trial court then spoke individually to each juror regarding the conduct of Juror No. 11, who denied having made up his mind about the case before deliberations; admitted stating during deliberations that the prosecution had not “convinced” him; and further admitted to stating that based on his work experience, Hispanics do not falsify timecards. Juror No. 11 was not Hispanic. Id. at 14529. The trial court granted the prosecution’s motion to discharge Juror No.11, finding that he had made up his mind before deliberations and based his decision of the credibility of Connor not on the evidence, but on the personal opinions of how Hispanics as a group behaved. Id. at 14530. Defendants were convicted and sentenced to death.
In reversing, the California Supreme Court noted that “[g]reat caution is required in deciding to excuse a sitting juror” because it “may upset the delicate balance of deliberations.” Allen, supra, at 14531. The court further noted that a unanimous criminal verdict is an important and long-recognized safeguard in American law that “rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case.” Because of this importance, review of a juror’s discharge “must appear on the record as a ‘demonstrable reality’” and “involves ‘a more comprehensive and less deferential review’ than simply determining whether any substantial evidence’ supports the court’s decision.” “This heightened standard” protects “a defendant’s fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury, which are also hallmarks in American jurisprudence.” Allen, supra, at 14531 (citation omitted). The court also made clear that a juror is required to “maintain an open mind, consider all the evidence, and subject any preliminary opinion to rational and collegial scrutiny before coming to a final determination. Id. at 14532–14533.
With this in mind, the Supreme Court concluded that the juror’s statements that the prosecution failed to prove its case did not establish prejudgment of the case. As the Court noted, “[a] juror who holds a preliminary view that a party’s case is weak does not violate the court’s instructions so long has his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions, expressed during deliberations.” Id at 14532.
Nor did the juror impermissibly rely on facts not in the evidence when he remarked that Hispanics do no falsify timecards. Rather, the juror’s “positive opinion about the reliability of Hispanics in the workplace” was “an application of his life experience, in the specific context of timecards and the workplace, that led him to conclude Connor was not telling the truth about the shooting.” Id. at 14534. Finally, the court made clear that “[i]t is not the province of trial or reviewing courts to substitute their logic for that of jurors to whom credibility decisions are entrusted.”
—Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA
December 9, 2011
Are Corporations Liable under the Alien Tort and Torture Victim Protection Acts?
The U.S. Supreme Court has granted certiorari in two cases involving the Alien Tort Statute and the Torture Victim Protection Act. Enacted as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) confers on federal district courts’ “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. section 1350. Over two centuries later, Congress enacted the Torture Victim Protection Act (TVPA) and codified it as a note to 28 U.S.C. section 1350. The TVPA creates a private right of action against individuals who engage in torture or extrajudicial killing.
The issue before the Supreme Court is whether corporations can be liable under the ATS and the TVPA. In the summer and fall of 2011, the D.C. and Ninth Circuits concluded that corporations are liable under the TCA. These decisions, however, conflict with the Second Circuit holding in Kiobel v. Royal Dutch Petroleum Company et al, 621 F.3d 111 (2nd Cir. 2010), rehearing en banc denied, 642 F.3d 379 (2nd Cir. 2010); rehearing denied 642 F.3d 268 (2nd Cir. 2011), certiorari granted. Kiobel holds that there is no federal question under the ATS when claims are asserted as to corporations. Kiobel, supra, at 117–120.
In Kiobel, Nigerian citizens alleged that Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations. Kiobel, supra, 642 F.3d at 117. Plaintiffs sought damages under the ATS and relied on international law—but not on a treaty of the United States—as the basis for their claims.
In affirming the district court’s dismissal of some of plaintiffs’ claims and reversing as to those claims that were not dismissed, the Second Circuit concluded that the ATS confers subject-matter jurisdiction over a limited number of offenses that are defined by “customary international law.” The court of appeal characterized such law as “those standards, rules or customs” that affect the “relationship between states or between an individual and a foreign state” and that are “used by those states for their common good and/or in dealings” among or between themselves. Kiobel, supra, at 117–118 (citation omitted). The limited subject matter of the ATS therefore requires federal courts to “examine the specific and universally accepted rules that the nations of the world treat as binding in their dealings with one another.” Id. at 118.
In holding that corporations are not subject to the ATS, Kiobel determined that “the principle of individual liability for violations of international law has been limited to natural persons . . . because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it.” Kiobel, supra, at 119. As a result, because “customary international law imposed individual liability for a limited number of international crimes” the “ATS provides jurisdiction over claims in tort against individuals who are alleged to have committed such crimes.” Id. at 120.
Kiobel, however, conflicts with decisions from other circuits, including John Doe VII et al. v. Exxon Mobile Corporation et al., 654 F.3d 11 (D.C. Circuit 2011), holding that a corporation may be liable under the ATS. Moreover, in late October 2011, the Ninth Circuit concluded in a splintered en banc decision that the ATS extends to the conduct of corporations abroad. Sarei et al v. Rio Tinto, PLC et al., 2011 U.S. App. Lexis 21515.
Kiobel will be argued in tandem with a decision from the D.C. Circuit involving the TVPA. Mohamad et al. v. Rajoub, 634 F.3d 604 (D.C. Circuit 2011). In Mohamad, the sons and widow of a decedent sued the Palestinian Authority and the Palestine Liberation Organization for damages after the defendants allegedly tortured and killed the decedent in violation of both the TVPA and federal common law. The district court dismissed the action, concluding that only a natural person can be sued under the TVPA and that plaintiffs had no claim under federal common law. In affirming, the D.C. Circuit held that the term “individual” as used in the TVPA was intended to denote only natural persons.
Keywords: ATS, TVPA, Alien Tort Statute, Torture Victim Protection Act
—Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA
December 9, 2011
Truth in Savings Act Bars Claims under California Law
A California state appellate court has concluded that the 1996 amendments to the federal Truth in Savings Act (TISA), 12 U.S.C. section 4301 et seq., bar private rights of action under the state’s broad Unfair Competition Law (UCL). Rose v. Bank of America, N A., 11 California Daily Opinion Services (C.D.O.S.) 14134.
The plaintiffs in Rose were deposit account holders who alleged in a putative state class action that the Bank of America failed to properly notify them of fee increases in violation of TISA. Enacted in 1991, TISA requires banks and other depository institutions to provide, inter alia, “clear and uniform disclosure” of “the fees that are assessable against deposit accounts.” 12 U.S.C. section 4301(b). The purpose is to allow consumers to “make a meaningful comparison between the competing claims of depository institutions with regard to deposit accounts.” Section 4310 of title 12 contained a private attorney general provision that provided a private right of action against depository institutions that failed to comply with either TISA or the regulation promulgated pursuant to the statute known as Regulation DD.
The private attorney provision of TISA, however, was repealed by Congress in 1996 through enactment of a sunset provision that became effective September 30, 2001. Schall v. Amboy National Bank, 279 F.3d 205, 209, note 2 (3rd Cir. 2002). The repeal of section 4310 “entirely eliminated the [private] cause of action, thereby releasing banks from future claims of private parties.” Rose v. Bank of America, supra, quoting Schnall v. Amboy National Bank, supra, 279 F.3d at 209. Federal agencies, however, may enforce compliance with TISA. Schnall v. Amboy, supra, at 209 n.2.
The UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” Rose, supra. The scope of the statute is broad and encompasses “anything that can properly be called a business practice and that at the same time is forbidden by law.” Id. Moreover, the UCL borrows violations from other laws, making them independently actionable. See Korea Supply Co. v. Lockheed Martin Corporation, 29 Cal. 4th 1134, 1143 (2009). Notwithstanding its scope, the UCL cannot borrow violations from others laws that bar the action.
In holding that TISA bars claims under the UCL, the Rose court noted that Congress not only rejected a private right of action under TISA but also rebuffed legislation proposed in 2001 to reinstate civil liability. As such, the court concluded that “[a]llowing private plaintiffs to recover on a UCL claim based solely on TISA violations would constitute an ‘end run’ around the limits of enforcement set by Congress.” Id. (citing Gunther v. Capital One, N. A., 703 F.Supp. 2d 264, 270–271 (E.D. N.Y 2010)).
Keywords: Truth in Savings Act, Unfair Competition Law, Bank of America, Rose
—Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA
December 8, 2011
Ninth Circuit Grants Qualified Immunity to Officers Using Tasers
The Ninth Circuit recently issued an opinion holding that the use of Tasers by law enforcement officers to subdue individuals suspected of committing minor offenses is subject to constitutional limits on the use of excessive force.
Two cases, Mattos v. Agarano and Brooks v. City of Seattle, were heard together en banc consolidated for disposition. Both dealt with plaintiffs-appellees who were tased by law enforcement after encounters surrounding minor offenses.
Malaika Brooks was pulled over for speeding. When she refused to sign the ticket or exit her vehicle, the officers tased her even though she had informed them that she was pregnant and “less than 60 days from having [her] baby.” After being tased multiple times, Brooks was detained and ultimately taken into custody.
Jayzel Mattos was tased when the police responded to a domestic dispute after Jayzel and her husband, Troy, had an argument. When Mattos stepped in between one of the officers and her husband to try to diffuse the situation, the officer tased her. Mattos and her husband were then arrested.
After their respective incidents, Brooks and Mattos both filed lawsuits under 42 U.S.C. § 1983, seeking damages for alleged Fourth Amendment violations. The officers claimed they were entitled to qualified immunity, but the lower court in both cases disagreed. The officers then appealed to the Ninth Circuit.
For qualified immunity to apply, it must be shown that (1) the facts shown must make out a clear violation of a constitutional right, and (2) that constitutional right must have been “clearly established” at the time of the violation.
Relying on Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010), the Ninth Circuit found that although both Brooks and Mattos had alleged constitutional violations surrounding excessive force, the officers who tased them were entitled to qualified immunity, because at the time that each woman was tased, “‘there was no Supreme Court decision or decision of [the Ninth Circuit] addressing’ the use of a taser in dart mode.” Because of the lack of authority, the court concluded that reasonable officers “could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances” at hand and that the contours of the constitutional right alleged were not clearly established at the time of the violations.
Keywords: Ninth Circuit, tasers, law inforcement
—Bobbie K. Ross, Michel & Associates, P.C., Long Beach, CA
December 7, 2011
Minority Teachers Are on the Rise, but Retention Is a Problem
A recent study by two researchers from The University of Pennsylvania shows that the efforts of government agencies and nonprofit organizations to recruit minority teachers has largely worked. Researchers Richard Ingersoll and Henry May found that the teaching field is much more diverse today than it was 20 years ago. While there was a 41 percent growth rate of white teachers, the growth rate of minority teachers was 96 percent. Since the late 1800s, the number of minority teachers increased from 325,000 to 642,000.
However, while these numbers indicate that recruitment strategies are working, research shows that these efforts have not been enough to bridge the gap between the number of minority students and minority teachers. For example, in the 2008–09 academic year, 41 percent of students in elementary and secondary schools were minority, yet only 16 percent of their teachers were of color.
A major contributing factor to this problem was a high turnover rate of minority teachers. In the 2003–04 academic year, 47,600 teachers of color entered the field, and by 2004–05, 56,000 minority teachers had left. The problem of turnover can be attributed to the poor working conditions of these teachers who are often found in public schools that educate mostly poor students. Ingersoll and May proposed that improving the working conditions for these teachers and in turn increasing the retention rate of minority teachers does not have to be an expensive endeavor. At the end of the day, it is more important to these minority teachers to feel valued as professionals.
Keywords: University of Pennsylvania, minority teacher, minority turnover
—Dorcas Adekunle, Drexel University Earle Mack School of Law Student, Philadelphia, PA
August 16, 2011
Project for Attorney Retention: Fewer Promotions Among Female Lawyers
According to the latest report from the Project for Attorney Retention (PAR), female lawyers still lag behind their male counterparts in becoming partners. Although this is not a recent trend, the PAR report highlights the growing disparity between the two groups. According to the report, new male partners outnumbered new female partners more than two to one in 2011. The promotion rate of women at the 123 large law firms surveyed decreased two percentage points this year, from 34 percent to 32 percent. Such findings are in accord with recent data from other organizations tracking women in the legal profession. The National Association of Women Lawyers, for example, reported that while women made up 60 percent of staff attorney positions, a non-partnership track tier, they made up only 15 percent of equity partners at large firms.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
August 15, 2011
ABA Advocates Solutions to Overburdened Immigration Court System
In a recent Senate Judiciary Committee hearing, Senator Patrick Leahy expressed that the pace of justice in the immigration courts is too slow. Senator Leahy, chairman of the Senate Committee on the Judiciary, stated that he called the hearing to have a constructive discussion about how the immigration courts can be improved. Karen Grisez, chair of the American Bar Association Commission on Immigration, stated at the hearing that the “immigration system is in crisis, overburdened, and under-resourced.” Both Senator Leahy and Grisez believe that the courts do not operate fairly and efficiently. Grisez stated that underfunding the courts endangers the due process of immigrants who appear before them. In the past several years, the number of non-citizens removed from the United States has increased more than 450 percent from 69,680 in fiscal year 1996 to 393,289 in fiscal year 2009.
The Executive Office for Immigration Review has implemented a number of measures to improve the courts. These measures consist of expanding non-citizen access to legal counsel, increasing the use of prosecutorial discretion to reduce unnecessary litigation, allowing asylum officers to handle immediate claims raised as a defense to expedited removal, and removing the requirement that asylum seekers file their claim within one year of their arrival in the United States. Grisez pointed out that there are still further steps that can be taken to improve the system, as highlighted in the ABA’s 2010 report entitled “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.”
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
August 12, 2011
Proposition 8 Supporters Fail in Attempt to Have Ruling Vacated Due to Alleged Judicial Bias
On June 13, 2011, another hearing was held regarding the embattled Proposition 8 ban on same-sex marriage in California. Proposition 8 supporters are trying to have the ruling of former Chief Federal District Judge Vaughn Walker that struck down the ban vacated. They base their appeal on the grounds that Judge Walker, who after his retirement confirmed that he is in a long-term same-sex relationship, should have either removed himself from the case or disclosed his position on same-sex marriage in relation to his own relationship. Proposition 8 supporters allege that because he is in a same-sex relationship, Judge Walker would personally benefit from his own ruling.
Judge James Ware, who presided over the hearing, grilled the supporters' counsel by asking him why he assumed Judge Walker had any intention of getting married just because he was in a 10-year relationship. Judge Ware pointed out that if Judge Walker did not wish to marry, he would not be in the same position as the same-sex couples who brought the lawsuit. On June 14, 2011, Judge Ware issued his decision upholding Judge Walker’s ruling. Judge Ware determined that there was no evidence that suggested that Judge Walker was going to marry his long-term partner. Judge Ware concluded that the judge’s relationship did not require him to remove himself from the case nor was he obligated to disclose his relationship.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
August 9, 2011
Supreme Court: State Can Offer Undocumented Aliens Reduced Tuition
On June 6, 2011, the United States Supreme Court refused to review a California Supreme Court ruling that upheld a state law giving undocumented aliens living in California reduced in-state tuition rates at public universities. To be eligible for the tuition breaks, illegal immigrants are required to attend a California high school for a minimum of three years and to successfully graduate. In the case in question, Martinez v. Regents of the University of California (No. 10-1029), a group of out-of-state students had challenged the law on the grounds that it provided preferential treatment that violates federal law. Currently, several other states, including Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wisconsin have similar laws that make undocumented aliens conditionally eligible for in-state tuition while a dozen other states have passed laws specifically banning the practice.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
August 9, 2011
Alabama Passes Nation's Toughest Illegal Immigration Law
On June 9, 2011, Alabama passed what is being called “the most restrictive law in the nation” against illegal immigration. The new law is modeled after Arizona’s controversial immigration law, which when passed in April of 2010, was regarded as the nation’s toughest bill on illegal immigration. Among its many provisions, the Alabama law requires that schools find out if students are in the country lawfully but does not prohibit them from attending school. However, several opponents of the law believe that this provision may stop immigrant parents from sending their children to school for fear of deportation or arrest. In addition, the law allows police to arrest anyone suspected of being an illegal immigrant if the person is stopped for some reason, requires all businesses to check the legal status of workers using a federal system called “E-Verify,” makes it a crime for a landlord to knowingly rent to an illegal immigrant or to transport a known illegal immigrant. According to the Pew Hispanic Center, there are an estimated 120,000 illegal immigrants in the state of Alabama, which is nearly a five-fold from a decade ago. Many of these immigrants are said to be working on farms, in chicken processing plants, and in construction. Advocacy groups have promised to challenge the new law, which takes effect on September 1, 2011. Those who support the new law, such as Republican Governor Robert Bentley, are confident the law will withstand any legal challenges.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
August 3, 2011
New York's Marriage Equality Law Faces Its First Legal Challenges
On July 25, 2011, opponents of New York State's newly passed Marriage Equality Law filed a lawsuit alleging that the law had been rammed through the state Senate. In its effort to force the invalidation of the law, a non-profit group called New Yorkers for Constitutional Freedoms, argued that the new law violates New York's Open Meetings Law and the Senate's rules. Also in question are the procedures volunteer judges used to waive the 24-hour waiting period after the marriage licenses were issued in order to allow couples to marry immediately once they received their licenses. Domestic Relations Law §13-b allows an immediate wedding when an emergency arises, such as imminent death or that the public's interest would be furthered by a waiver of the waiting period. However, since over 400 such waivers were granted on July 24, 2011, opponents of the law allege that they were not all properly issued.
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
August 3, 2011
American Wealth: Whites Leaving Minorities in the Dust
A recent study shows that the wealth gap between White Americans and Hispanic and African Americans has drastically widened during the current recession. The study, performed by the Pew Research Center, found that from 2005 until 2009, inflation-adjusted median wealth fell 66 percent among Hispanic households and 53 percent among African American households. These numbers are significantly larger than the 16 percent decline among white households. The recession has left the median African American household with $5,677 in wealth and Hispanic households with $6,325, in contrast to white households which had a median of $113,149. The study showed that the housing crisis is largely to blame for these large discrepancies in wealth. Other studies have concluded that African Americans and Hispanics have a great number in equity because they were more likely to be sold a high-cost, sub-prime loan, regardless of their credit history. Those mortgages have the highest foreclosure rates.
—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY
July 25, 2011
Federal Courts Continue to See a Rise in Pro Se Filings
As previously reported in the World Justice Project study of the United States' justice system, despite law schools continuing to graduate record numbers of new attorneys, individuals still continue to have difficulty accessing and affording attorneys for civil matters. The latest confirmation of this ongoing problem is a report issued by the Administrative Office of United States Courts, highlighting the ongoing trend of more pro se cases being filed in federal courts. The Administrative Office’s report found that 72,900 pro se cases were filed in fiscal year 2010 —an increase from 71,543 pro se cases filed in 2009. Although the majority of pro se cases are filed by prison inmates challenging some aspect of their imprisonment, the number of pro se cases filed by non-prisoners continues to increase as well, climbing from 20,545 in fiscal year 2007 to 24,319 in fiscal year 2010.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
July 25, 2011
Fortieth Anniversary of "War on Drugs" Marked by Appeals to Revise Drug Policies
June 17, 2011, marked the 40th anniversary of the United States' war on drugs. The occasion was marked around the country by protests, meetings, and calls for evaluation and reform of the policies and practices of the 40-year effort to eliminate the use and trafficking of illegal drugs. Included in those efforts was a report by Law Enforcement Officers Against Prohibition (LEAP), an organization that includes current and former police chiefs of some of America's largest cities highlighting the negative consequences of the drug war and encouraging a revised view of drug abuse as a public health issue rather than a criminal problem and pursuing the radical course of legalizing drugs. The LEAP report was particularly critical of recent government action, which has seen funding for demand reduction (in the form of education and rehabilitation programs) decline while funding for traditional crime-fighting approaches has increased. The LEAP report also highlighted the devastating impact that America's war on drugs has had on Mexico as it continues to struggle to contain massive drug-trade related violence.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
July 25, 2011
AP Reports Record Number of Deportations
This week the Associated Press reports that according to Immigration and Customs Enforcement data, the United States deported nearly 393,000 people in fiscal year 2010, setting a new record for deportations. According to the article, the Obama administration has placed increased emphasis on targeting dangerous convicted criminals for deportation, and the administration claims that this increased emphasis is responsible for the increase in deportations. Immigration activists quoted in the article worry, however, that the increased deportations are not focused solely on violent offenders and other serious criminals and cite increases in deportations for drug-related offenses and traffic offenses as evidence that the deportations are part of a larger program aimed at removing a large group of non-citizens. Law enforcement sources quoted in the article, including the executive director of an organization of sheriffs and police chiefs, reported that the increased deportations are having their desired effect and are making communities safer by removing dangerous individuals.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
June 22, 2011
Supreme Court Issues Decision in Wal-Mart v. Dukes
On June 20, 2011, the United States Supreme Court handed down a widely anticipated decision in the Wal-Mart Stores Inc. v. Dukes case. The Supreme Court’s opinion reversed the decision of the district court to certify a class of over a million current and former female employees of Wal-Mart stores who alleged that Wal-Mart had discriminated against them in violation of Title VII. The plaintiffs alleged that Wal-Mart, the nation’s largest private employer, discriminated against all women employed by the company since December 26, 1998, by denying them equal pay or promotions. The district court certified the class under Federal Rules of Civil Procedure 23(a) and (b)(2) and Wal-Mart appealed. The Ninth Circuit affirmed the certification.
Importantly, the plaintiffs did not allege that Wal-Mart had an express corporate policy that discriminated against women. To the contrary, the plaintiffs claimed that Wal-Mart’s discriminatory behavior arose out of the discretion that local managers in each of Wal-Mart’s thousands of stores exercised concerning the matter of pay and promotions. As proof that all women employed by Wal-Mart suffered from discrimination, the plaintiffs relied on statistical evidence of pay and promotion disparities between men and women, anecdotal reports from Wal-Mart’s female employees, and expert testimony about Wal-Mart’s culture and human resources practices.
The Supreme Court reversed the district court’s certification on two grounds. One ground, the nature of the relief sought, was non-controversial, and all nine of the Court’s justices joined in that aspect of that decision. On the other issue, the question of commonality, however, the Court was divided. Five justices (Scalia, Roberts, Thomas, Alito, and Kennedy), in an opinion authored by Justice Scalia, held that there was insufficient “commonality” among the members of the class to sustain class certification. On this point, the majority found it especially telling that Wal-Mart’s official corporate policy prohibited sex discrimination, thereby making it very difficult for the plaintiffs to provide “significant proof” of discrimination” on a class-wide basis. The majority did not suggest that plaintiffs failed to prove the existence of actionable discrimination against specific female employees. Rather, the majority held that the discrimination allegedly suffered by a particular female Wal-Mart employee was insufficiently common with discrimination allegedly suffered by the other 1.5 million members of the putative class.
Four justices, in an opinion authored by Justice Ginsburg, dissented from the majority’s conclusion that the commonality element of plaintiffs claims was lacking. As an initial matter, the dissent opined that the issue of commonality was not properly before the Court. Moreover, the dissenting justices wrote that even if the issue were properly before the Court, the plaintiffs had alleged sufficient facts to establish commonality. Specifically, the dissent felt that the plaintiffs allegations of the discretion afforded to Wal-Mart’s individual store managers, when combined with the plaintiffs’ statistical evidence of actual pay and promotion differences, was sufficient to offer significant proof of common causes of unlawful discrimination and injuries arising from that discrimination. Justice Ginsburg also felt that the Court’s focus on dissimilarities between members of the class improperly conflated the commonality test with other aspects of the class action rule and imposed an inappropriately high bar for future class actions.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
June 13, 2011
United States Ranks Poorly in World Justice Project Rule of Law Index
A recently published study by the World Justice Project ranks the United States 21 out of 66 countries in terms of assuring access to legal counsel and even lower on the affordability of obtaining an attorney. The Rule of Law Index 2011 assessed countries’ performance across eight areas: limiting government powers; curbing corruption; protecting fundamental rights; ensuring order and security; government transparency; access to civil justice; and the effectiveness of criminal justice. Although the United States received good scores in many areas, the judicial system scored poorly in certain key respects because of substantial barriers to access for “disadvantaged groups” and because of a general perception that minorities are not on equal footing within the judicial and legal system when compared to other groups. In addition, the report also highlighted the difficulties the average American faces in affording an attorney in civil disputes and compared that unfavorably with other wealthy and developing nations. On the other hand, the United States scored high in the areas of civil liberties and certain limitations on government powers, such as its well-established system of checks and balances. Additional information about the study, and access to the study itself, may be found here.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
May 31, 2011
Diversity Programming Still a Priority for Nation's Law Firms
The Minority Corporate Counsel Association (MCCA) and the Association of Law firm Diversity Professionals (ALFDP) recently released the results of a new survey showing that law firms across America continue working to improve diversity. Although the survey found that some firms’ efforts were slowed by the economic downtown, many firms reported that their commitment to diversity was only mildly affected by the economic climate. The survey sought input from 113 large and small law firms around the United States and found, among other things, that 82 percent of the surveyed firms employ a law firm diversity professional. The survey also reported that almost all of the respondent firms have diversity committees and demonstrates that the legal profession continues to recognize the benefits of a diverse workplace and is actively seeking to increase diversity. The complete survey is available here.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
April 28, 2011
Highlights from the Section of Litigation Annual Conference
Minority Trial Committee members and committee events were highly visible during the recent Section of Litigation Annual Conference at the beautiful Fontainebleau Resort in sunny Miami, Florida.
The committee sponsored two very well-received and informative programs at the conference: “Updates in Foreign Corrupt Practices Act”; and “International Discovery in U.S. Courts: An Analysis of the Use of 28 U.S.C. § 1782.” These two programs explored important new developments in international litigation.
The committee also hosted some great networking activities, including a Dutch Treat dinner at Tap Tap Haitian Restaurant and the committee’s Networking Lunch. At the Dutch Treat dinner, committee members networked, exchanged practice tips, and had a great time at Tap Tap. During the conference itself, committee members from across the country joined together to have lunch and network. Participants shared ideas about business development and appreciated the presence of noted committee members Countess Price, assistant general counsel at Monsanto Company and Denise Zamore, associate general counsel at United Healthcare.
Finally, several committee members participated in some of the many educational seminars offered throughout the weekend. Committee cochair Julie Sneed moderated a panel on marketing strategies for women and minority litigators. The panel provided a blueprint for marketing efforts for associates and junior partners to use in building their practices. Committee cochair Anna Torres spoke on a panel discussing the top ten blunders to avoid in deposition. Anna and the panelists shared tips, lessons learned, and best practices for taking and defending depositions, including how to use depositions to fit the theory of your case and the purpose and goal of taking a particular deposition.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL
April 28, 2011
The Leadership Council on Legal Diversity Fellowship Program
The Leadership Council on Legal Diversity—a group comprising leaders from 100 law firms and 65 corporations—is set to launch a new mentorship program to identify promising young attorneys and put them in a position to learn from law firm managing partners and general counsel from major companies.
The hope is that the group’s Fellows Program will help diversify the legal profession by improving leadership and networking skills among young attorneys who are committed to promoting diversity within their firms and companies.
Among those planning on teaching for portions of the program are Coca-Cola Co. general counsel Geoffrey Kelley and Macy's Inc. general counsel Dennis Broderick. The program will include three in-person conferences over the course of the year, with fellows also participating in virtual training sessions that cover such topics as the expectations that managing partners have for attorneys and how to pitch services to general counsel. Managing partners and general counsel will also talk to the fellows about personal experiences and setbacks, while fellows will be paired with a “coach” from the council to work on a project for the year.
A new group of 100 fellows will be selected each year.
—Denise Zamore, United Healthcare Group
April 28, 2011
Supreme Court Releases Important Decision in Arbitration Case
The Supreme Court, in a 5–3 ruling, reversed and remanded the Second Circuit Court of Appeal's ruling that an arbitral tribunal had not exceeded its powers in finding that an arbitration clause allowed for class arbitration. At issue was whether an arbitration provision in a standardized and specialized shipping contract allowed for class arbitration for a group of shipping customers, despite that the arbitration clause was silent as to class arbitration. The Court found that the arbitrators should have looked to controlling federal law rather than their own policy concerns, and that the law in this case did not allow for class arbitration, especially where the arbitration agreement was silent on the issue. Accordingly, the Court agreed with the Southern District of New York's ruling, which vacated the arbitral decision under Section 10(a)(4) of the Federal Arbitration Act. Stolt-Nielsen S.A., et al. v. Animalfeeds Int’l Corp., No. 08-1198.
—Charlie Whorton, Esq., Rivero Mestre LLP, Miami, FL
March 4, 2011
White House Issues Report on Status of Women in America
March is Women's History Month, and as part of the events honoring Women's History Month, on March 1 the White House released a detailed evaluation of the status of women in America, titled "Women in America: Indicators of Social and Economic Well-Being." This is the first in-depth, comprehensive report on women prepared by the federal government in over 50 years. The report focuses on five areas: people; families and income; education; employment; health; and crime and violence. Several federal agencies collaborated to compile the report, which was prepared to provide facts to a broad range of interested parties. Among the developments highlighted by the report are the fact that: (1) women now outpace men in college attendance; (2) despite gains in employment, women continue to earn about 75 percent of what their male counterparts earn; (3) women, especially women of color, are more likely to be in poverty than men; (4) while women live longer than men, they are more likely to face certain health problems; and (5) women are less likely than in the past to be the victims of certain violent crimes.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, Illinois
February 14, 2011
"Crashworthiness Doctrine" Has Been Extended
A recent ruling by the Seventh Circuit Court of Appeals has extended the ‘crashworthiness doctrine’ to riding lawnmowers. Donald Malen v. MTD Products, Inc. and Home Depot U.S.A., Inc. 08-3855 (Nov 19th 2010), 7th Cir. In reversing and remanding the ruling of the district court, which granted summary judgment for the defendants, Judge Williams rejected the assertion that the operators own actions were the sole proximate cause of his injury. Rather, the court found that a jury could find that the mower was both defective and the proximate cause of Malen’s injury.
In 2004, Donald Malen slipped while getting off his reconditioned riding lawn mower and severely injured his foot on the rotating blade, having raised the cutting deck and removed his foot from the pedal that engaged the blade. He and his wife sued the manufacturer and seller, claiming that the mower was defective in design and construction. The district court granted summary judgment for the defendants, because undisputed evidence established that Malen’s own actions were the sole proximate cause of his injury.
The mower was designed with a safety interlock system. One component of that system was an operator presence control (OPC), a device that kills the engine if the operator rises from the seat without first disengaging the cutting blade and setting the parking brake. A second component was the “no cut in reverse” switch (NCR), which kills the engine if the operator shifts into reverse without first disengaging the blade. It is undisputed that neither the OPC nor the NCR functioned when the accident occurred.
The Malens contended that the lawnmower manufactured by MTD Products and sold by Home Depot was negligently manufactured and unreasonably dangerous because its OPC was not connected and thus inoperable. They also contended that the mower was negligently designed because MTD Products had shunned a “fail safe” system that would have made the cutting blade unusable even without the OPC connected. According to the district court, since Malen was at fault, it was unnecessary to decide whether the mower was defective.
The court, made clear that manufacturers and sellers are strictly liable for injuries caused by unreasonably dangerous products unless an unforeseen alteration by a third party introduced the unsafe condition. The court found that the plaintiffs had adduced more than sufficient evidence to show Malen’s mower was unreasonably dangerous and that the mower was further defective in design because its OPC was not “fail safe.” On both questions, there was, according to Judge Williams, sufficient evidence for a jury to find for the plaintiffs.
Even if the defendants are correct that Malen was himself negligent and that it mattered, accidents are natural, foreseeable consequences of using certain products. This principle is known as the "crashworthiness doctrine" (or the “enhanced injury” or “second collision” doctrine), which Illinois has adopted. Applicable to strict liability and negligence, the premise underlying the crashworthiness doctrine is that some products, although not made for certain purposes—such as accidents—should nevertheless be reasonably designed to minimize the injury-producing effect of an accident. This includes a failure to provide the consumer with reasonable protection under the circumstances surrounding a particular accident. A reasonably foreseeable intervening act, such as an accident, does not relieve the defendant of liability as defendant was required to foresee certain accidents in the use of the mower.
Judge Williams noted that the Restatement (Third) of Torts recognizes that the crashworthiness doctrine applies outside the automobile context, and other jurisdictions have variously applied it to motorcycles, airplanes, boat engines, fork lifts, tractors, and indeed mowers. In extending the doctrine to mowers in this jurisdiction, she explained accidents on riding mowers are foreseeable just as accidents on roadways are, and while Malen may not have been a model user, such consideration was not a concern of the crashworthiness doctrine. Therefore Malen’s disregard of an explicit warning was not dispositive to that doctrine, as adopted in Illinois. In reversing and remanding, the court made clear a jury could still conclude that the mower was unreasonably dangerous and that the absence of functional safety mechanisms was the proximate cause of Malen’s injury.
—Karen Munoz, Dolan Law Offices, P.C., Chicago, IL
February 10, 2011
Supreme Court Hears Argument on Arizona Immigration Law Employer Sanctions Case
On December 8, 2010, the Supreme Court heard oral argument in the matter of Chamber of Commerce v. Whiting (09-115), a case centered on the hot-button topic of Arizona's immigration laws. In the case, businesses and civil liberties groups (backed by the Obama administration) are challenging an Arizona law signed in 2007 that threatens to revoke the licenses of businesses that knowingly hire undocumented workers. The law has only been used three times in the past three years and was previously upheld by the Ninth Circuit Court of Appeals in San Francisco. While immigration law is generally a focus of the federal government, Arizona has argued that the state has been forced to act due to the federal government's failure to meaningful enforce immigration law. A decision is expected by summer 2011.
—Joseph Hanna, Goldberg and Segalla, Buffalo, New York
February 10, 2011
New Census Data Reveals Substantial Progress in Desegregation
Racial segregation levels in the United States have dropped to some of the lowest levels in more than a century, according to census numbers released on December 14, 2010. The Census Bureau's American Community Survey (ACS) is based on a survey of over 10 million Americans and is the largest demographic survey conducted in the country. Neighborhood segregation levels dropped in 70 percent of the 100 largest U.S. metro areas. Several Southern and Western cities showed a noticeable trend toward integration in the past five years, while parts of the Northeast and Midwest remain the most segregated. These changing numbers will play heavily into the upcoming congressional redistricting battles.
—Joseph Hanna, Goldberg and Segalla, Buffalo, New York
February 10, 2011
Fourth Amendment Protects Privacy in Email Stored with Internet Service Provider
In United States v. Warshak, al. Case Nos. 08-3997/4085/4087/4212/4429; 09-3176 (Dec. 14, 2010), a case with broad implications for an increasingly digital world, the Sixth Circuit Court of Appeals held that the Fourth Amendment applies to emails stored by individuals on the servers of Internet service providers and that government agents may not search email contents without a valid warrant. This case creates an important precedent in an area of law that had previously been somewhat unsettled and holds that the provisions of the Stored Communications Act authorizing government agents to subpoena emails from Internet service providers are unconstitutional. The Sixth Circuit determined that email maintained on the servers of Internet services providers is akin to regular mail held by the post office or phone calls routed through the phone company and is not similar to records maintained by a bank (which may be searched without a warrant). Importantly, pursuant to the Supreme Court’s recent decision in Pearson v. Callahan, 129 S. Ct. 808 (2009), the Warshak court declined to apply the exclusionary rule to the emails, finding that the government agents had relied on the Stored Communications Act in good faith, thus avoiding the exclusionary remedy.
—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, Illinois.
February 10, 2011
Even with Repeal Bill Signed, Legal Battles over "Don't Ask, Don't Tell" Continue
While President Obama signed the "Don't Ask, Don't Tell" Repeal Bill into law on December 22, 2010, the legal challenges surrounding the policy are not yet over. The Justice Department is now seeking a stay of the long-standing federal lawsuit filed over the policy by Log Cabin Republicans (LCRs). The Justice Department argues that the repeal bill establishes a process for ending the DADT policy. However, under the bill, the repeal will not go into effect until 60 days after the certification process is complete. LCRs argue that until the repeal takes effect, service members are still in danger of falling victim to the policy and will continue their appeal to have the stay current blocking a worldwide injunction against enforcement of the DADT policy lifted.
—Joseph Hanna, Goldberg and Segalla, Buffalo, New York
November 3, 2010
Native American Farmers Celebrate $760 Million Settlement
Native American farmers and ranchers and the U.S. Department of Agriculture (USDA) announced an historic agreement to settle a nationwide class action lawsuit (Keepseagle v. Vilsack) that alleged discrimination in USDA’s farm loan program dating back to 1981.
The agreement brings to an end 11 years of litigation, and marks the beginning of what is expected to be a new partnership between USDA and the Native American community.
Under the agreement, which was unveiled in the U.S. District Court in Washington, D.C. before Judge Emmet Sullivan, USDA will pay $680 million in damages to thousands of Native American farmers and ranchers and forgive up to $80 million worth of outstanding farm loan debt.
The settlement also provides for a host of initiatives that will improve USDA’s farm loan services for Native Americans.
November 1, 2010
Judge Orders Firm to Add Diversity to Case
A federal judge is taking steps to promote diversity in his Manhattan courtroom. Judge Harold Baer of the United States District Court for the Southern District of New York recently issued an order in a class action suit (In re: Gildan Activewear Inc. Securities Litigation; 08-cv-5048) directing the two co-lead firms serving as plaintiffs' counsel to assign at least one woman and one minority to the case in order to reflect the diversity of class members they are representing.
Call for Diversity in the Profession
Nearly 100 Chief Legal Officers / General Counsel have signed on to Sara Lee General Counsel Roderick Palmore’s “Call to Action: Diversity in the Legal Profession,” which states:
As Chief Legal Officers, we hereby reaffirm our commitment to diversity in the legal profession. Our action is based on the need to enhance opportunity in the legal profession and our recognition that the legal and business interests of our clients require legal representation that reflects the diversity of our employees, customers and the communities where we do business. In furtherance of this renewed commitment, this is intended to be a Call to Action for the profession generally, in particular for our law departments, and for the law firms with which our companies do business.
In an effort to realize a truly diverse profession and to promote diversity in law firms, we commit to taking action consistent with the referenced Call to Action. To that end, we pledge that we will make decisions regarding which law firms represent our companies based in significant part on the diversity performance of the firms. We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area. We further intend to end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse.
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The battle over the validity of affirmative action has reached the Supreme Court again for the second time in 10 years. As the Supreme Court considers the issue of race in collegiate admissions in Fisher v. University of Texas, multiple members of academia and several law school entities —including the Association of American Law Schools, the Law School Admission Council, the American Bar Association, New York University School of Law’s Brennan Center for Justice, Howard University School of law’s Civil Rights Clinic, National Black Law Students Association, the Emory Latin American Law Students Association, OUTLaw, Harvard Law School Dean Martha Minow, Yale Law School Dean Robert Post, and six other constitutional law professors—have filed amicus briefs supporting the consideration of race in admissions decisions. In essence, the briefs argue that removing race as a consideration in admissions decisions would effectively handicap efforts to increase diversity in law schools and the legal profession at large.
The brief of Minow and Post (prepared by Sidley Austin’s Carter Phillips) stated “[w]ere this Court altogether to preclude considerations of race from the admissions process, each school would be disadvantaged in its efforts to select individuals who will produce the most effective classroom experience for training students to succeed in the opportunities and challenges that lawyers, whether practicing or not, must inevitably confront.”
The Law School Admission Council wrote “[t]he simple demonstrable statistical fact is that most selective law schools in this country will have almost no students of certain races unless they adopt admissions policies designed to alter that outcome.” They based this conclusion on the effect of various schools’ admissions standards (i.e. LSAT and GPA scores) on various minority groups.
In their submission, the Association of American Law Schools argued that this disparity resulted from smaller class sizes in law schools. In other words, they believe that while large undergraduate institutions may have enough applicants to achieve a “semblance of racial diversity,” the smaller scale of law schools prevent them from realizing a racially diverse student body where class-rank based admissions are the sole admission criteria.
Still, most of the amici strongly insist that race is only one consideration in a comprehensive review of each applicant, asserting that diversity is in no way determinative for individual acceptance/employment decisions.
