Saturday, July 29, 2006

On Salem and the Voting Rights Act

Rick Hasen links here to a press release that says this:

"On July 26, 2006, the same day that President Bush extended the special provisions of the Voting Rights Act for another 25 years, a three-judge federal court in Washington, DC, approved the City of Salem’s request for a bailout from coverage under the Voting Rights Act. Salem becomes the eleventh local government to obtain a bailout since 1996.
The bailout means that Salem will no longer be required to submit any of its voting changes to the Justice Department for preclearance review, and will give local election officials greater flexibility in making voting and election changes that will assist voters.
J. Gerald Hebert, an attorney in Alexandria, Virginia, who handled the City of Salem’s case, noted that the City had demonstrated a solid record of compliance with all provisions of the Voting Rights Act, thus making it eligible to receive the bailout. He applauded officials in the City, particularly the City’s General Registrar of Voters, Ms. Dana Oliver, for operating a voter registration and election administration office that made it easy to establish the City’s bailout eligibility.
Hebert has represented all eleven Virginia jurisdictions that have obtained bailouts. Hebert added that he thought more local governments would likely pursue bailouts in the future, especially now that the Act has been extended and the bailout provisions remained unchanged. Hebert said: state and local governments that believe they are eligible to bailout should do so because it is easy to do if there is equal opportunity to participate in all aspects of the voting and electoral process. It’s also affordable and cost-effective.”

What happens to a lawsuit when a constitutional office changes hands?

In King v. McMillan, Judge Wilson ruled that a civil rights lawsuit brought against Sheriff McMillan in Roanoke continued against his successor to the extent he was sued in his official capacity.

In a footnote, the opinion notes: "The court recognizes that there is conflicting precedent within the Fourth Circuit concerning whether McMillan in his individual capacity can be held liable under Title VII. In Paroline v. Unisys, 879 F.2d 100, 104 (4th Cir. 1989), vacated in part and rev’d in part on other grounds per curiam, 900 F.2d 27 (4th Cir. 1990) (en banc), the Fourth Circuit held that employees in supervisory positions with “significant control” over “hiring, firing, or conditions of employment” can be held personally liable under Title VII. Id. at 104. However, later in Lissau v. Southern Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998), the court held that Title VII creates no cause of action against supervisors in their individual capacities. Lissau,159 F.3d at 180-81 (stating that the Civil Rights Act of 1991 does not “mention individual liability as an available remedy” and that Title VII’s “remedial scheme seems so plainly tied to employer, rather than individual, liability”). Although the Fourth Circuit has not expressly overruled Paroline, other courts have held that the Fourth Circuit has impliedly overruled Paroline. See Jones v. Tyson Foods, Inc., 378 F.Supp. 2d 705, 708 (E.D. Va. 2004) (stating that the Fourth Circuit Court of Appeals “overruled Paroline . . . with its decision in Lissau” and noting that “every district court in Virginia to rule on the issue [whether supervisors are individually liable for violations of Title VII] has also followed Lissau”). This court believes it is compelled to do so, as well."

I'd say that's right.

In another interesting footnote, the opinion says this:

"Although Johnson presents this issue as a question of whether she is McMillan’s 'successor' under Rule 25(d), the issue is more accurately framed in terms of whether King has properly named the Office of Sheriff of the City of Roanoke as her “employer” under Title VII. Only employers are liable for Title VII violations. Lissau v. Southern Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998). A sheriff in his or her official capacity, assuming that he or she has more than fifteen employees, is subject to suit as an “employer” within the meaning of Title VII. See Briggs v. Waters, 2006 WL 1982758, *2 (E.D. Va. 2006) (stating that Title VII plaintiff’s “employer” was the “Sheriff’s Office” not the former sheriff in his individual capacity, who was the plaintiff’s supervisor at the time of alleged Title VII violation); Partington v. American International Specialty Lines Ins. Co., 443 F.3d 334, 339 (4th Cir. 2006) (stating that “[u]nder Title VII, the term ‘employer’ is defined to include persons that have at least fifteen employees”). Here, the Office of Sheriff of the City of Roanoke is the statutory “employer” under Title VII and, thus, is liable for King’s Title VII claims. Accordingly, McMillan in his official capacity was a proper defendant at the time King filed this action, and when Johnson succeeded McMillan as the Sheriff of the City of Roanoke, she became liable in her official capacity. See Briggs v. Waters, 2006 WL 1982758, *2 (E.D. Va. 2006) (dismissing a Title VII claim against the former Sheriff of Portsmouth in his official capacity, holding that “[b]ecause [the former Sheriff] no longer holds the office of Sheriff, he does not have an official capacity in which he can be sued” and dismissing a Title VII action against the former Sheriff in his individual capacity because “Title VII creates no cause of action for a claim against a supervisor in his individual capacity”)."

Judge Wilson is probably right on the main point of the opinion, but it is an interesting question, with some arguments to the contrary. Constitutional officers are sort of anomalous entities in Virginia law, but Judge Wilson concluded that the state law vagaries were irrelevant.

What's the ABA up to in Hawaii?

Supposedly, you can keep up with this year's annual meeting by way of this site.

The other way might be to ask the VBA's Ted Ellett after he gets back.

Friday, July 28, 2006

Insanity defense to be asserted in Bristol murder case

The Roanoke Times reports here that defense lawyers from the Capital Defender Office for Western Virginia plan a defense of insanity in the case of the Bristol, Virginia woman who drowned her child in the bathtub.

The Bristol paper is in litigation with the City regarding the woman's 911 call regarding the crime.

This article comes shortly on the heels of news of the verdict in Texas on the retrial of Andrea Yates, on which a Houston columnist has some observations here.

Thursday, July 27, 2006

On a Richmond law blogger

This article from Style Weekly says "Personal-injury attorney [Joel] Bieber, well-known for his ubiquitous television ads, has become perhaps the first attorney in Richmond to write a legal blog."

That's balderdash. Ken Lammers and Jaded JD were at it long before. Of course, now Jaded JD has since fled the jurisdiction for a blue state.

The article goes on: "Writing blog entries, Bieber says, 'shows youÂ?re an attorney of substance.'"

I must be more substantive than I thought, having written 5,000+ blog entries. It's a wonder I can get from here to the refrigerator.

Tuesday, July 25, 2006

Fourth Circuit overturns guilty pleas as involuntary due to judge's excessive role

In U.S. v. Bradley, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Gregory and Duncan, reversed the convictions entered on the guilty pleas of three defendants, concluding that the trial judge stepped over the line in encouraging the defendants to plead and therefore the pleas were involuntary.

Is it ethical to tell anyone you are a Virginia Super Lawyer?

In New Jersey, the legal ethics police have declared it unethical to publish one's listing as a "Super Lawyer."

This article, via, notes that there was a similar snafu in Virginia about lawyers identifying themselves as listed among the "Best Lawyers in America," which resulted in a federal court ruling against the Virginia State Bar and then the settlement vaguely described here.

Here marketeer Larry Bodine weighs in that the New Jersey opinion is "stupid."

Are federal judges acquittal-prone?

Via the Volokh Conspiracy and this Rocky Mountain News article, I was intrigued by this study which concludes that federal judges are more likely than federal juries to acquit criminal defendants.

I recollect sitting in on part of a federal criminal trial before Chief Judge Jones, which ended in an acquittal, and some generic discussion afterwards with one of the lawyers about how did they make the call for a bench trial - without the benefit of this particular article.

Interesting interview with Judge Kozinski

Via Crime and Federalism, Reason has this great interview with Judge Alex Kozinski of the Ninth Circuit.