State and Local Legal Blog

Iowa may be in trouble…

February 24, 2012
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The largest class-action lawsuit of its kind against a state’s civil service system has been filed in Iowa.  African Americans passed over for state jobs and promotions in Iowa since 2003 say that there is not overt racism in Iowa, a state which is 91% white. Rather, they contend that managers subconsciously favor white candidates across the board in state government in Iowa, leaving African Americans at a disadvantage in hiring, promotion and retention.

Cases alleging subconscious bias are very difficult to prove.  Defenses, including a number of other factors which could explain hiring and promotion decisions, are available for the employer.  Anthony Greenwald, a psychology professor at the University of Washington and an expert witness who testified on behalf of the plaintiffs, says that if this case goes to trial, it will be of national import as the first case going to trial on “implicit bias”.  Dr. Greenwald is an expert on implicit bias, and has served as an expert on this issue in other cases which have settled prior to trial.

Greenwald is, in part, the daddy of implicit bias, having taken part in the development of the Implicit Association Test to test racial stereotypes.  Research that these scientists have done has repeatedly showed an inherent preference for whites over blacks in up to 80% of the test takers, including many who do not consider themselves racist.

Greenwald’s implicit bias theory hit a snag last year in the WalMart pay and promotion practices case filed by thousands of women who were or had been employed by WalMart.  The Supreme Court found the class “to board” and did not point to a “specific hiring practice” as a discriminatory one.  However, the court did not reject implicit bias, and Justice Ginsburg wrote, albeit in a dissent, tat such claims can be allowed.

The class’  attorney, Thomas Newkirk, said the science that indicate implicit bias  “is becoming overwhelming.” Nevertheless, it will still be subject to usual Daubert objections.  A Daubert challenge is a hearing conducted before the judge where the validity and admissibility of expert testimony is challenged by opposing counsel. The expert is required to demonstrate that his/her methodology and reasoning are scientifically valid and can be applied to the facts of the case. The term comes from the 1993 U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which the Court articulated a new set of criteria for the admissibility of scientific expert testimony. In its 1999 Kumho Tire v. Carmichael opinion, the Court extended Daubert’s general holding to include non-scientific expert testimony as well.

“Clearly, the problem is not in Iowa alone, but we believe Iowa is the exactly the right place to ask society to take control of this important issue fairly for all races, and to seek a better future for all as a result,” said attorney Newkirk, who was recently honored by the Des Moines chapter of the National Association for the Advancement of Colored People for his work on the case.


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A reminder about hostile environments…

February 21, 2012
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When I was younger I was a prosecutor and I know the social give and take of Police Departments and Sheriff’s Departments.  Like the legal profession, law enforcement is one of those last bastions of male dominance and not only is it hard for a woman to break into the culture, but when she does, it is usually because she becomes “one of the guys”.  When you become one of the guys, then it’s very difficult for folks to consider that you are not one of the guys for all purposes.  And I bet that is what happened with the plaintiff, Ms. Johnson, in the case of City of Belzoni v. Johnson  o 2010-CA-01879-SCT( 2/17/2012) which was issued last week.

Ms. Johnson filed a sexual harassment claim against the City of Belzoni, her employer, and various members of the Belzoni Police Department.  She claimed that she worked in a hostile work environment.  The existence of a hostile work environment is a necessary element to a Title VII claim for sexual harassment.  The key to making a finding of a work environment which is hostile or abusive is determined by looking at all of the circumstances, including (1) the frequency of the discriminatory conduct; (2) the severity of the discriminatory conduct; (3) whether the conduct is physically threatening, humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.  Most courts have reiterated that the effect of this conduct on an employee’s psychological well-being is relevant in determining whether the plaintiff actually found the environment abusive, and the Mississippi Supreme Court so held.

Ms Johnson testified that the conduct of her harasser was outrageous, indecent and abusive, that he insulted her ability as a police officer because of her gender and made her the target of unwanted sexual innuendos and vulgar comments.  She testified that this conduct had gone on for nearly a year on a daily basis, that she had reported the incidents to someone in authority, who corroborated her reporting, and that she felt that no action had been taken in regard to her complaints of sexual harassment by the employer.

As a result of the unwanted, hostile behavior which the City had not remedied, Johnson testified that she suffered from physical and emotional injuries and felt that she was unable to perform her occupational duties as a law enforcement officer.  The Mississippi Supreme court found that there was sufficient evidence to indicate a hostile working environment as well as the failure of the authorities, including City government, to rectify the situation.

A word to the wise:  what a woman perceives as unwanted, hostile, sexually and gender oriented behavior is usually radically different from what a man perceives in the identical situation.  Consider the peer reviewed journal articles which include survey after survey which suggest that 90% of all women have either experienced sexual harassment or observed it, while only 15% of men have observed sexual harassment.

A reminder about hostile work environments………..take a look at the work environments provided, and particularly at the departments — like those of law enforcement, public works, etc. — which are dominated by men.  What is “allowed” behavior may not be “appropriate” behavior and unless reined in, your public entity may find itself a defendant just like the City of Belzoni.



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A New “Twinkie” Defense?

February 13, 2012
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Prosecutors, be prepared.  The states of Idaho, Florida and Kentucky have considered a new insanity defense much like the Twinkie defense” — you remember — Supervisor Dan White fatally shot San Francisco Mayor George Moscone and Supervisor Harvey Milk.  White argued that he had diminished capacity because he had been eating high-sugar junk food.  (At the time, California had a “diminished capacity defense” which the legislature changed to a “diminished actuality defense”, which is harder to prove.)

Forget Twinkies!

The new defense is the “Red Bull” defense, and it covers a multitude of caffeinated drinks, including coffee.  Where did this come from?  Well, the DSM – IV – TR  lists caffeine intoxication as a DISORDER.

Admittedly, the Red Bull defense, along with the Twinkie defense, will be more difficult in M’Naughten states such as Mississippi.  The M’Naughten Test is the traditional “right and wrong” test of legal insanity in criminal prosecutions. (M’Naughten was a notorious English assassin in the early 1800s who unintentionally lent his name to the test.)  Under M’Naughten, a defendant is legally insane if he/she cannot distinguish between right and wrong in regard to the crime with which he/she is charged.  If the judge or jury finds that the defendant could not distinguish between right and wrong, then criminal intent is missing and intent is an essential element in proving a crime.

The insanity defense has gone through lots of iterations:  from M’Naughten to the Durham Rule, which has been disavowed in a number of jurisdictions since the lat 1970s.  Durham was created in 1954 as a softer recapitulation of the insanity defense.  In Durham v. United States, 214 F.2d 862 (1954), Judge David L. Bazelon of the United States Court of Appeals for the District of Columbia wrote:  “an accused is not criminally responsible if his unlawful act was the product of mental disease.”  It required that the jury determine that the defendant was suffering from a mental disorder and that there was a causal relationship between the disease and the act.  This rule was rejected by the DC Court of Appeals in 1972.  (United States v. Brawner, 471 F.2d 969 (1972).

Prior to Durham, many courts had supplemented M’Naughten by the “irresistible impulse test” which allowed a jury to inquire as to whether the accused suffered from a mental condition that did not allow him or her to resist an insane impulse.

In the last half of the 20th century legal tests of insanity were subject to critical review.  M’Naughten was thought to be outdated by some legal scholars because it did not take into consideration the broad range of mental disorders that had been identified by modern science.  (Now, in the mid 20th century the DSM – II  was probably 1/3 of the length of its successor, DSM – IV, and probably had less than 2/3s of the currently recognized mental disorders.)

The effect of the iterations developed a tension between the psychological expert witness and the jury.  In the province of which should the determination of whether or not the defendant was insane at the time of the incident lie?  While many said this was the province of an expert, others continue to believe that, given all the facts, including facts input by psychological testimony, the jury remains in the best position to make that decision.

The American Law Institute tried to craft a solution.  It said: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”  ALI Model Penal Code, section 4.01[1].

Regardless of the rule of law in any particular state, these mental capacity defenses will be proffered.  So look out, prosecutors.  Here comes Red Bull!

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Baggy Pants

February 8, 2012
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Two years ago I reported that on May 8, 2010 the Horn Lake Board of Aldermen voted to outlaw baggy pants.  Now Tupelo has followed suit.  The Tupelo ordinance will go into effect on March 8, 2012.

Tupelo’s ordinance will not allow a man or woman to wear pants or a skirt that is 3 inches below the top of the hip and exposes skin or underwear.  Enforcement may be a problem.  Will the police carry tape measures? or rulers?  (And if so, will they be able to whack the disobedient on their knuckles as Sister Mary Michael did?)

While admitting that enforcement may be difficult (after all — where is the “top of the hip” — I’m thinking that a beginning place as the sciatic canal — where the sciatic nerve leaves the spine — would be more definite.  Or how about the S5 disc?  Either would be more definite than the “top of the hip”.)  the Chief of Police suggests that the opportunity to stop people in order to consider whether a violation has occurred will enable them to access other issues — like public drunkenness or the like.  Were I a “ne’er do well”, I’d consider purchasing a belt just to be able to cruise by the Chief of Police without “asking for” a confrontation.

Whatever works.  I must say that I am tired of flesh and underwear, particularly in this, “the fattest”, state in the Union.

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What about unauthorized municipal expenditures?

February 2, 2012
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Section 21-39-15 of the Mississippi Code indicates as follows:

If any member of a governing body of a municipality shall knowingly vote for the payment of any claim not authorized by law, he shall be subject to indictment and, upon conviction, be fined by a sum not exceeding double the amount of such unlawful claim or appropriation, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.

Section 21-39-27 indicates as follows:

(1) The governing authority of any municipality may acquire one or more credit cards which may be used by members of the governing authority and municipal employees to pay expenses incurred by them when traveling in or out of the state in the performance of their official duties.  The municipal clerk shall maintain complete records of all credit card numbers and all receipts and other documents relating to the use of such credit cards.

(2)  The members of the governing authority and municipal employees shall furnish receipts for the use of such credit cards each month to the municipal clerk who shall submit a written report monthly to the governing authority.  This report shall include an itemized list of all expenditures and use of the credit cards for the month, and such expenditures as may be allowed for payment by the municipality in the same manner as other items on the claims docket.

(3) The issuance of a credit card to a member of the governing authority or municipal employee under the provision of this section does not authorize the member of the governing authority or municipal employee to use the credit card to make any expenditure that is not otherwise authorized by law.  Any member of the governing authority or municipal employee who uses the credit card to make an expenditure that is not approved for payment by the governing authority shall be personally liable for the expenditure and shall reimburse the municipality.

Is anything ringing a bell?

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