Cultivated Compendium

Here's the story I wrote for the Connecticut Law Tribune regarding a civil-rights attorney who alleges her own civil rights were violated by the city of Bridgeport in its hiring of outside counsel to represent city employees: 

osephine Miller is no stranger to litigation involving the city of Bridgeport and its school district.

In the highest profile case, which went to the state Supreme Court, the Danbury-based civil rights litigator represented parents who objected to the state's decision in 2011 to replace members of the elected school board with its own appointees.

Now Miller also has her own legal complaint pending. She is alleging in federal court that her civil rights were violated by the Bridgeport City Attorney, who is responsible for hiring outside counsel for school district employees entitled to city-paid legal representation. Specifically, Miller alleges that City Attorney Mark Anastasi paid a white attorney who formerly provided representation for a certain client, but that he has refused to pay Miller, who is an African American, for her work for the same client.

Miller's client, Andrew Cimmino, is a former Bridgeport elementary school teacher who was fired following sexual abuse allegations. Cimmino claims the allegations were fabricated by two school employees, and he has pursued civil claims against the employees and the school district. Miller defended Cimmino in a sexual harassment and constitutional-rights lawsuit the two school employees brought against the Bridgeport Board of Education, the city of Bridgeport and Cimmino.

Most recently, U.S. District Judge Vanessa Bryant has ruled that Miller's claims of racial discrimination regarding payment for her representation of Cimmino could survive a motion to dismiss. But the judge seemed to express some skepticism about the complaint, writing Miller "faintly alleged" her conspiracy claim.

Miller's new counsel in the civil rights action, Richard C. Gordon, of Bloomfield, said in an interview that it is "not unusual" to see skeptical language from judges at an early stage of court proceedings. Discovery is not complete, Gordon pointed out, and he expressed confidence that they will fully prove the allegations of racial discrimination.

Miller's complaint does not provide any information about how much she thinks she is owed. The complaint does says she has not been paid since January 2010 and that Cimmino's prior attorney was not required to first incur legal fees and expenses before he received reimbursement.

Bridgeport Associate City Attorney Betsy Edwards said the allegations of racial discrimination in the city attorney's hiring of outside counsel "are demonstrably untrue." She said Miller has personal knowledge that the City Attorney's Office has African-American attorneys on its staff and also hires them for outside counsel.

The bottom line, according to the city, is that Anastasi is the only one authorized by the city charter to decide if city employees can hire outside counsel paid for by public tax dollars, and that authorization has not been granted to Miller in the Cimmino case. Edwards said Miller is trying to "force and coerce the City Attorney's Office" into hiring her to represent city employees entitled to legal representation, Edwards said.

But Gordon said the choice of outside counsel should not belong to the city attorney. "Any plaintiff in any matter has the right to select his or her attorney," said Gordon. "It would patently unfair to essentially require a plaintiff to use an attorney that he or she does not want."

In her ruling, Bryant noted that Miller often represents non-school employee clients who are suing the city of Bridgeport. For that reason, the judge said, the city may be reluctant to hire Miller to represent its own employees.

"While the record does not indicate the nature of the various representations, it is not inconceivable, for example, that an attorney who represented the city would be privy to information which would be adverse to its interests in a subsequent action against the city," Bryant said.

The federal judge rejected Miller's request to amend her complaint to add new claims of tortious interference with her contracts with her clients, conspiracy between two or more individuals to unlawfully deprive Miller of the right to make and enforce contracts due to her race, and other claims.

According to the judge's opinion, Miller also wanted to add allegations that she was told by an assistant city attorney that the city would not settle lawsuits brought by Miller because she has so many cases pending against Bridgeport. Miller also wanted to add a second allegation that another assistant city attorney told Cimmino, the fired principal, that "he should not employ Miller, that she was often reversed on [court] decisions entered in her favor, and that the client should employ a different attorney."

Miller also wanted to add a third allegation she has not been paid for representing another Bridgeport city employee.

Bryant ruled that those allegations don't share a nucleus of common fact with what Miller has already alleged regarding Cimmino, the judge said.

"While Miller alleges that various Bridgeport city attorneys were involved in the alleged conspiracy, she has utterly failed to connect either the attorneys or the incidents she alleges to be involved," Bryant said. "Moreover, although she alleges that this conspiracy's goal was to deprive her of her right to make or enforce contracts based on her race, Miller has failed to allege any inference of discrimination in the new incidents she seeks to add to the action."

Gordon said he will file a new complaint on Miller's behalf with the allegations that the judge did not permit to be added to the Cimmino case as well as the conspiracy claim regarding the Cimmino situation.

Read more: http://www.ctlawtribune.com/id=1202649823476/Attorney-Claims-City-Refuse...

I'm writing several times a day about products liability for Law.com/The National Law Journal. Occasionally I cross-post a blog I find particularly interesting.

The U.S. Supreme Court disfavored setting individual damages through statistical sampling in Wal-Mart Stores Inc. v. Dukes. But Alexandra Lahav, a University of Connecticut School of Law professor, argues there remains a role for sample trials in mass torts.

"Right now, the way the law is, you couldn't have a mandatory sampling regime" of cases picked by the plaintiffs and cases picked by the defendants and award damages based on the average of verdicts in those cases, Lahav said in an interview.

But academics have argued that the use of sample trials could comport with due process if used to establish a rebuttable presumption of what damages awards should be, said Lahav, who focuses on due process concerns in class actions and mass actions.

"One of the biggest issues facing courts today in civil procedure is the massive influx of cases," Lahav said—whether in the Deepwater Horizon case or litigation over products that have been mass-distributed.

There are problems with winding up mass-torts through accords in which plaintiffs' law firms settle their inventory of cases separately, Lahav said. Some lawyers are better at negotiating than others and can reach better results for their clients.

Then too, defendants sometimes offer more to plaintiffs with lower-value claims to persuade them to settle at the expense of plaintiffs with higher-value claims and greater injuries, Lahav said. Legal ethicists have “expressed the concern that some plaintiffs will be sold out in favor of other plaintiffs," she said.

If there were more transparency to settlements, Lahav said, she would worry less about whether plaintiffs are getting fairly compensated. Inventory settlements "may be perfectly fair,” she said. “They may be fabulous."

And sample trials would allow for plaintiffs to feel they have been heard, she said.

“Everybody else can look at those [sample] cases and see what happens,” Lahav said. “It's almost like a representative or surrogate. [While] they won't get their catharsis of having their very own trial, they'll get to feel that, at least, the defendant was called to account.”

Legislation is pending again in Connecticut that would reduce the size of the zones near schools, daycares and public housing projects that trigger enhanced sentences for defendants convicted of drug possession and selling within those zones. Here is the piece I wrote about the subject for the Connecticut Law Tribune:

During the crack epidemic of the 1980s, it seemed like a commonsense move to help protect the young and the innocent.

The state would add enhanced penalties for drug possession and drug trafficking within 1,500 feet of schools, day-care facilities and public housing complexes. Drug defendants faced an extra three years on their prison sentence if convicted of the extra charge.

But in recent years, some lawmakers and members of the legal community have had second thoughts. The Connecticut General Assembly is once again considering legislation that would reduce the size of the drug-free zones from 1,500 to 200 feet.

The Judiciary Committee held a hearing on the matter March 12. The legislation, which has the backing of both prosecutors and defense attorneys, has not been scheduled for a vote.

Former Supreme Court Justice David Borden, who now chairs the Connecticut Sentencing Commission, said the commission has recommended that there be a reduction in the size of the sentencing enhancement zones.

The commission found that in Connecticut's biggest cities nearly every piece of land is within 1,500 feet of a school, day-care center or public housing facility. And so the penalties for posessing drugs are the same in virtually every part of those municipalities. If there are no zones where penalties are increased, "there's no special deterrent, which is the theory of the enhanced sentences," Borden said. "If every area is a special area, then there is no special area."

The commission includes members from various sectors of the criminal justice system, and proposals adopted by the panel have the group's consensus, Borden said. Mark Dupuis, a spokesman for the Office of the Chief State's Attorney, said there are state's attorneys on the Sentencing Commission and the office is supporting the commission-backed legislation.

Morgan Ruecker, a board member of the Connecticut Criminal Defense Lawyers Association and a partner with Shipman & Goodwin, said the Sentencing Commission "has come up with commonsense changes to address some issues that need to be addressed. This is a recommendation that we really support. It's an appropriate time to move forward with this."

The Prison Policy Initiative (PPI), a Northampton, Mass.-based reform group, says the concept of drug-free zones in areas where children congregate is a popular one across the nation. A just-released PPI report says that Connecticut is one of the states with the largest zones. PPI found that 94 percent of Hartford residents, 93 percent of New Haven residents and 92 percent of Bridgeport residents live in areas covered by the sentencing enhancement.

The report's author, PPI's legal director Aleks Kajstura, said she understands the concern about reducing sentencing enhancement zones at a time when narcotics remain illegal. But Kajstura echoed Borden's point that the law hasn't really created any "pressure penalties" because entire "urban areas are essentially all within enhanced penalty zones."

There also are "racial disparities that this law creates" because more minorities live in cities, Kajstura said.

In a 12-month period ending in October 2012, 3,109 white defendants in Connecticut and 3,102 nonwhites were charged with drug crimes in school zones, according to prepared testimony by Sentencing Commission Acting Director Andrew Clark.

Connecticut is not the only state to revisit the issue. In 2010, New Jersey passed a law that requires judges to consider a variety of factors before handing down an enhanced sentence for drug arrests near schools and day-care centers. This past January, Massachusetts reduced its school zone radius to 300 feet.

Legislation that would have shrunk Connecticut's zones to 300 feet appeared on the way to passage last year in the Legislature before lawmakers from suburban and rural areas raised objections. They said the problems with the enhanced enforcement zones covering entire municipalities is an urban problem and that the zones should not be shrunk statewide.

"We're identifying an issue in urban areas and applying it to 169 cities and towns," Rep. Jason Perillo, R-Shelton, said during debate on the issue last year. "Who are we helping? We're helping that drug dealer who happens to sell his product 500 feet from a school."

This year, state Rep. Prasad Srinivasan, R-Glastonbury, submitted testimony in opposition to the legislation. "Shrinking the drug zone, to my mind, is sending the wrong message" about illegal drugs, Srinivasan said.

The legislator said he does understand the concern that urban residents convicted of drug possession and drug trafficking are more likely to face enhanced penalties than rural residents. He said other policy changes should be considered. Last year, Rep. Rosa Rebimbas, R-Naugatuck, proposed and then withdrew an amendment that would have allowed municipalities to determine the size of school zones by local ordinance.

State Rep. Christie Carpino, a Republican who represents Cromwell and Portland, also submitted testimony this year to the Judiciary Committee opposing the reduction in drug-free zones.

Carpino noted that there are about 3,500 schoolchildren in her district. "Each one of these kids will face struggles throughout their lives," she said. "Giving drug dealers reduced penalties for selling close to their schools is one danger we should not impose on them."•