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MISCONDUCT CHARGES AIRED FOR PLACER JUDGE A Placer County judge who told jurors to lie about their racial biases to get out of jury duty told the Commission on Judicial Performance on Wednesday he did not deserve to be punished for his behavior. Judge Joseph O’Flaherty said his mistake amounted to legal error, but was not misconduct, as the CJP alleges, said James Murphy, who represents the judge. “I thought [the hearing] went reasonably well under the circumstances,” said the Murphy, Pearson, Bradley & Feeney partner. The CJP filed misconduct charges against O’Flaherty last year, after the Third District Court of Appeal reversed two convictions from his courtroom. One case involved a black defendant; the other, an Iranian. During voir dire in both trials, O’Flaherty told jurors that racism did not belong in his courtroom. However, acknowledging that to admit bias would be difficult, he gave permission to people to use another excuse to get off the jury. A special masters’ report in the case said O’Flaherty’s actions interfered with the rights of the defendants, but that the judge did not act in bad faith. The CJP has 90 days to decide whether to discipline O’Flaherty. — Jeff Chorney 2ND CIRCUIT SAYS IT’S AT ODDS WITH OTHER COURTS NEW YORK — Until the nation’s highest court finds otherwise, the Second Circuit U.S. Court of Appeals will continue to hold that business practices that have a disparate impact on older workers are actionable under a federal anti-discrimination law. Reaffirming Second Circuit precedent that is at odds with the majority of federal appellate courts, the appeals court said a showing that a layoff plan implemented by a New York company was properly brought under the Age Discrimination in Employment Act, even though the company did not intend to discriminate. The circuit, in Meacham v. Knolls Atomic Power Laboratory, 02-7378, upheld jury verdict findings that older employees at Knolls had lost their jobs not through an intentionally discriminatory layoff plan but through a facially neutral policy that had a discriminatory impact and that the company could have accomplished its goals by a different, non-discriminatory method. The plaintiffs’ lawyer, John DuCharme of Berger & DuCharme in Clifton Park, N.Y., said the suit was brought because 30 of 31 people who were laid off were over age 40. Writing for the three-member Second Circuit panel, Judge Rosemary Pooler noted that the Supreme Court is likely to resolve the issue next term in Smith v. City of Jackson, 351 F.3d 183, (2003), where the Fifth Circuit held that the disparate impact theory of recovery is not available in age discrimination cases. In so holding, the Fifth Circuit joined four other circuits — the First, Seventh, 10th and 11th — to come down on this side of the issue. The opposite position is held by the Second, Eighth and Ninth Circuits. The Sixth Circuit, according to papers filed in the Knolls appeal, has yet to resolve the issue. — New York Law Journal

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