Parker v. Berry

37 Va. Cir. 511, 1992 Va. Cir. LEXIS 540

• Court: Virginia Beach County Circuit Court
• Decided: September 11, 1992
• Docket: Case No. CL92-2156
• Status: Published

Opinion

By Judge A. Bonwill Shockley

This matter came before the Court on September 10,1992, on the plaintiffs Motion for Judgment and the defendant’s Demurrer and Plea of Sovereign Immunity. The defendant presented oral testimony from S. Clark Daugherty, Senior Assistant Public Defender, and the parties argued their respective positions to the Court. In response to defendant’s demurrer, plaintiff stated in open court that his Motion for Judgment should not be construed as asserting a claim against the defendant under 42 U.S.C. § 1983. The only matter before the Court is plaintiff’s state law tort claim for legal malpractice and defendant’s Plea of Sovereign Immunity.

The Court made the following findings of fact. Defendant Theresa Berry, Assistant Public Defender, is a state employee who is paid a salary by the Commonwealth of Virginia. She is responsible for providing legal services for indigent persons charged by the State with crime. The State has an interest in providing legal services to indigents in an efficient and cost effective manner.

Defendant does not choose her clients and has no discretion to refuse to provide legal services to any person assigned to her. The Office of Public Defender does not bill its clients, and defendant receives no compensation directly or indirectly from the persons she represents. Defendant is subject to supervision and evaluation in the performance of her duties by supervisors who are employed by the State.

In accordance with the above findings, the Court holds that this case is controlled by the principles set forth in Gargiulo v. Ohar, 239 Va. 209 (1990), and that the defendant is protected by sovereign immunity. Accordingly, it is hereby ordered that defendant’s Plea of Sovereign Immunity is granted, and plaintiff’s Motion for Judgment is dismissed.