More on Martha Graham. For those of you who can't get enough of the Martha Graham case, you can read this article in today's New York Times.

RLUIPA Appeal. A Jewish day school in Westchester brought an action against the village in which it was located, attempting to force the village to grant its application for modification of its special permit to allow consturction of an additional school building, along with renovations and improvements to the existing facilities. The village had denied the application for a number of reasons, including (1) the potential for increased intensity of use due to increased enrollment at the school, (2) traffic concerns relating to increased volume and the effect on nearby intersections and (3) insufficient provision for parking. The district court granted summary judgment to the school, holding that it was entitled to an immediate and unconditional approval of its application under the Religious Land Use and Institutionalized Persons Act of 2000.

RLUIPA prohibts a governmental entitiy from apply a land use regulation "in a manner that imposes a substantial burden on the religious exercise of a person . . . or institution, unless the government demonstrates that imposition of the burden . . . is in furtherance of a compelling governmental interest; and . . . [the burden imposed] is the least restrictive means of furthering that compelling governmental interest." The use, building, or conversion of real property for the purpose of religious exercise is considered religious exercise under the Act.

The district court had based its decision on the finding that the village's act was a complete denial of the application. The Second Circuit disagreed, stated that it did not see how the resolution "supports, much less compels, the conclusion that the [village's] ruling was a 'complete' rejection -- one which foreclosed consideration of a modified plan." While the Second Circuit noted that the District Court's "assessment of the complete definitve nature of the [village's] ruling may well be correct," it held that "upon a grant of summary judgment, it makes no difference what the court believes the facts to ve. The judgment may not properly be granted (or upheld on appeal) unless the record compels each finding of a fact necessary to the judgment." The Court held that the district court had given no explanation why it believed the record, viewed in the light most favorable to the village, compelled the conclusion that the rejection of the school's plan was a "complete" rejection.

The Court also stated -- I hesitate to say held because this appears to be a dictum -- that it did not believe that "any program of a religious school to improve its facilities in a manner that would improve the students' overall educational experience would be protected by RLUIPA from the implementation of a land use regulation." If such were the case, then a religious school would be entitled to benefits not available to a secular school, implicating First Amendment concerns. While the Court did not definitively rule on that issue, it commended such considerations to the District Court's attention on remand.

Finally, the Court disagreed with the District Court that traffic concerns can never constitute a compelling governmental interest and found that the District Court had improperly made factual findings in rejecting the village's expert reports submitted on the summary judgment motion.

The case was remanded for further proceedings. The decision in Westchester Day School v. Village of Mamaroneck can be found here. The case was decided on September 27, 2004.

The HMOs win again. On remand from the Supreme Court, the Second Circuit vacated its decision in Cicio v. John Does 1-8, and affirmed the decision of the District Court, dismissing the complaint. The Court held that under Aetna Health Inc. v. Davila, a Supreme Court case decided last term, the plaintiff's malpractice claim against her HMO was preempted by ERISA. The decision in this case can be found here.

Quattrone Doesn't Want to Go to Prison. Imagine that. Frank P. Quattrone, the former Credit Suisse First Boston banker, asked a federal appeals court to reverse a judge's order requiring him to surrender to prison by Oct. 28 to begin serving an 18-month sentence for obstructing justice.

Mr. Quattrone filed court papers yesterday asking the United States Court of Appeals for the Second Circuit in Manhattan to allow him to remain free pending the appeal of his conviction. At his sentencing on Sept. 8, Judge Richard Owen of United States District Court rejected an agreement reached by defense lawyers and prosecutors that would have temporarily kept Mr. Quattrone out of prison.

For more information, click here.

Second Circuit puts Cayuga land claim on hold. The Supreme Court's decision to hear the city of Sherrill's tax dispute case against the Oneida Indian Nation of New York is triggering a ripple effect on the Cayuga Indian land claim appeal. The Second Circuit Court of Appeals has notified lawyers in the land claim case that it will not render a ruling until the Supreme Court decides the Sherrill dispute. The top court has said it will hear the case next year. For more information, click here.

Indian Dispute II. A couple of days ago, I posted about Seneca Nation of Indians v. State of New York. There was a companion case that I did not mention because, frankly, I didn't have the time. Now I do. The companion case involved an attempt by the Seneca Nation to invalidate an easement granted to New York State and the New York Thruway Authority on the ground that the conveyance violated the Indian Trade and Intercourse Act. The Court held that the case had been properly dismissed on the ground of sovereign immunity. The decision in the case can be found here.

Not appealable. The Second Circuit, in Cruz v. Ridge, has held that an order of a district court transferring a case to the Second Circuit was not appealable because the plaintiff can challenge jurisdiction before the Second Circuit. The case involves an attempt by an illegal alien to challenge an immigration order by bring a habeas corpus action. The government moved to transfer to the Second Circuit because the courts of appeal have sole jurisdiction over appeals of immigration orders, which motion was granted by the district court. Cruz sought to appeal from that order. The decision in the case can be found here.

Yippee! I'm not a flappy fish anymore. I'm a crawly amphibian.

Punitives for Tobacco Companies. According to today's New York Times, the Second Circuit is poised to decide a case which will determine once and for all if tobacco companies should be assessed punitive damages for concealing the health hazards of smoking. The Court heard argument back in November, so I'm wondering if the Times knows something that I don't know about the timing of the release of this impending decision, or if it was just a slow day. The article can be found here. Thanks to Second Circuit News for the pointer.

Mea Culpa. I've just become aware that some of the links on this site have not been working. I am rectifying the situation. Please, if you find any problems with my site, contact me. I want it to be helpful to all of my readers and visitors.

Indian Dispute. The Second Circuit held that the State of New York legally owned the Niagra River islands. The Seneca Nation claimed that the acquisition of the islands by New York in 1815 from the Seneca Nation of Indians for $1,000 and an annuity of $500 per year was illegal under the Non-Intercouse Act. The Court, however, held that New York had acquired title to the islands prior to the 1815 transaction. It agreed with the District Court's view that Senecas' aboriginal title had been extinguised either pursuant to the 1764 Treaties of Peace between Great Brittain, which transferred title from the Senecas to Great Brittain and the Senecas or by the 1784 Treaty of Fort Stanwix, which extinguished the Seneca's title and passed it to New York. Hence, the 1815 transaction was irrelevant. The decision in Seneca Nation of Indians v. State of New York can be found here.

New trial. A federal judge dealt a stinging setback to the city and the police yesterday by overturning a jury verdict that had cleared the city of liability in the 1999 police shooting of an emotionally disturbed man who was clutching a hammer. This case arose out of events that occurred in my neighborhood of Brooklyn. I've never been quite clear on how I come out -- with the family of Gidone Busch or with the officers of the 66th Precinct (which is right across the street from my apartment). Anyway, for more info, click here.

Strip Search. No, that's not a sleazy come-on. That's what N.G. v. State of Connecticut was about -- repeated strip searches of young women in a juvenile detention facility. The women contended that the searches violated their Fourth Amendment rights in that there was no reasonable cause to believe they were hiding contraband. The District Court had dismissed the case, but the Second Circuit reversed, finding that while the initial search, when the women first came to the facility was appropriate, the subsequent searches while the women were in custody violated the Fourth Amendemnet in the absence of reasonable suspicion that contraband was possessed. The Court vacated the judgment of the District Court and remanded the case to determine what relief, if any, should be awarded.

The decision in this case can be found here.

We Got the Power! The Second Circuit, in United States v. Ekanem, decided a question of first impression in the Circuit -- whether the government can be a victim under the Mandatory Victim's Restitution Act of 1996 ("MVRA"), which provides the Court with the power to order restitution to the victims of certain offenses, including offenses against property. In this case, the defendant had embezzled funds provided to a not-for-profit corporation by the United States. Ekanem argued that the statute was not applicable when the "victim" was the government. The basis for this position is that the statute defined victim as " a person directly and proximately harmed as a result of the commision of an offense for which restitution may be ordered." Under the Dictionary Act, the government is excluded from the term "person." However, the Second Circuit noted that the Dictionary Act's definition does not apply if the context of a particular statute indicates otherwise. The language of the MVRA indicated that the government could be a victim thereunder. The Court also noted that the term "victim" in the Victim and Witness Protection Act included the government. Finally, the Court held that inclusion of the government within the term "victim" is consistent with the intent and purpose of the MVRA. Hence, the Second Circuit held that courts have the power to order restitution to the government under the MVRA. The decision can be found here.

Waiting. While I'm waiting for the Second Circuit to do something (anything!), I thought my readers might be interested in this article on Judge Posner's stint as a guest blogger on the Lessig Blog.

Another Landmark for Second Opinions. Yesterday, we hit the 1,000 mark for visits. I'm breaking out the champagne.

SEC: Investors need more time to sue. The Securities and Exchange Commission, in an amicus brief filed last Tuesday, is urging the Second Circuit to give some investors more time to sue companies for fraud. The case in which the brief was filed is AIG Asian Infrastructure Fund LP vs. Chase Manhattan Asia Ltd. and J.P. Morgan Partners. For more info, click here.

No Get Out of Jail Free Card. William McMahon was on trial for kidnaping in the second degree, unlawful imprisonment in the first degree, attempted rape in the first degree and assault in the second degree. His brother-in-law had already been tried for participating in the same crimes. The judge at the first trial was to try McMahon's case as well. During plea negotiations, he told the defendant that the prosecutor's offer was very fair in light of the evidence he had heard at the first trial.

The defense counsel asked the judge to recuse himself. The judge refused. The judge offered to transfer the case if the defendant would waive his right to a jury trial. McMahon agreed, and the case was tried before a second judge, who convicted him.

On appeal, he argued, among other things, that his waiver of his right to a jury trial had been coerced. The Appellate Division affirmed his conviction, although it dismissed one of the charges. The New York State Court of Appeals declined to hear the case.

McMahon brought a habeas proceeding in federal court, arguing that the first judge had been biased (evidently arguing that the judge's refusal to recuse himself was error) and that he had been coerced to waive his right to a jury trial. The District Court held that the first judge was not required to recuse himself, but granted the petition because the offere to transfer the case to another judge on the condition that McMahon agree to a bench trial was coercive.

The Second Circuit agreed that the judge did not err in refusing to recuse himself, but held that the waiver of the right to a jury trial was not coerced. The Court noted that state court judges, unlike federal court judges, are permitted to participate in plea negotiations and may discuss the sentencing repercussions of a defendant's choice to go to trial rather than plead guilty. The fact that the judge had some opinion on the case based on evidence he heard in the prior case was not sufficient basis for a bias motion. Hence, McMahon had no right to have a trial that was not presided over by the first judge.

The Court noted that a criminal defendant may bargain away his or her right to a jury trial in exchange for other benefits that would not otherwise be available to him. McMahon did not want to be tried before the first judge. He made a reasoned decision to waive his right so that he could be tried before a different judge. The Court held that there was no coersion.

The decision in McMahon v. Hodges can be found here.

Roadblock. The investigation of John G. Rowland, the former governor of Connecticut, hit a roadblock this week when the Second Circuit Court of Appeals ruled that a state-appointed lawyer could not be compelled to appear before the grand jury that is investigating Mr. Rowland and people who were connected to his administration for corruption. See the article from today's New York Times here. No written decision is available. Thanks to Second Circuit News for the link.