Bad news. Chief Justice William H. Rehnquist has been hospitalized for thyroid cancer. He's being released from the hospital later this week, and he expects to be back on the bench next week. Although I respectfully disagree with him on many (most) issues, my prayers are with him for a full recovery.

Close, but no cigar. The Second Circuit agreed with the District Court that counsel for Cox, a criminal defendant in a murder case, was ineffective in failing to object to a patently unconstitutional jury instruction on intent, where intent was the primary issue in the case, and that counsel's ineffectiveness prejudiced Cox. It also agreed that the state courts' denial of Cox's appeal "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court." However, it vacated the decision of the District Court, granting Cox a writ of habeas corpus because the District Court had not affored Cox's counsel an opportunity to explain his deficient performance, as required by the case law. While the Court doubted that Cox's counsel could "offer an explanation to defeat the conclusion that his performance was a result of ignorance, inattention or ineptitude," it nevertheless remanded the case to the District Court for further proceedings.

The decision in Cox v. Donnelly can be found here.

Quattrone free pending appeal. Former star banker Frank Quattrone won a court ruling on Tuesday that will allow him to stay out of prison until a decision is reached on the appeal of his obstruction of justice conviction.

In allowing Quattrone to remain free on bail, the U.S. Second Circuit Court of Appeals overturned a lower court ruling that would have forced the one-time investment banker to report to prison next week to begin serving an 18-month jail sentence.

For more information, click here.

Joint Post III. Yet another special eduction case has come down from the Second Circuit. In AA v. Fred Philips, the Court held that the plaintiff bore the burden of proving that the defendants -- the New York State Education Department, the Commissioner of Education and the Governor -- that they had failed in their obligation to bring the Central Islip Union Free School District into compliance with the Individuals with Disabilities Education Act on issues specifically identified as deficient in a report issued by the Education Department and failed to comply with their monitoring and enforcement obligations with respect to district IDEA violations that were not noted in the report.

The Second Circuit held that the plaintiffs had not met their burden and affirmed the dismissal of the District Court.

The decision can be found here. This post can also be found on Second Opinion's sister blog -- The FAPE Page, which deals with special education law issues.

WorldCom again! In this post, I promised an update as to why the Second Circuit, in a summary order, vacated an injunction of the District Court enjoining an Alabama state court from trying a case related to the WorldCom securities litigation. In the summary order, the Court stated that a full opinion would follow, and, on October 18, 2004, the decision in Retirement Systems of Alabama v. J.P. Morgan Chase & Co. came down.

The Court's decision was based on a violation of the Anti-Injunction Act, which bars a federal court from enjoining a proceeding in state court unless that action is "expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." The Supreme Court has held that any doubts as to the power of a federal court to issue an injunction against an action pending in state court should be resolved in favor of letting the state court action proceed.

The Court noted that it was clear under Supreme Court precedent that a federal court in which an in rem action is pending may enjoin a state court proceeding involving the same res because such a proceeding would necessarily impair and may defeat the federal court's jurisdiction. A federal court's jurisdiction in an in personam action, however, would not be so impaired. The Second Circuit had held in an earlier case that a federal court in an in personam case may enjoin a parallel state court action if the state court action would interfere with a pending settlement of a federal case.

Although the appellees argued that the parties were in settlement discussions, they could not represent that a settlement was imminent. Nor had they shown that the District Court's injunction was necessary to protect the prospective settlement. And while the state court action was likely to delay the trial of the federal action, the Second Circuit held that the District Court had no interest in being the first court to go to trial or reach a judgment. Hence, the injunction was not necessary in aid of the District Court's jurisdiction and violated that Anti-Injunction Act.

The decision in the case can be found here.

Judge Feinberg gets Devitt Award. Second Circuit Senior Judge and former Chief Judge Wilfred Feinberg has been selected as the 2003 recipient of the Edward J. Devitt Distinguished Service to Justice Award. Judge Feinberg will receive the award on Oct. 22, 2004, at the Daniel Patrick Moynihan U.S. Courthouse in New York City. (Thanks to Second Circuit News for the information.)

ADA case. See this article on a recent Second Circuit case dealing with the issue of whether personality problems (i.e., the ability to get along with others) is a disability under the Americans with Disability Act.

New blog. Not that it has anything to do with the Second Circuit, but anyone interested in complementary and alternative medicine law should check out Michael H. Cohen's blog on that subject.

Self-incrimination and the right to counsel. A defendant who wants a court-appointed lawyer but claims that forced public disclosure of his finances will violate the privilege against self-incrimination must face an open hearing with the government present, according to a decision by District Judge Sweet.

This will certainly be heading to the Second Circuit and maybe to the Supreme Court. I do not have the full decision yet -- I've only read this article -- but will post again on this fascinating (to me, at least) topic at a later date after I've read the decision. (I'm not sure, but you might need a subscription to the New York Law Journal on-line to access the article.)

Joint Post II. Another Second Circuit special education case about which I am posting here and on The FAPE Page, Second Opinions's sister blog. (I am the father of both.) In J.S. v. Attica Central Schools, six students who attend school in the Attica Central School District brought an action against the school district, claiming that they had been denied a free appropriate public education and stating claims under the Individuals with Disabilities Education Act, section 504 of the Rehabilitation Act, section 1983 and New York State education law. The school district moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The District Court denied the motion but certified the issue of subject matter jurisdiction for interlocutory appeal. The Second Circuit agreed to hear this appeal.

The jurisdictional issue was whether exhaustion of administrative remedies was required before a Federal District Court could hear the case. The District Court had held that the school district's alleged systemic violations of IDEA could not be remedied through administrative proceedings and that exhaustion would be futile.

The Second Circuit affirmed, holding that systemic violations of IDEA, as opposed to "textbook" cases presenting issues involving individual children, could not be remedied by administrative action and that the exhaustion requirement would be futile.

The systemic problems at issue included: (1) the school district's total failure to prepare and implement Individualized Education Programs, (2) the school district's failure to notify parents of meetings as required by law, (3) the school district's failure to provide parents with legally required progress reports, (4) the school district's failure to provide appropriate training to school staff, (5) the school district's failure to perform timely evaluations and reevaluations of disabled chilren, (6) the school district's failure to provide parents with required procedural safeguards regarding identification, evaluation and accommodation of otherwise disabled children and (7) the school district's failure to perform legally required responsibilities in a timely manner, including providing and implementing transition plans, transitional support services and declassification services for children with disabilities.

The decision can be found here.

Ineffective. The Second Circuit has held, in United States v. Morgan, that it generally will not decide ineffective assistance of counsel claims on direct appeal. Such claims should be raised in a habeas corpus petition. The decision can be found here.

Joint Post. This is my first joint post with Second Opinions's sister blog, The FAPE Page. That blog covers special education law, so this post is about a special education case that came down from the Second Circuit.

The question presented in Mackey v. Board of Education for the Arlington Central School District was whether the parents of a learning disabled child are entitled to equitable relief under the Individuals with Disabilities Education Act, reimbursing them for private school tuition, when the denial of reimbursement results solely from the untimely issuance of a state administrative decision. The parents, disagreeing with the IEP developed by the school district, placed their child in a private school for the 2000-01 school year, while a decision was pending with respect to reimbursement at the same private school for the prior school year.

Ultimately the state review officer held that the private school had become the student's pendency placement for the 2000-01 school year based on the finding that the parents were entitled to reimbursement for that school for the prior year.

The District Court, however, held that because the decision which found that the parents were entitled to reimbursement for the 1999-2000 school year was rendered after the 2000-01 school year, the parents could not be reimbursed for the tuition for that year.

The Second Circuit disagreed, holding that penalizing the parents because the state review officer was derelict was unfair. It remanded the case to the District Court for a finding as to when the student's pendency placement at the private school took place.

The decision can be found here.

Quattrone Should Go to Prison Now. At least that's what the United States government thinks. The government urged the Second Circuit to reject a request from former star investment banker Frank Quattrone that he be allowed to stay out of prison while he appeals his obstruction of justice conviction. Quattrone, convicted of hindering a federal probe into stock allocation, is scheduled to begin serving an 18-month sentence late this month. Last month he asked the appeals court to allow him to remain free pending appeal. But federal prosecutors, in a filing with the Court, said that Quattrone's request amounted to "little more than a series of complaints" that his trial judge treated him unfairly. For more information, click here.

Acceptable access. The Court, in Bourdon v. Loughren, held that a prisoner's right to access to the courts is satisfied by appointment of counsel and such right was not violated by the government's denial of materials that the prisoner requested from the jail's law library. The Court further held that the access to courts through appointed counsel is not measured by reference to the Sixth Circuit's guarantee of effective assistance of counsel. In order to bring such a claim, asserting denial of access to the courts by appointed counsel, a prisoner must show that the provision of counsel did not furnish him with the capability of bringing his challenges before the courts, not that he was denied effective representation in the court. The Court found that Bourdon's rights had not been violated under the facts of the case.

Judge Oakes concurred, agreeing that Bourdon's rights had not been violated, but disagreed with the majority's holding that a state's affrimative obligation to provide access to the courts can be measured without reference to the Sixth Amendment's guarantee of effective assistance of counsel.

The majority decision can be found here. Judge Oakes's concurrence can be found here.

Novel Question. The Second Circuit affirmed the conviction of Michael Griffith in a summary order, but it issued a full decision to explain a novel question implicated in the appeal: whether, under 18 U.S.C. 3153, information obtained from a defendant during a pretrial-services interview can be used against the defendant for impeachment purposes. The Court held that it could.

No (Re)argument here. At the request of a judge, the court, sua sponte, conducted a poll as to whether to rehear Muntaqim v. Coombe en banc. The case involved the issue of whether a provision of New York Election Law, which disenfranchises persons currently in prison or on parole can be challenged under the Voting Rights Act. The Court declined to rehear the case. The order with concurrences and dissents can be found here. The original panel decision, which affirmed the dismissal of the action, can be found here.