Public Trial. The Second Circuit granted a writ of habeas corpus to a criminal defendant whose relatives were order excluded during the testimony of an undercover officer unless they consented to sitting behind a screen. The Court, in Rodriguez v. Miller, held that such a procedure violated Rodriguez's Sixth Amendment right to a public trial. The decision can be found on the Second Circuit website. The case was decided on February 17, 2006.

Certified questions. In Colavito v. New York Organ Donor Network, Inc., the Second Circuit certified certain questions to the New York State Court of Appeals. The questions certified are as follows:

Do the applicable provisions of the New York Public Health Law vest the intended reipient of a directed organ donation with reights that can be vindicated in a provate party's lawsuit sounding in the common law tort of conversion or through a private right of action derived from the Public Health Law?

Does the Public Health Law immunize either negligent or grossly negligent conduct?

If a donee can bring a provate action to enforce the rights referred to in the first question, may the plaintfiff recover nominal or punitive damages without demonstrating pecuniary loss or actual injury?

The decision can be found at the Second Circuit website. The case was decided on February 23, 2006.

Another new blog. My law firm, Cox Padmore Skolnik & Shakarchy LLP is starting a new blog, which will deal with commercial law. The template of the blog already exists, but the content will be appearing shortly, probably some time nex week. Please check it out.

New blog. Well, it's not really new. I've known about it for some time, but for some unknown reason I never added it to my blogroll. Second Circuit Blog is run by members of the Federal Public Defenders office in the Second Circuit. It appears to deal exclusively with Second Circuit criminal cases, though, if I am wrong on that, I hope someone will correct me so that I can correct the error. It is now on my blogroll and I encourage my readers (such as they are) to check it out.

Spanish Isn't Hispanic. New York's definition of "Hispanic" for purposes of certifying minority-owned businesses for possible affirmative action excludes people of Spanish or Portugese descent who do not also come from Latin America. The Second Circuit, in Jana-Rock Construction v. New York State Department of Economic Development held that under rational basis review the distinction passes constitutional muster. The decision, which was rendered on February 21, 2006, can be found at the Second Circuit website.

New Policy. This is my policy, not the Court's. While I will continue to provide summaries of Second Circuit cases, I am going to also post on my general views on the law, appellate practice and other legal matters. I hope that you will continue to find this blog to be interesting and informative. If you have comments, complaints or suggestions, feel free to e-mail me.

Fully retained. In the Western District of New York, they have a practice of asking retained attorneys whether they are "fully retained," i.e., retained for the duration of the case, to avoid mid-trial motions for the appointment of counsel once the defendant's money has run out. This policy was challenged in United States v. Parker, which was decided on February 21, 2006. The Second Circuit held that the policy is proper. The decision can be found at the Second Circuit website.

Constitutional. The Second Circuit has held that the Religious Freedom Restoration Act of 1993 is Constitutional as applied to federal age discrimination law. The case involved a church policy requiring retirement of ministers at age 70. Paul Hankins, a Methodist minister who challenged the policy. In that RFRA had been found unconstitutional as it applied to state law, I'm looking forward to a close reading of the decision to see the Court's reasoning in upholding it as applied to federal law. Stay tuned for a further post. I've noticed that the "link" to Hankins v. Lyght is not working, but you can find a link to it at Findlaw. (If you are reading this post long after February 20, 2006, the link may not be there (it's the recent cases link), but search around and you should be able to find it. The case was decided on February 16, 2006.)

Family planning. It's well known that China has a family planning policy which allows couples to have only one child. Violation of that policy was punished by sterilization. The Chengs claimed that they could not be removed from the United States based on Article III of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention prohibits the expulsion of an alien if there are substantial grounds to believe that he or she would be in danger of being subjected to torture. The Chengs claims that the Chinese policy constituted torture. The Immigration Judge rejected their claims for relief from removal and the Board of Immigration Appeals affirmed. The Second Circuit, in Ni v. Board of Immigration Appeals, held that the immigration judge's failure to consider the Chengs' claims constituted reversible error, granted the Chengs' petition and remanded the case for further proceedings. The decision can be found at the Second Circuit website. The case was decided on February 13, 2006.

Changes to Blog Roll. I've noticed that some of the blogs on my blog roll are no longer active. Second Circuit News is long gone. There hasn't been a post on On Appeal in many a moon. The Induce Act Blog has changed it's name to Legislating IP. And the Blawg Channel has fallen apart, and it's mission has been taken over by Between Lawyers. These changes have been made to the blog roll. If you know of any suitable blogs that should be added, don't be shy; let me know.

Help! I used to be able to get direct links to cases through Findlaw. Now when I find a case, I get an adobe document without an URL. The same thing happens at the Second Circuit website. If anyone knows a way to get a direct link, I'd appreciate it. E-mail me at the link on the right.

Diversity Jurisdiction Under the Telephone Consumer Protection Act. The Telephone Consumer Protection Act prohibits the sending of unsolicited junk faxes. The statute provides the state courts with exclusive jurisdiction. But the Second Circuit has held that where there is a basis for diversity jurisdiction, a federal district court can hear the case. The decision in Gottlieb v. Carnival Corp., decided on February 3, 2006, can be found at the Second Circuit website

Partial Birth Abortion Law is Out. The Second Circuit, in National Abortion Federations v. Gonzalez held the the Parial Birth Abortion Ban Act was unconstitutional because it lacked an exception for the protection of a woman's health. Chief Judge Walker concurred in the result, and Judge Straub dissented from the ruling. The decision (by Judge Newman), concurrence and dissent can be found at the Second Circuit website.

Without Prejudice. In Camilli v. Grimes, the Second Circuit held that a District Court properly exercised its discretion in allowing the plaintiff to dismiss her claim without prejudice, even though such an action would prevent the defendant from bringing a malicious prosecution action. The dismissal in this case would only allow the plaintiff to reassert her claims if the defendant brought an action against her. The decision can be found at the Second Circuit website.

From the Second Circuit Website:

12/28/05 - Due to a planned infrastructure upgrade to the Thurgood Marshall United States Courthouse, located at 40 Foley Square, the Law Library will close on Friday February 24, 2006 for the duration of the project. During the pendency of the project, the library collection temporarily will be relocated.
Effective January 3, 2006, Library Hours will be: Monday, Wednesday, Friday, 9:00 am to 12 :00 noon, Tuesday and Thursday, 9:00 am to 4:45 pm. A list of local public access law libraries and Government Documents Depository Libraries is available in the Library.

Martha loses. Well, it was worth a try, especially when you have a lot of money and had already served your sentence. But Martha Stewart lost the appeal of her conviction. The decision can be found here. (You have to click on the link to the United States v. Stewart case.)

Answers to Certified Questions. The Second Circuit had sent two certified questions to the New York State Court of Appeals in Regatos v. North Fork Bank. The questions were:

1. Can the one-year statute of repose established by New York UCC 4-A-505 be varied by agreement? If so are there any minimum limits of the variation thereof (such as "reasonable time") that estop the bank from denying Regatos recovery?

2. In the absence of agreement, deos New York UCC Article 4-A require actual notice, rather than merely constructive notice? If so, can this requirement be altered by agreement of the parties and was such achieved in this case?

The New York State Court of Appeals held that the statute of repose could not be varied by agreement. It further held that actual notice was required by the statute and that this requirement could not be altered by agreement.

In light of these answers, the Second Circuit affirmed the District Court's award of $731,005.48, plus interest, to Regatos.

The decision in this case can be found here.

Another cross-posting. The Second Circuit is on the verge of deciding whether, in considering a challenge to the substantive validity of an individualized education program (IEP) in special education cases, a court may consider retrospective evidence. That issue had not been considered in the administrative proceedings or by the district court, so the Second Circuit remanded the case to the district court to decide that issue. The decision in D.F. v. Ramapo Central School District can be found here. This post will also be posted on my other blog, The FAPE Page, which deals with special education issues.

Class Attorney's Fiduciary Duties. Where a party, who is technically part of a class, but enters an appearance in the class action by his own attorney, he cannot sue the class attorney for breach of fiduciary duty. Because he had his own attorney, he was not represented by the class attorney. The decision in Schick v. Berg can be found here.

Reduced fees. Well, there's one attorney who probably will take a hit in his business now that the decision in In re Goldstein has been released. David Goldstein, for reasons that are not clear, took an inordinate amount time to consummate the settlement of a wrongful death action in which he represented the plaintiff. Different explanations for the delay were given to different parties at different times in the case. At any rate, despite the delay, Goldstein asked for his full contingeny fee. The magistrate judge balked, noting that a number of Goldstein's cases had languished because of his lack of attention and disregard of court orders and that she had previously recommended sanctions against him in another case. The magistrate judge issued a recommendation that Goldstein's fees and expenses be radically reduced. The District Court adopted the recommendation. The Court referred the case to the Grievance Committee for the First Department and for the Eastern District of New York. Goldstein appealed.

The Second Circuit held that the District Court had the authority to reduce his fees and its decision to do so in this case was not an abuse of discretion. The Court stated: "Goldstein's arguments regarding the reduction of his fees demonstrate no error, much less and abuse of discretion. When asked to provide evidence of his disbursements, he did not do so. That failure and the treatment of his client, who had to personally seek the court's aid in forcing Goldstein to complete the settlement, slone justify the reduced award."

The Second Circuit held that it did have jurisdiction to consider an appeal from that part of the District Court's order, referring the matter to the disciplinary committees because the order had reputational consequences and potential costs in responding to the referral. This jurisdiction is limited. The Court may only review in such a case "for prejudicial procedural error, clear error in findings of fact, and abuse of discretion in the sanction imposed." Under the circumstances of the case, the Court affirmed this section of the order as well.

The decision in this case can be found here.