Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:

Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?

In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?

The decision in Pacter v. Bernard Hodes Group, Inc. can be found here.

Oops. The Second Circuit held that a student seeking relief under Title III of the Americans with Disabilities Act or under Title V based on a violation of Title III does not have to exhaust administrative remedies. The District Court got it wrong.

The decision in Mc Inerney v. Renssalear Polytechnic Institute can be found here

Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.

The decision in Davis v. Blige can be found here.

World Trade Center. Well, litigation relating to 9/11 goes on. In In re World Trade Center Disaster Site Litigation, the plaintiffs sought to vacate a stay of proceedings pending a decision on an interlocutory appeal relating the purported immunity from suit alleged by the defendants. The motion to vacate the stay was made after argument on the appeal. Without finally deciding the issues on appeal, the Court vacated the stay, holding that it was less likely that the defendants would prevail on appeal and that the public interest favors permitting pretrial proceedings to resume.

The decision can be found here.

Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust.

The Court left open the question as to whether the exhaustion requirement is jurisdictional (and non-waiveable) or merely mandatory (but waiveable). In this case, the School District has not waived the defense.

The decision can be found here.

Reasons. The Second Circuit has vacated a sentence in United States v. Hirliman because the judge for the second time had failed to provide his reasons for deviating from the Guidelines. The Second Circuit had previously remanded the case for resentencing, and ordered the judge to provide reasons for deviation, but he did not do so. The case is being reassigned to a new judge for resentencing.

The decision can be found here.

Guns. The Second Circuit heard arguments in City of New York v. Beretta USA Corp., a case involving whether New York City should be able to go to trial in its efforts to force gun manufacturers and distributors to put a lid on the illegal sale of firearms.

The New York Law Journal's coverage of this oral argument can be found here.

Crawford. The Second Circuit upheld a grant of a petition for habeas corpus, holding that Gregg Becker's Sixth Amendment right of confrontation had been violated by the admission of 11 guilty plea allocutions at his trial. The Supreme Court in Crawford v. Washington had held that out of court testimonial statements cannt be admitted against a defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him.

The decision in United States v. Becker can be found here.

Solomon Amendment. The Second Circuit has held that the Solomon Amendment, which withholds certain federal funding to universities of which any part does not allow military recruiters, does not violate the First Amendment rights of the faculty of a university.

The decision in Burt v. Gates can be found here.

Fraternal. A fraternity tried to prevent the College of Staten Island from inforcing its policy of not recognizing student groups that discriminate on the basis of sex. The district court had granted a preliminary injunction, but the Second Circuit held that the balance of interests favored the College and reversed.

The decision in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York can be found here.

Oral argument. Looks like the Second Circuit is putting some limits on oral argument, at least temporarily. Time will tell if this interim rule becomes permanent.

Appeal Dismissed. The Second Circuit dismissed an appeal where the appellant filed the appeal within 30 days of a corrected judgment, but not within 30 days of the original judgment. Because the corrected judgment did not alter the substantive rights of the parties affected by the first judgment, the time of appeal runs from the time of the first judgment. In this case, a law clerk had purportedly told the appellants' attorneys that an appeal would lie from the second judgment, which the appellate argued required the "exceptional circumstances" doctrine to apply. The Court, however, noted that the "exceptional circumstances" doctrine had been abrogated by the Suprme Court and that parties should not be seeking legal advice from judges or judicial staff.

The decision in In re American Safety Indemnity Co. (American Safety Indemnity Co. v. Official Committee of Unsecured Creditors) can be found here.

Exclusionary Rule. The Second Circuit has held that the exlusionary rule doe not apply to 18 U.S.C. 3109, a statute that empowers federal officers to break into a house to execute a search warrant after being refused admission.

The decision in United States v. Carvajal can be found here.

Another New Blog. I have to add my usual caveat. This is not a new blog. It is a blog that I have just discovered, and which I think my readers might like. Take a look at Wayne Schiess's legal-writing blog. And thanks to Law Dawg Blawg for tipping me off to its existence. Law Dawg Blawg is another fine blog you should check out if you haven't already done so. It's been on my blog roll for ages.

No expert. Derrick Bell's attorney failed to retain a medical expert regarding the reliability of the complaining witness's identification -- the only evidence tying him to the crime. The Second Circuit held that such a failure constituted constitutionally deficient representation, warranting the grant of a writ of habeas corpus.

The decision in Bell v. Miller can be found here.

So Close. The Second Circuit had granted Rodriguez's petition for habeas corpus on the ground that his Sixth Amendment rights had been violated by the state court having excluded his family from his criminal trial. Then, the Supreme Court had to get in the act and vacate and remand the case with instructions to reconsider it in light of the Supreme Court's decision in Carey v. Musladin. So what's the Second Circuit to do? It has now affirmed the district court's decision denying the petition.

The decision in Rodriguez v. Miller can be found here.

Resigning arbitrator. The Second Circuit held that the resignation of an arbitrator did not prevent the remaining arbitrators from acting. To have held otherwise would allow one party to keep any action or any futher action from happening. This is so even when the arbitration agreement set out who the arbitrators would be.

The case in Zeiler v. Deitsch involved a "zabla" arbitration panel where each party picks on arbitrator and those arbitrators pick a third arbitrator who will serve as presiding arbitrator of the panel. The Court held that, in the event of a resignation, the party whose arbitrator resigns would have the power to appoint a replacement. In this case, Zeiler never attempted to do so, so the Court held that the remaining arbitrators could act.

The decision in this case can be found here.

No Notice. The Second Circuit has held that a district court need not give a criminal defendant advance notice before imposing a sentence in excess of the recommendations set out in the Sentencing Guidelines.

The decision in United States v. Hargrove can be found here.

Rare bird. The Second Circuit has affirmed the conviction of Thomas Cullen, an internationally known professional falconer for violation of the the Wild Bird Conservation Act of 1992 Cullen was convicted of illegally importing some Black Sparrowhawks, a very rare bird indeed. Cullen tried to escape imprisonment by asserting a number of technical defenses, but to no avail.

The decision in United States v. Cullen can be found here.