Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, May 31, 2013

New Law School In the Works for Tacoma

According to this Tacoma-Seattle report by Kathleen Cooper, a "12-person steering committee working on [a] plan" to bring a new law school to Tacoma, Washington, some 20 years after the University of Puget Sound sold its law school to Seattle University.  The committee is in its earliest "due diligence" stages according to the report and their are some substantial hurdles to admitting the first student, as the report explains.

Craig Estlinbaum

Read more here:"

May 31, 2013 in Law Schools, News | Permalink | Comments (0)

Thursday, May 30, 2013

Harvard Law Graduate at 22

Cortlan Wickliff, a native Texan and Rice University alum, has graduated from Harvard Law School at the ripe old age of 22.  Akilah Johnson at the Boston Globe has the full story.

Craig Estlinbaum

May 30, 2013 in Current Events, Law Students | Permalink | Comments (0)

Wednesday, May 29, 2013

North Dakota: Settlor's Mistake of Law Requires Trust Reformation

The North Dakota Supreme Court yesterday issued a decision applying mistake of law doctrine to reform a trust.  The case is In Re: Matthew Larson Trust Agreement, 2013 WL 2302304, No. 20120319 (N.D., May 28, 2013).

The case centers around trusts created by Matthew Larson's maternal grandparents, the Clairmonts.  After the trusts were created, Matthew's parents divorced and his father remarried.  That marraige produced other children who became Matthew's half-siblings.

Matthew died intestate, without spouse or descendants, in 2011.  At issue in the case is the provision for distribution of the trust in the even of Matthew Larson's death.  The provision in the first trust read (with emphasis added):

If the Beneficiary shall die before receiving complete distribution of the trust, the Trustee shall distribute the balance of the trust as the Beneficiary designates under his or her Last Will and Testament or under any other instrument exercising this general power of appointment. In the event that the Beneficiary does not exercise this general power of appointment, the Trustee shall distribute the balance of the trust to the Beneficiary's surviving issue by right of representation . . . and if Beneficiary leaves no surviving issue, then equally to Beneficiary's brothers and sisters and the issue of a deceased brother or sister by right of representation.

The distribution terms in the second trust includes similar conditional language, providing for possible distribution to Matthew's "brothers and sisters of Matthew then living."  Because Matthew died with no will and no spouse, without issue and without otherwise appointing surviving beneficiaries, the provision in the trusts distributing trust corpus to his "brothers and sisters" became operative.

The question before the court is whether or not the phrase "Beneficiary's brothers and sisters" includes Greg Larson's children by the second marraige - Matthew's half-siblings.  The Clairmonts argued the trusts should be interpreted to include only Matthew Larson's brothers and sisters who are lineal descendants of the Clairmonts and not the children of Greg Larson by a marraige to someone other than their daughter.  The Clairmonts lost their claim for reformation at trial.

The North Dakota Supreme Court reversed. The Court first noted that North Dakota law allows trusts to be reformed to conform to the settlor's intentions, "if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement."  North Dakota adopted this statute from section 415 of the Uniform Trust Code, which itself mirrors Restatement (Third) of Prop.: Donative Transfers § 12.1 (Tentative Draft No. 1, 1995).  Trust law authorizes reformation in part to prevent unjust enrichment to unintended beneficiaries.

The Court further observed that mistake of law supporting trust reformation differs from mistake of law supporting contract reformation.  The court noted that, "[r]eformation of a contract generally requires a mutual mistake between the parties.'  Contract reformation normally requires mutuality to prevent courts from imposing a reformed contract upon the non-mistaken party that the non-mistaken party did not bargin for. On the other hand, the courts require no such mutuality to reform a trust because the settlor typically does not receive consideration in exchange for creating the trust. Only the settlor's intent is involved in creating the trust.  The Court's comments on the mutuality requirement in the two contexts is particularly instructive.

The Clairmonts testified they were mistakened as to the meaning of "brothers and sisters" and believed the terms meant full-blooded siblings.  Both Clairmonts and the attorney that drafted the second trust testified they believed the term "brothers and sisters" meant siblings that were lineal descendants of the Clairmonts.  They also testified that the Clairmonts did not intend to benefit Greg Larson's children by his second wife in establishing the trust.  The Court determined no evidence existed to dispute this testimony.  The Court concluded that applying the trial court's conclusions correctly to the law requires reformation providing, "that only Matthew Larson's brothers and sisters who are descendants of the Clairmonts may benefit from the trusts."

Craig Estlinbaum

May 29, 2013 in Interesting Cases, State Law | Permalink | Comments (0)

Tuesday, May 28, 2013

Bibas: Justice Kennedy's Sixth Amendment Pragmatism

Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN.  Here is the abstract:

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.

The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.

This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.

Craig Estlinbaum

May 28, 2013 in Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Sunday, May 26, 2013

Leaving Job To Take Retirement Package Disqualifies Individual From Unemployment

Matter of Rubscha v. Commissioner of Labor, ____A.D.3d____(April 18, 2013), demonstrates an important point about leaving work to take advantage of an early retirement package. Basically, that would disqualify an individual from receiving benefits. As the court explained:

Claimant had worked as a mechanical design engineer for 29 years when his employer instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. He had no information that his job would be eliminated, but nevertheless accepted the severance package out of concern that he or his coworkers would be laid off. Inasmuch as leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment, substantial evidence supports the determination of the Unemployment Insurance Appeal Board that claimant voluntarily left his employment without good cause (see Matter of Keane [Commissioner of Labor], 93 AD3d 1002, 1003 [2012], lv denied 20 NY3d 854 [2013]; Matter of Powell [Commissioner of Labor], 79 AD3d 1507, 1507 [2010], lv denied 17 NY3d 701 [2011]). Substantial evidence further supports the Board's finding that claimant received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job" (Matter of Biedka [Hudacs], 196 AD2d 944, 944 [1993]; see Matter of Fisher [Levine], 36 NY2d 146, 153 [1975]).

Mitchell H. Rubinstein


May 26, 2013 in Employment Law | Permalink | Comments (0)

Friday, May 24, 2013

New In Print: Law Review Reviews

The Berkeley Technology Law Journal's Symposium 2012, issue includes the symposium "Orphan Works & Mass Digitization:  Obstacles & Opportunities."  Ms. Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office, delivered the keynote address.

The University of Richmond Law Review's March 2013, issue includes the Allen Chair Issue 2013: "Election Law: Beyond the Red, Purple and Blue."

The Yale Law Journal's May 2013, issue includes "City Unplanning," by David Schleicher (George Mason) and "Rethinking the Federal Eminent Domain Power," by WIlliam Baude (Stanford).  The issue also includes the Storrs Lecture by Cass Sunstein (Harvard) and an Essay by Amy Kapczynski (Yale) & Talha Syed (Boalt).  The Journal's April 2013, issue includes "The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy," by Jed Rubenfeld (Yale), an essay by Larissa Katz (Queen's Univ.) and a book review by Anthony V. Alfieri (Miami) & Angela Onwuachi-Willig (Iowa).  The Yale Journal of Law & the Humanities' Winter 2013 issue includes a Symposium on Living Originalism.  More to follow.

Continue reading

May 24, 2013 in Law Review Articles | Permalink | Comments (0)

Thursday, May 23, 2013

DC Circuit Reverses Board In Campaign Threat Case

The DC Circuit holds that the NLRB lacked substantial evidence to support its conclusion that a hospital executive's comments during a union organizing campaign conveyed a threat to employees. Flagstaff Med. Ctr. Inc. v. NLRB, ___F.3d____(D.C. Cir. April 26, 2013). 

A divided Board  found that the employer's President illegally threatened employees when he told them in a campaign meeting that he would not negotiate if the union was certified. But the court found that while the President told employees he would not personally participate in negotiations, he never ruled out the possibility negotiations would occur.

The court also rejected NLRB's conclusion that the hospital fired a union supporter because of his union activity. Rather, the court concluded that there was ample proof the employee was fired for attendance problems.

Mitchell H. Rubinstein

May 23, 2013 in NLRB | Permalink | Comments (0)

Texas: Facebook "Friendship" Alone Does Not Require Recusal

The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook  "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification.  Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013). 

Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine.  Three months, later, the State filed a motion to revoke.  Defendant entered an open plea of true to the motion's allegations at the revocation hearing.   The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial.  The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.

The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules).  The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party.  For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal.  The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.

Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media.  Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification.  Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here).  Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.

The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues.  For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.

Craig Estlinbaum

May 23, 2013 in Ethics, Interesting Cases, Judges, Recent Developments, Texas Law, Web/Tech | Permalink | Comments (0)

Wednesday, May 22, 2013

Campbell Law Review Call for Papers

From the Campbell Law Review website:

The Campbell Law Review is pleased to announce a call for papers for its National Edition, which will be focused broadly around Internet Law and related themes.  The Internet and associated technologies continue to evolve a pervasively networked, globalized society, creating new forces that are shaping law, society, culture, and the legal profession.

The Law Review seeks to publish papers on legal, social, cultural, and economic issues that relate to the emerging technological changes.  In particular, we seek recent essays that deal with the challenges posed and the steps that must be taken for the law to respond, now and in the future.  Representative topics include privacy law, freedom of speech, and the changing nature of the legal profession.

The call for papers includes an August 1, 2013, submission deadline for publication in Fall 2013.

Hat Tip:  SSRN Legal Scholarship Network.

Craig Estlinbaum

May 22, 2013 in Announcements, Law Review Articles, Technology | Permalink | Comments (0)

Tuesday, May 21, 2013

Morris Nichols recently published an interesting piece on the enforceability of contracts to extend the time period for the application of a statute of limitations.


Dimitry Herman


May 21, 2013 in Contract Issues | Permalink | Comments (0)

Supreme Court Takes Government Prayer Case

Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause.  But can the government open such legislative sessions with prayers exclusively with one faith?  The Supreme Court will decide this question next term in Town of Greece v. Galloway.  Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause.  Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:

The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.

What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”

It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.

Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.

Craig Estlinbaum

May 21, 2013 in Constitutional Law, First Amendment, Interesting Cases, Religion, Supreme Court | Permalink | Comments (0)

Monday, May 20, 2013

Former Chairman Liebman Supports Senate Action on NLRB Nominees

Former NLRB Chairman Liebman recently wrote an opt ed piece calling for the Senate to take action on the 5 nominees to the NLRB. That article can be found here. Chairman Liebman states in part:

Mitchell H. Rubinstein

May 20, 2013 in NLRB | Permalink | Comments (0)

Sunday, May 19, 2013

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013*only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 
New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.
Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, onlythe new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.
The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:
This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.
United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.
Effective March 8, 2013:
1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.
2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.
3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.
The revision date of the Form I-9 is printed on the lower left corner of the form.
Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.
Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein


May 19, 2013 in Employment Law | Permalink | Comments (0)

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

May 19, 2013 in Articles, Criminal Law, Ethics, Interesting Cases | Permalink | Comments (1)

Saturday, May 18, 2013

No Race To the Courthouse in Utah Adoptions

In many situations, the first to file a lawsuit in a controversy obtains procedural and sometimes substantive advantages over later filers.  The Utah Supreme Court held last week, however, that winning the race to the courthouse carries no special advantage in adoption cases.  The case is S.C. vs. Utah, No. 20120016 (Utah May 7, 2013).

In this child protection case, following termination, the foster parents filed first for adoption of the five-year old child at issue and later, a grandmother filed for adoption.  The trial court consolidated the cases then announced that the grandmother's petition would be considered only if the court denied the foster parents' petition.  The trial court then considered and granted the foster parents' petition and dismissed the grandmother's petition.  Grandmother appealed.

The Utah Supreme Court reversed the trial court, holding that the best interest of the child remained the paramount issue when competing adoption petitions were filed.  Considering the petitions in the order of filing, the Court held, created the potential for decision on grounds unrelated to the best interests.  The Court instructed that a trial court considering competing adoption petitions must hear evidence and consider each petition on the merits without giving priority to the first to file.  The best interest of the child therefore, and not filing priority, controls the final determination following the Court's unanimous decision.

In this case, the court resolved a split on the subject in Utah's intermediate courts.  One more note of interest - this case was certified under Utah law for direct appeal to the Utah Supreme Court, so there was no intermediate court opinion.

Craig Estlinbaum

May 18, 2013 in Interesting Cases, Procedure, State Law | Permalink | Comments (0)

Friday, May 17, 2013

Reviewing Radin's Boilerplate

ContractsProf Blog (A Member of the Law Professor Blogs Network) has been hosting a series of short reviews of Margaret Radin's new book Boilerplate: The Fine Print, Vanishing Rights and Rule of Law.  Contributions so far have been by Ethan Leib (Fordham), David Horton (UC Davis), Andrew Gold (DePaul), Theresa Amato (Citizen Works), and Peter Alces (William & Mary).  It looks like there may be more to come. 

Hat Tip:  Kim Krawiec at The Faculty Lounge

Craig Estlinbaum

May 17, 2013 in Blogs, Faculty, Books, Contract Issues | Permalink | Comments (0)

New In Print: The Law Review Review

The Georgetown Journal of Gender and the Law''s Wintere 2013 issue includes their Winter Issue of Gender and Sexuality Law with articles by Seletha R. Butler (Georgia Tech College of Business), Julie Goldscheid (CUNY Law) and Jody M. Prescott (Vermont).  There is also what appears to be a potentially interesting student note titled, "Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: A Roadmap for U.S. Courts," by Emily C. Sharp.  This strikes me as a particularly timely topic and I look forward to reading the note.  One further aside on this journal - The GJGL charges for online content - content that in many instances is available free on SSRN.  I wonder how this model works for the journal.

The Harvard Civil Rights-Civil Liberties Law Review's Winter 2013 issue includes several interesting articles inc luding one near and dear to me as a state trial judge with criminal jurisdiction - "Beyond 'Life and Liberty:' The Evolving Right to Counsel," by John D. King (Washington & Lee). The key lines from the Abstract read: "This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment."  Because I believe the combined effect of Padilla, Frye and Lafler will be greater judicial involvement in plea bargaining processes (but not plea bargain negotiations), contributions such as King's are valuable to gaining understanding into this "evolving" area. 

The new edition of Syracuse Law Review (Vol. 63, No. 2) includes Symposium: The Age of Social Media and It's Impact on the Law.  The symposium includes an article on judicial use of social media by Helia Garrido Hull (Barry).  I have not found the article online yet, however the title suggests Professor Hull reaches a different conclusion than I did in my essay on a similar subject published last year in the St. Mary's Journal of Legal Malpractice & Ethics.   I hope to obtain Professor Hull's article soon and my a comment further on it here.

Volume 55, No. 1, Arizona Law Review includes a collection of articles under the title "Financial Reform During the Great Recession: Dodd-Frank, Executive Compensation and the Card Act."   The issue includes articles by Lisa M. Fairfax (George Washington), Kimberly D. Krawiec (Duke), MIra Ganor (Texas) and Andrea Freeman (Hawai'i).

St. Mary's Law Review's newest issue includes "Secured Transactions History: Protecting Holmes' Notes Through the Conditional Sales Acts," by George Lee Flint, Jr. (St. Mary's).  Scholar: St. Mary's Law Review on Race and Social Justice's newest issue includes articles by Donna McKneelen (Cooley) and Chauntelle Ann Tibbals, Ph.D.

Craig Estlinbaum

May 17, 2013 in Law Review Articles | Permalink | Comments (0)

Thursday, May 16, 2013

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday or a Sunday where such day is kept as a holy day by any party to the case

May judicial or quasi-judicial proceeding be conducted on a Sunday?
This was one of the issues raised by the petitioner in her CPLR Article 78 petition seeking to vacate the appointing authority’s disciplinary determination that resulted in her being dismissed from her position. The petitioner contended that she was impermissibly discharged from her position because one of the dates on which her disciplinary hearing was conducted was a Sunday, citing Judiciary Law §5.
Judiciary Law §5, in pertinent part, provides that: “A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction.”
In rebuttal, the appointing authority argued that out of “a multiple day hearing, only one of the days was a Sunday, and therefore the proceedings cannot be held invalid.”
Supreme Court Justice Catherine M. Bartlett disagreed with the argument advanced by the appointing authority, annulling the appointing authority’s' decision and remanding the matter for “a new hearing and determination de novo in compliance with New York law Judiciary Law §5.
The court, citing Jones v E. Meadow Fire Dist., 21 AD2d 129, explained at common law no judicial act could be done on Sunday; and, in the absence of a permissive statute, a judge had no authority to hold court or to conduct a trial on Sunday.  Judiciary Law §5, said the court, was enacted as a substitute for the common-law rule. The Jones court held that “quasi-judicial proceedings such as disciplinary proceedings before a review board fall under Judiciary Law §5's auspices.”*
On a related point, Justice Bartlett also noted that the mandates of Judiciary Law §5 may not be waived by a party as §5 expresses the public policy of the State.
In Matter of Brody [Owen], 259 App.Div. 720, the Appellate Division held that an arbitration hearing and award were both “illegal and void,” because both occurred on a Sunday and “An arbitration is a judicial proceeding and arbitrators perform a judicial function.”
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

May 16, 2013 in Litigation | Permalink | Comments (0)

Breaking News. 3rd Circuit Follows DC Circuit By Invalidating NLRB Craig Becker Appointment

In a 102 page opinion released a majority of the 3d Cir. (Smith and Van Antwerpen) agreed with the D.C. Cir. that recess appointments can only be made during a recess between congressional sessions.  Judge Greenaway wrote a 55 page dissent.  The majority held that Craig Becker's appointment on March 27, 2010, was invalid.  The case is NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936.

Law Review commentary on this important topic, which will likely go to the Supremes, would be most welcome.

Mitchell H. Rubinstein

May 16, 2013 in Law Review Ideas, NLRB | Permalink | Comments (0)

Tuesday, May 14, 2013

Union Release Time In The Public Sector

    A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.
    I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.
    Law review commentary on this important topic would be most welcome.
    Mitchell H. Rubinstein

May 14, 2013 in Law Review Ideas, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)